INDEMNIFICATION AGREEMENT
Exhibit 10.21
EXECUTION
COPY
This INDEMNIFICATION AGREEMENT is made and entered into as of
November 23, 2010 (this “Agreement”),
between NYTEX Energy Holdings, Inc., a Delaware corporation (the
“Company”), and Xxxxxx Xxxxxxxxx
(“Indemnitee”).
WHEREAS, it is essential to the Company to attract and
retain as directors and officers capable individuals;
WHEREAS, Indemnitee performs a valuable service for the
Company;
WHEREAS, the Company’s Certificate of Incorporation
(the “Certificate”), provides for the
indemnification of the officers and directors of the Company to
the fullest extent permitted by applicable law
(“Law”);
WHEREAS, the Board of Directors of the Company (the
“Board”) has adopted Bylaws (the
“Bylaws”) providing for the indemnification of
the officers and directors of the Company;
WHEREAS, the Certificate, the Bylaws and the Law, by
their nonexclusive nature, permit contracts between the Company
and the officers or directors of the Company with respect to
indemnification of such officers or directors;
WHEREAS, in accordance with the authorization as provided
by the Law, the Company shall purchase and maintain a policy or
policies of directors’ and officers’ liability
insurance (“D&O Insurance”), covering
certain liabilities which may be incurred by its officers or
directors in the performance of their obligations to the Company;
WHEREAS, Indemnitee has certain rights to indemnification
and/or
insurance provided by the Company as provided herein, with the
Company’s acknowledgement and agreement to the foregoing
being a material condition to Indemnitee’s willingness to
serve on the Board; and
WHEREAS, in order to induce Indemnitee to serve as a
director of the Company, the Company has determined and agreed
to enter into this Agreement with Indemnitee.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Indemnity
of Indemnitee.
The Company hereby agrees to hold harmless and indemnify
Indemnitee to the fullest extent permitted by law, as such may
be amended from time to time, and in accordance with all
provisions in this Agreement. In furtherance of the foregoing
indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the
Right of the Company. Indemnitee shall be
entitled to the rights of indemnification provided in this
Section 1 if, by reason of his Corporate Status (as
hereinafter defined), Indemnitee is made, or is threatened to be
made, a party to or participant in any Proceeding (as
hereinafter defined) other than a Proceeding by or in the right
of the Company. Pursuant to this Section 1(a), Indemnitee
shall be indemnified to the fullest extent permitted by
applicable law against all Expenses (as hereinafter defined),
judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with such Proceeding or
any claim, issue or matter therein, if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company and, with
respect to any criminal Proceeding, had no reasonable cause to
believe Indemnitee’s conduct was unlawful.
(b) Proceedings by or in the Right of the
Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 1 if, by
reason of Indemnitee’s Corporate Status, Indemnitee is
made, or is threatened to be made, a party to or participant in
any Proceeding brought by or in the right of the Company.
Pursuant to this Section 1(b), Indemnitee shall be
indemnified to the fullest extent permitted by applicable law
against all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with
such Proceeding or any claim, issue, or matter therein if
Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best
interests of the Company; provided, however, if
applicable law so provides, no indemnification against such
Expenses shall be made in respect of any claim, issue or matter
in such Proceeding as to which Indemnitee shall have been
finally adjudged to be liable to the Company unless and only to
the extent that the Court of Chancery of the State of Delaware
or any court in which such Proceeding was brought shall
determine upon application that such indemnification may be
made, despite the adjudication of liability.
(c) Indemnification for Expenses of a Party Who is
Wholly or Partly Successful. Notwithstanding
any other provision of this Agreement, to the extent that
Indemnitee is, by reason of Indemnitee’s Corporate Status,
a party to and is successful, on the merits or otherwise, in any
Proceeding, or in defense of any claim, issue or matter therein,
in whole or in part, Indemnitee shall be indemnified to the
maximum extent permitted by law as such may be amended from time
to time, against all Expenses actually incurred by Indemnitee or
on Indemnitee’s behalf in connection therewith. If
Indemnitee is not wholly successful in such 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 Indemnitee against all Expenses actually
incurred by him or on his behalf 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.
