FORM OF INDEMNIFICATION AGREEMENT
Exhibit 10.9
FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “ Agreement ”) is
made as of November __, 2017, by and between BIG ROCK PARTNERS
ACQUISITION CORP., a Delaware corporation (the “ Company
”), and _______________ (“ Indemnitee
”).
RECITALS
WHEREAS, highly competent persons have become more reluctant to
serve publicly-held corporations as directors, officers or other
capacities unless they are provided with adequate protection
through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their
service to and activities on behalf of such
corporations.
WHEREAS, the Board of Directors of the Company (the “ Board
”) has determined that, in order to attract and retain
qualified individuals as directors, officers and special advisors,
the Company will attempt to maintain on an ongoing basis, at its
sole expense, liability insurance to protect such persons serving
the Company and its subsidiaries from certain liabilities. Although
the furnishing of such insurance has been a customary and
widespread practice among United States-based corporations and
other business enterprises, the Company believes that, given
current market conditions and trends, such insurance may be
available to it in the future only at higher premiums and with more
exclusions. At the same time, directors, officers and others are
being increasingly subjected to expensive and time-consuming
litigation. The Certificate of Incorporation (as may be amended
and/or restated from time to time, the “ Charter ”)
and/or the Bylaws (as may be amended and/or restated from time to
time, the “ Bylaws ”) of the Company require
indemnification of the officers and directors of the Company, and
permit indemnification of employees and agents of the Company.
Indemnitee may also be entitled to indemnification pursuant to
applicable provisions of the Delaware General Corporation Law
(“ DGCL ”). The Charter, Bylaws and the DGCL expressly
provide that the indemnification provisions set forth therein are
not exclusive, and thereby contemplate that contracts may be
entered into between the Company and members of the board of
directors, officers and other persons with respect to
indemnification, hold harmless, exoneration, advancement and
reimbursement rights.
WHEREAS, the uncertainties relating to such insurance and to
indemnification have increased the difficulty of attracting and
retaining such persons.
WHEREAS, the Board has determined that the increased difficulty in
attracting and retaining such persons is detrimental to the best
interests of the Company’s stockholders and that the Company
should act to assure such persons that there will be increased
certainty of such protection in the future.
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, hold harmless,
exonerate and to advance expenses on behalf of, such persons to the
fullest extent permitted by applicable law so that they will serve
or continue to serve the Company free from undue concern that they
will not be so protected against liabilities.
WHEREAS, this Agreement is a supplement to and in furtherance of
the Charter and Bylaws of the Company and any resolutions adopted
pursuant thereto, and shall not be deemed a substitute therefor,
nor to diminish or abrogate any rights of Indemnitee
thereunder.
WHEREAS, Indemnitee may not be willing to serve as an officer,
director or special advisor of the Company, as applicable, without
adequate protection, and the Company desires Indemnitee to serve in
one or more of such capacities. Indemnitee is willing to serve or
continue to serve for or on behalf of the Company on the condition
that Indemnitee be so indemnified.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and
agree as follows:
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TERMS AND CONDITIONS
1. SERVICES
TO THE COMPANY . In consideration of the Company’s covenants
and obligations hereunder, Indemnitee will serve or continue to
serve as an officer, director, special advisor and/or key employee
of the Company, as applicable, for so long as Indemnitee is duly
elected or appointed or until Indemnitee tenders his or her
resignation or until Indemnitee is removed. The foregoing
notwithstanding, this Agreement shall continue in full force and
effect after Indemnitee has ceased to serve as a director, officer,
special advisor and/or key employee of the Company, as applicable,
as provided in Section 16. This Agreement, however, shall not
impose any obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any.
2. DEFINITIONS
.. As used in this Agreement:
(a) References
to “ agent ” shall mean any person who is or was a
director, officer, employee or special advisor of the Company or a
subsidiary of the Company or other person authorized by the Company
to act for the Company, to include such person serving in such
capacity as a director, officer, employee, fiduciary or other
official of another corporation, partnership, limited liability
company, joint venture, trust or other enterprise at the request
of, for the convenience of, or to represent the interests of the
Company or a subsidiary of the Company.
(b) The
terms “ Beneficial Owner ” and “ Beneficial
Ownership ” shall have the meanings set forth in
Rule 13d-3 promulgated under the Exchange Act (as defined
below) as in effect on the date hereof.