(d) Indemnification for Expenses of a
Witness. Notwithstanding any other provision
of this Agreement, to the fullest extent permitted by applicable
law, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a witness in any Proceeding
to which Indemnitee is not a party, Indemnitee shall be
indemnified against all Expenses actually incurred by Indemnitee
or on Indemnitee’s behalf in connection therewith.
Section 2. Additional
Indemnity.
In addition to, and without regard to any limitations on, the
indemnification provided for in Section 1 hereof, the
Company shall and hereby does indemnify and hold harmless to the
fullest extent permitted by applicable law Indemnitee against
all Expenses, judgments, penalties, fines and amounts paid in
settlement actually incurred by Indemnitee or on
Indemnitee’s behalf if, by reason of Indemnitee’s
Corporate Status, Indemnitee is made, or is threatened to be
made, a party to or participant in any Proceeding (including a
Proceeding by or in the right of the Company), including,
without limitation, all liability arising out of, the negligence
or active or passive wrongdoing of Indemnitee. The only
limitation that shall exist upon the Company’s obligations
pursuant to this Agreement shall be that the Company shall not
be obligated to make any payment to Indemnitee that is finally
determined (under the procedures, and subject to the
presumptions, set forth in Sections 5 and 6 hereof) to not
be permitted by Law.
Section 3. Contribution
in the Event of Joint Liability.
(a) In respect of any threatened, pending or completed
Proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in the Proceeding), the
Company shall pay, in the first instance, the entire amount of
any judgment or settlement in connection with any Proceeding
without requiring Indemnitee to contribute to such payment and
the Company hereby waives and relinquishes any right of
contribution it may have against Indemnitee. The Company shall
not enter into any settlement of any Proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined
in such Proceeding) unless such settlement provides for a full
and final release of all claims asserted against Indemnitee.
(b) Without diminishing or impairing the obligations of the
Company set forth in the preceding subparagraph, if, for any
reason, Indemnitee shall elect or be required to pay all or any
portion of any
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judgment or settlement in any threatened, pending or completed
Proceeding in which the Company is jointly liable with
Indemnitee (or would be if joined in such Proceeding), the
Company shall pay to Indemnitee the entire amount of any
judgment or settlement of such Proceeding without requiring
Indemnitee to contribute to such payment and the Company hereby
waives and relinquishes any right of contribution it may have
against Indemnitee. Indemnitee shall not enter into any
settlement of any Proceeding in which the Company is jointly
liable with Indemnitee (or would be if joined in such
Proceeding) unless such settlement provides for a full and final
release of all claims asserted against the Company.
(c) The Company hereby agrees to fully indemnify and hold
Indemnitee harmless from any indemnifiable claims of
contribution which may be brought by officers, directors or
employees of the Company other than any indemnitee who may be
jointly liable with Indemnitee.
(d) To the fullest extent permissible under applicable law,
if the indemnification provided for in this Agreement is
unavailable to Indemnitee for any reason whatsoever, the
Company, in lieu of indemnifying Indemnitee, shall contribute to
the amount incurred by Indemnitee, whether for judgments, fines,
penalties, excise taxes, amounts paid or to be paid in
settlement,
and/or
Expenses, in connection with any claim relating to any event
requiring indemnification of Indemnitee under the Certificate,
the Bylaws, this Agreement, or of any other resolutions or
provisions thereof in such proportion as is deemed fair and
reasonable in light of all of the circumstances of such
Proceeding in order to reflect (i) the relative benefits
received by the Company and Indemnitee as a result of the
event(s)
and/or
transaction(s) giving cause to such Proceeding;
and/or
(ii) the relative fault of the Company (and its directors,
officers, employees and agents) and Indemnitee in connection
with such event(s)
and/or
transaction(s).
Section 4. Advancement
of Expenses.
Notwithstanding any other provision of this Agreement, the
Company shall advance, to the fullest extent permitted by law,
all Expenses incurred by or on behalf of Indemnitee in
connection with any Proceeding by reason of Indemnitee’s
Corporate Status within thirty (30) days after the receipt
by the Company of a statement or statements from Indemnitee
requesting such advance or advances from time to time, whether
prior to or after final disposition of such Proceeding. Such
statement or statements shall include or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to
repay any Expenses advanced if, and only to the extent that, it
shall ultimately be determined that Indemnitee is not entitled
to be indemnified against such Expenses. Advances shall include
any and all Expenses incurred pursuing an action to enforce this
right of advancement, including Expenses incurred preparing and
forwarding statements to the Company to support the advances
claimed. Any advances and undertakings to repay pursuant to this
Section 4 shall be unsecured and interest free. This
Section 4 shall not apply to any claim made by Indemnitee
for which indemnity is excluded pursuant to Section 8
hereof.
Section 5. Procedures
and Presumptions for Determination of Entitlement to
Indemnification.
It is the intent of this Agreement to secure for Indemnitee
rights of indemnity that are as favorable as may be permitted
under the law and public policy of the State of Delaware.
Accordingly, the parties agree that the following procedures and
presumptions shall apply in the event of any question as to
whether Indemnitee is entitled to indemnification under this
Agreement:
(a) To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request for
indemnification or advancement of Expenses, including therein or
therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to
indemnification as soon as is reasonably practicable following
the receipt by Indemnitee of written notice thereof. Such
written request to the Company shall include a description of
the nature of the Proceeding and the facts underlying such
Proceeding, to the extent known. The omission by Indemnitee to
notify the Company hereunder will not relieve the Company from
any liability that it may have to Indemnitee hereunder or
otherwise than under this Agreement, and any delay in so
notifying the Company shall not constitute a waiver by
Indemnitee of any rights under this Agreement. The Secretary of
the Company (or other executive officer if the
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secretary is otherwise unavailable) shall, promptly upon receipt
of such a request for indemnification, advise the Board in
writing that Indemnitee has requested indemnification.
(b) If a claim under this Agreement, under any statute, or
under any provision of the Certificate or Bylaws providing for
indemnification is not paid in full by the Company within thirty
(30) days after a written request for payment thereof has
first been received by the Company, Indemnitee shall, at any
time thereafter, be entitled to an adjudication in an
appropriate court of the State of Delaware, or in any other
court of competent jurisdiction, of Indemnitee’s
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. The Company shall
not oppose Indemnitee’s right to seek any such adjudication
or award in arbitration. In any such action by Indemnitee to
recover the unpaid amount of the claim, Indemnitee shall also be
entitled to be paid for the Expenses 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 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
Section 5 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 the Board, any committee
or subgroup of the Board, independent legal counsel or the
Company’s 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 the Board, any committee or subgroup of the
Board, independent legal counsel or the Company’s
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.
(c) Indemnitee shall be deemed to have acted in good faith
if Indemnitee’s action is based on the records or books of
account of the Enterprise (as defined below), including
financial statements, or on information supplied to Indemnitee
by the officers of the Enterprise in the course of their duties,
or on the advice of legal counsel for the Enterprise or on
information or records given or reports made to the Enterprise
by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Enterprise.
In addition, the knowledge
and/or
actions, or failure to act, of any director, officer, agent or
employee of the Enterprise shall not be imputed to Indemnitee
for purposes of determining the right to indemnification under
this Agreement. Whether or not the foregoing provisions of this
Section 5(c) are satisfied, it shall in any event be
presumed that Indemnitee has at all times acted in good faith
and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company. Anyone seeking to
overcome this presumption shall have the burden of proof.
(d) The Company acknowledges that a settlement or other
disposition short of final judgment may be successful if it
permits a party to avoid expense, delay, distraction, disruption
and uncertainty. In the event that any Proceeding to which
Indemnitee is a party is resolved in any manner other than by
adverse judgment against Indemnitee (including, without
limitation, settlement of such Proceeding with or without
payment of money or other consideration) it shall be presumed
that Indemnitee has been successful on the merits or otherwise
in such Proceeding. Anyone seeking to overcome this presumption
shall have the burden of proof.