(c) A
“ Change in Control ” shall be deemed to occur upon the
earliest to occur after the later of the date of this Agreement or
the consummation of the Company’s initial public offering of
any of the following events:
(i) Acquisition
of Stock by Third Party. Any Person (as defined below) is or
becomes the Beneficial Owner, directly or indirectly, of securities
of the Company representing fifteen percent (15%) or more of the
combined voting power of the Company’s then outstanding
securities entitled to vote generally in the election of directors,
unless (1) the change in the relative Beneficial Ownership of
the Company’s securities by any Person results solely from a
reduction in the aggregate number of outstanding shares of
securities entitled to vote generally in the election of directors,
or (2) such acquisition was approved in advance by the
Continuing Directors (as defined below) and such acquisition would
not constitute a Change in Control under part (iii) of this
definition;
(ii) Change
in Board of Directors. Individuals who, as of the date hereof,
constitute the Board, and any new director whose election by the
Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two thirds of the
directors then still in office who were directors on the date
hereof or whose election for nomination for election was previously
so approved (collectively, the “ Continuing Directors
”), cease for any reason to constitute at least a majority of
the members of the Board;
(iii) Corporate
Transactions. The effective date of a merger, stock exchange, asset
acquisition, stock purchase, recapitalization, reorganization or
other similar business combination of the Company (a “
Business Combination ”), in each case, unless, following such
Business Combination: (1) all or substantially all of the
individuals and entities who were the Beneficial Owners of
securities entitled to vote generally in the election of directors
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 51% of the combined voting power
of the then outstanding securities of the Company entitled to vote
generally in the election of directors resulting from such Business
Combination (including, without limitation, a corporation which as
a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or
through one or more Subsidiaries (as defined below)) in
substantially the same proportions as their ownership immediately
prior to such Business Combination, of the securities entitled to
vote generally in the election of directors; (2) no Person
(excluding any corporation resulting from such Business
Combination) is the Beneficial Owner, directly or indirectly, of
15% or more of the combined voting power of the then outstanding
securities entitled to vote generally in the election of directors
of the surviving corporation except to the extent that such
ownership existed prior to the Business Combination; and
(3) at least a majority of the Board of Directors of the
corporation resulting from such Business Combination were
Continuing Directors at the time of the execution of the initial
agreement, or of the action of the Board of Directors, providing
for such Business Combination;
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(iv) Liquidation.
The approval by the stockholders of the Company of a complete
liquidation of the Company or an agreement or series of agreements
for the sale or disposition by the Company of all or substantially
all of the Company’s assets, other than factoring the
Company’s current receivables or escrows due (or, if such
stockholder approval is not required, the decision by the Board to
proceed with such a liquidation, sale, or disposition in one
transaction or a series of related transactions); or
(v) Other
Events. There occurs any other event of a nature that would be
required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or a response to any
similar item on any similar schedule or form) promulgated under the
Exchange Act (as defined below), whether or not the Company is then
subject to such reporting requirement.
(d) “
Corporate Status ” describes the status of a person who is or
was a director, officer, trustee, general partner, manager,
managing member, fiduciary, employee, special advisor or agent of
the Company or of any other Enterprise (as defined below) which
such person is or was serving at the request of the
Company.
(f) “
Disinterested Director ” shall mean a director of the Company
who is not and was not a party to the Proceeding (as defined below)
in respect of which indemnification is sought by
Indemnitee.
(g) “
Enterprise ” shall mean the Company and any other
corporation, constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger to which the
Company (or any of its wholly owned subsidiaries) is a party,
limited liability company, partnership, joint venture, trust,
employee benefit plan or other enterprise of which Indemnitee is or
was serving at the request of the Company as a director, officer,
trustee, general partner, managing member, fiduciary, employee,
special advisor or agent.
(h) “
Exchange Act ” shall mean the Securities Exchange Act of
1934, as amended.
(i) “
Expenses ” shall include all direct and indirect costs, fees
and expenses of any type or nature whatsoever, including, without
limitation, all reasonable attorneys’ fees and costs,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, fees of private investigators and
professional advisors, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, fax
transmission charges, secretarial services and all other
disbursements, obligations or expenses in connection with
prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, settlement or
appeal of, or otherwise participating in, a Proceeding (as defined
below), including reasonable compensation for time spent by the
Indemnitee for which he or she is not otherwise compensated by the
Company or any third party. Expenses also shall include Expenses
incurred in connection with any appeal resulting from any
Proceeding (as defined below), including without limitation the
principal, premium, security for, and other costs relating to any
cost bond, supersedes bond, or other appeal bond or its equivalent.