(e) 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 Indemnitee to
indemnification or create a presumption that Indemnitee did not
act in good faith and in a manner which Indemnitee reasonably
believed to be in or opposed to the best interests of the
Company or, with respect
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to any criminal Proceeding, that Indemnitee had reasonable cause
to believe that Indemnitee’s conduct was unlawful.
Section 6. Remedies
of Indemnitee.
(a) In the event that Indemnitee seeks a judicial
adjudication of Indemnitee’s rights under, or to recover
damages for breach of, this Agreement, or to recover under any
D&O Insurance policies maintained by the Company, the
Company shall pay on Indemnitee’s behalf, in advance, any
and all expenses (of the types described in the definition of
Expenses in Section 13(d) of this Agreement) actually
incurred by Indemnitee in such judicial adjudication, regardless
of whether Indemnitee ultimately is determined to be entitled to
such indemnification, advancement of expenses, or insurance
recovery.
(b) The Company shall be precluded from asserting in any
judicial proceeding commenced pursuant to this Section 6
that the procedures and presumptions of this Agreement are not
valid, binding and enforceable and shall stipulate in any such
court that the Company is bound by all the provisions of this
Agreement. The Company shall indemnify Indemnitee against any
and all Expenses and, if requested by Indemnitee, shall (within
thirty (30) days after receipt by the Company of a written
request thereof) advance, to the fullest extent permitted by
law, such expenses to Indemnitee, which are incurred by
Indemnitee in connection with any action brought by Indemnitee
for indemnification or advance of Expenses from the Company
under this Agreement or under any D&O Insurance policies
maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advancement of Expenses, or insurance recovery, as the case may
be.
(c) Notwithstanding anything in this Agreement to the
contrary, unless required by law, no determination as to
entitlement to indemnification under this Agreement shall be
required to be made prior to the final disposition of the
Proceeding.
Section 7. Non-Exclusivity;
Survival of Rights; Insurance; 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 Certificate, the Bylaws, any agreement, a vote of
stockholders, a resolution of directors, or otherwise. No
amendment, alteration, or repeal of the Certificate, the Bylaws,
this Agreement or of any other provision hereof shall limit or
restrict any right of Indemnitee under this Agreement in respect
of any action taken or omitted by such Indemnitee in
Indemnitee’s Corporate Status prior to such amendment,
alteration or repeal. To the extent that a change in the law,
whether by statute or judicial decision, permits greater
indemnification than would be afforded currently under the
Certificate, the Bylaws 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. To the extent
that a change in the law, whether by statute or judicial
decision, limits the indemnification rights that would be
afforded currently under the Certificate, the Bylaws and this
Agreement, it is the intent of the parties hereto that such
change, to the extent not otherwise required by such law,
statute, or rule to be applied to this Agreement, shall have no
effect on this Agreement or the parties’ rights and
obligations hereunder. 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. The indemnification provided under this
Agreement shall continue as to Indemnitee for any action taken
or not taken while serving in an indemnified capacity even
though he may have ceased to serve in such capacity at the time
of any action or other covered Proceeding.
(b) To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors,
officers, employees or agents or fiduciaries of the Company or
of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person
serves at the request of the Company, Indemnitee shall be
covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for
any such director, officer, employee, agent or fiduciary under
such policy or policies.
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(c) 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 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 8. Exception
to Right of Indemnification.
Notwithstanding any provision in this Agreement, the Company
shall not be obligated under this Agreement to make any
indemnity in connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on
behalf of Indemnitee under any insurance policy, except with
respect to any excess beyond the amount paid under any insurance
policy; or
(b) in connection with any Proceeding (or any part of any
Proceeding) initiated by Indemnitee, including any Proceeding
(or any part of any Proceeding) initiated by Indemnitee against
the Company or its directors, officers, employees or other
indemnitees, unless (i) the Board authorized the Proceeding
(or any part of any Proceeding) prior to its initiation,
(ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under
applicable law, (iii) the Proceeding was initiated to
establish or enforce a right to indemnification under this
Agreement, any other agreement or insurance policy, or under the
Bylaws or the Certificate or (iv) as otherwise required
under the laws of the State of Delaware.
Section 9. Duration
of Agreement.
All agreements and obligations of the Company contained herein
shall continue during the period Indemnitee is a director of the
Company (or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and shall
continue thereafter so long as Indemnitee shall be subject to
any Proceeding (or any proceeding commenced under this
Agreement) by reason of Indemnitee’s Corporate Status,
whether or not he 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.
Section 10. Period
of Limitations.
No legal action shall be brought and no cause of action shall be
asserted by or in the right of the Company against Indemnitee,
Indemnitee’s estate, spouse, heirs, executors or personal
or legal representatives after the expiration of two years from
the date of accrual of such cause of action, and any claim or
cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action
within such two-year period; provided, however, that if
any shorter period of limitations is otherwise applicable to any
such cause of action, such shorter period shall govern.
Section 11. Security.
To the extent requested by Indemnitee and approved by the Board,
the Company may at any time and from time to time provide
security to Indemnitee for the Company’s obligations
hereunder through an irrevocable bank line of credit, funded
trust or other collateral. Any such security, once provided to
Indemnitee, may not be revoked or released without the prior
written consent of Indemnitee.
Section 12. Enforcement.
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and assumes the obligations imposed
on it hereby in order to induce Indemnitee to serve or continue
to serve as a director of the Company, and the Company
acknowledges that Indemnitee is relying upon this Agreement in
serving as a director of the Company.
(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; provided however, that this
Agreement is a supplement
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to and in furtherance of the Certificate, the Bylaws and any
applicable law, and shall not be deemed a substitute thereof,
nor to diminish or abrogate any rights of Indemnitee thereunder.
Section 13. Definitions.
For purposes of this Agreement:
(a) “Business Day” means any day
except Saturday, Sunday or any day on which banks are generally
not open for business in the City of New York.
(b) “Corporate Status” describes
the status of a person who is or was a director, officer,
employee or agent or fiduciary of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise that such person is or was serving at
the request of the Company, including on or prior to the date of
this Agreement.
(c) “Enterprise” shall mean the
Company and any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise of which
Indemnitee is or was serving at the express written request of
the Company as a director, officer, employee, agent or fiduciary.
(d) “Expenses” shall mean all
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, participating, or being or preparing to be a
witness in a Proceeding.
(e) “Proceeding” includes any
threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or
completed proceeding, whether brought by or in the right of the
Company or otherwise and whether civil, criminal, administrative
or investigative, in which Indemnitee was, is or will be
involved as a party or otherwise, by reason of the fact that
Indemnitee is or was an officer or director of the Company, by
reason of any action taken by Indemnitee or of any inaction on
Indemnitee’s part while acting as a director of the
Company, or by reason of the fact that Indemnitee is or was
serving at the request of the Company as a director, officer,
employee, agent or fiduciary of another corporation,
partnership, joint venture, trust or other Enterprise; in each
case whether or not he 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; including
one pending on or before the date of this Agreement.
Section 14. 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:
(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 that is not itself invalid, illegal, or
unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent
permitted by law; (b) such provision or provisions shall be
deemed reformed to the extent necessary to conform to applicable
law and to give the 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 thereby.
Without limiting the generality of the foregoing, this Agreement
is intended to confer upon Indemnitee indemnification rights to
the fullest extent permitted by applicable laws. In the event
any provision hereof conflicts with any applicable law, such
provision shall be deemed modified, consistent with the
aforementioned intent, to the extent necessary to resolve such
conflict.
Section 15. Attorneys’
Fees.
In the event that any action is instituted by Indemnitee under
this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all expenses (of the
types described in the
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definition of Expenses in Section 13(d) hereof) incurred by
Indemnitee with respect to such action. In the event of an
action instituted by or in the name of the Company under this
Agreement or to enforce or interpret any of the terms of this
Agreement, Indemnitee shall be entitled to be paid all expenses
(of the types described in the definition of Expenses in
Section 13(d) hereof) in defense of such action (including
with respect to Indemnitee’s counterclaims and cross claims
made in such action).
Section 16. Modification
and Waiver.
No supplement, modification, termination or amendment of this
Agreement shall be binding unless executed in writing by both of
the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.
Section 17. Assignment.
This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective
successors (including any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or
substantially all of the business
and/or
assets of the Company), assigns, spouses, heirs, and personal
and legal representatives. The Company shall require and cause
any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all, substantially all or a
substantial part, of the business
and/or
assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and
agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform if no
such succession had taken place. This Agreement shall continue
in effect regardless of whether Indemnitee continues to serve as
a director, officer, employee, or agent of the Company or of any
other Enterprise. Indemnitee may not assign his rights hereunder
without the prior written consent of the Company.
Section 18. Notice
by Indemnitee.
Indemnitee agrees to notify the Company in writing within five
(5) after being served or otherwise receiving with any
summons, citation, subpoena, complaint, indictment, information
or other document relating to any Proceeding or matter which may
be subject to indemnification covered hereunder. The failure to
so notify the Company shall not relieve the Company of any
obligation which it may have to the Indemnitee under this
Agreement or otherwise unless and only to the extent that such
failure or delay materially prejudices the Company.
Section 19. Notices.
All notices and other communications given or made pursuant to
this Agreement shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party
to be notified, (b) when sent by confirmed electronic mail
or facsimile if sent during normal business hours of the
recipient, and if not so confirmed, then on the next Business
Day, (c) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage
prepaid, or (d) one (1) day after deposit with a
nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All
communications shall be sent:
To the Indemnitee:
WayPoint Capital Partners, LLC
000 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx X000
Xxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
Phone: (000) 000-0000
Facsimile:
(000) 000-0000
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With a copy (which shall not constitute notice) to:
Winston & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
To the Company:
00000 Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxx
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxxxxx & Price, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other representative or at such other address of a
party as such party may furnish to the other parties in writing.
Any notice which is delivered personally or by facsimile or
other electronic transmission in the manner provided herein
shall be deemed to have been duly given to the party to whom it
is directed upon actual receipt by such party or its agent. Any
notice which is addressed and mailed in the manner herein
provided shall be conclusively presumed to have been duly given
to the party to which it is addressed at the close of business,
local time of the recipient, on the fourth Business Day after
the day it is so placed in the mail (or on the first Business
Day after placed in the mail if sent by overnight courier) or,
if earlier, the time of actual receipt.
Section 20. Counterparts.
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together
shall constitute one and the same Agreement. This Agreement may
also be executed and delivered by facsimile signature and in two
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
Section 21. Captions.
The captions 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.
Section 22. Governing
Law and Consent to Jurisdiction.
This Agreement and the legal relations among the parties shall
be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without regard to its
conflict of law rules. The Company and Indemnitee hereby
irrevocably and unconditionally (i) agree that any action
or proceeding arising out of or in connection with this
Agreement shall be brought only in the Chancery Court of the
State of Delaware (the “Delaware Court”), and
not in any other state or federal court in the United States of
America or any court in any other country, (ii) consent to
submit to the exclusive jurisdiction of the Delaware Court for
purposes of any action or proceeding arising out of or in
connection with this Agreement, (iii) waive any objection
to the laying of venue of any such action or proceeding in the
Delaware Court, and (iv) waive, and agree not to plead or
to make, any claim that any such action or proceeding brought in
the Delaware Court has been brought in an improper or
inconvenient forum.
9
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
| By: |
/s/ Xxxxxxx
X. Xxxxxx |
Name: XXXXXXX X. XXXXXX
Title: PRESIDENT AND CEO
[Signature Page to Parent Indemnification Agreement]
10
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
| By: |
Name:
Title:
INDEMNITEE
/s/ Xxxxxx
Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
[Signature Page to Parent Indemnification Agreement]
11