Expenses, however, shall not include amounts paid in settlement by
Indemnitee or the amount of judgments or fines against
Indemnitee.
(j) References
to “ fines ” shall include any excise tax assessed on
Indemnitee with respect to any employee benefit plan; references to
“serving at the request of the Company” shall include
any service as a director, officer, employee, special advisor,
agent or fiduciary of the Company which imposes duties on, or
involves services by, such director, officer, employee, special
advisor, agent or fiduciary with respect to an employee benefit
plan, its participants or beneficiaries; and if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in
the best interests of the participants and beneficiaries of an
employee benefit plan, Indemnitee shall be deemed to have acted in
a manner “not opposed to the best interests of the
Company” as referred to in this Agreement.
(k) “
Independent Counsel ” shall mean a law firm or a member of a
law firm with significant experience in matters of corporation law
and that neither presently is, nor in the past five years has been,
retained to represent: (i) the Company 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 (as defined below)
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
Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
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(l) The
term “ Person ” shall have the meaning as set forth in
Sections 13(d) and 14(d) of the Exchange Act as in effect on the
date hereof; provided, however, that “Person” shall
exclude: (i) the Company; (ii) any Subsidiaries (as defined
below) of the Company; (iii) any employment benefit plan of
the Company or of a Subsidiary (as defined below) of the Company or
of any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company; and (iv) any
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or of a Subsidiary (as defined below)
of the Company or of a corporation owned directly or indirectly by
the stockholders of the Company in substantially the same
proportions as their ownership of stock of the
Company.
(m) The
term “ Proceeding ” shall include any threatened,
pending or completed action, suit, arbitration, mediation,
alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed
proceeding, whether brought in the right of the Company or
otherwise and whether of a civil (including intentional or
unintentional tort claims), criminal, administrative or
investigative nature, in which Indemnitee was, is, will or might be
involved as a party or otherwise by reason of the fact that
Indemnitee is or was a director, officer, employee or special
advisor of the Company, by reason of any action (or failure to act)
taken by Indemnitee or of any action (or failure to act) on
Indemnitee’s part while acting as a director, officer,
employee or special advisor 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, trustee, general partner, managing
member, fiduciary, employee, special advisor or agent of any other
Enterprise, in each case whether or not serving in such capacity at
the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement.
(n) The
term “ Subsidiary ,” with respect to any Person, shall
mean any corporation, limited liability company, partnership, joint
venture, trust or other entity of which a majority of the voting
power of the voting equity securities or equity interest is owned,
directly or indirectly, by that Person.
3. INDEMNITY
IN THIRD-PARTY PROCEEDINGS . To the fullest extent permitted by
applicable law, the Company shall indemnify, hold harmless and
exonerate Indemnitee in accordance with the provisions of this
Section 3 if Indemnitee was, is, or is threatened to be made,
a party to or a participant (as a witness, deponent or otherwise)
in any Proceeding, other than a Proceeding by or in the right of
the Company to procure a judgment in its favor by reason of
Indemnitee’s Corporate Status. Pursuant to this
Section 3, Indemnitee shall be indemnified, held harmless and
exonerated against all Expenses, judgments, liabilities, fines,
penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or
in respect of such Expenses, judgments, fines, penalties 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 he reasonably believed to be in
or not opposed to the best interests of the Company and, in the
case of a criminal Proceeding, had no reasonable cause to believe
that Indemnitee’s conduct was unlawful.
4.
INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. To the
fullest extent permitted by applicable law, the Company shall
indemnify, hold harmless and exonerate Indemnitee in accordance
with the provisions of this Section 4 if Indemnitee was, is,
or is threatened to be made, a party to or a participant (as a
witness, deponent or otherwise) in any Proceeding by or in the
right of the Company to procure a judgment in its favor by reason
of Indemnitee’s Corporate Status. Pursuant to this
Section 4, Indemnitee shall be indemnified, held harmless and
exonerated 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 he reasonably believed to be in
or not opposed to the best interests of the Company. No
indemnification, hold harmless or exoneration for Expenses shall be
made under this Section 4 in respect of any claim, issue or
matter as to which Indemnitee shall have been finally adjudged by a
court to be liable to the Company, unless and only to the extent
that any court in which the Proceeding was brought or the Delaware
Court shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, Indemnitee is fairly and reasonably entitled to
indemnification, to be held harmless or to
exoneration.
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5. INDEMNIFICATION
FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL .
Notwithstanding any other provisions of this Agreement except for
Section 26, to the extent that Indemnitee was or is, by reason of
Indemnitee’s Corporate Status, a party to (or a participant
in) 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, the Company shall, to the fullest extent
permitted by applicable law, indemnify, hold harmless and exonerate
Indemnitee against all Expenses actually and reasonably incurred by
Indemnitee 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, to the fullest
extent permitted by applicable law, indemnify, hold harmless and
exonerate Indemnitee against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in
connection with each successfully resolved claim, issue or matter.
If the Indemnitee is not wholly successful in such Proceeding, the
Company also shall, to the fullest extent permitted by applicable
law, indemnify, hold harmless and exonerate Indemnitee against all
Expenses reasonably incurred in connection with a claim, issue or
matter related to any claim, issue, or matter on which the
Indemnitee was successful. 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.
6. INDEMNIFICATION
FOR EXPENSES OF A WITNESS . Notwithstanding any other provision of
this Agreement except for Section 26, to the extent that Indemnitee
is, by reason of Indemnitee’s Corporate Status, a witness or
deponent in any Proceeding to which Indemnitee was or is not a
party or threatened to be made a party, he shall, to the fullest
extent permitted by applicable law, be indemnified, held harmless
and exonerated against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in
connection therewith.
7. CONTRIBUTION
IN THE EVENT OF JOINT LIABILITY.
(a) To
the fullest extent permissible under applicable law, if the
indemnification, hold harmless and/or exoneration rights provided
for in this Agreement are unavailable to Indemnitee in whole or in
part for any reason whatsoever, the Company, in lieu of
indemnifying, holding harmless or exonerating Indemnitee, shall
pay, in the first instance, the entire amount incurred by
Indemnitee, whether for judgments, liabilities, fines, penalties,
amounts paid or to be paid in settlement and/or for Expenses, 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 at any time
against Indemnitee.
(b) 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.
(c) The
Company hereby agrees to fully indemnify, hold harmless and
exonerate Indemnitee from any claims for contribution which may be
brought by officers, directors or employees of the Company other
than Indemnitee who may be jointly liable with
Indemnitee.
8.
EXCLUSIONS.
Notwithstanding any provision in this Agreement except for Section
26, the Company shall not be obligated under this Agreement to make
any indemnification, advance expenses, hold harmless or exoneration
payment in connection with any claim made against
Indemnitee:
(a) for
which payment has actually been received by or on behalf of
Indemnitee under any insurance policy or other indemnity or
advancement provision, except with respect to any excess beyond the
amount actually received under any insurance policy, contract,
agreement, other indemnity or advancement provision or
otherwise;
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(b) for
an accounting of profits made from the purchase and sale (or sale
and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Exchange Act or similar provisions
of state statutory law or common law; or
(c) except
as otherwise provided in Sections 14(f)-(g) hereof, prior to a
Change in Control, 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 or
(ii) the Company provides the indemnification, hold harmless
or exoneration payment, in its sole discretion, pursuant to the
powers vested in the Company under applicable law. Indemnitee shall
seek payments or Advances from the Company only to the extent that
such payments or Advances are unavailable from any insurance policy
of the Company covering Indemnitee.
9. ADVANCES
OF EXPENSES; DEFENSE OF CLAIM.
(a) Notwithstanding
any provision of this Agreement to the contrary except for Section
26, and to the fullest extent not prohibited by applicable law, the
Company shall pay the Expenses incurred by Indemnitee (or
reasonably expected by Indemnitee to be incurred by Indemnitee
within three months) in connection with any Proceeding within ten
(10) days after the receipt by the Company of a statement or
statements requesting such advances from time to time, prior to the
final disposition of any Proceeding. Advances shall, to the fullest
extent permitted by law, be unsecured and interest free. Advances
shall, to the fullest extent permitted by law, be made without
regard to Indemnitee’s ability to repay the Expenses and
without regard to Indemnitee’s ultimate entitlement to be
indemnified, held harmless or exonerated under the other provisions
of this Agreement. Advances shall include any and all reasonable
Expenses incurred pursuing a Proceeding to enforce this right of
advancement, including Expenses incurred preparing and forwarding
statements to the Company to support the advances claimed. To the
fullest extent required by applicable law, such payments of
Expenses in advance of the final disposition of the Proceeding
shall be made only upon the Company’s receipt of an
undertaking, by or on behalf of the Indemnitee, to repay the
advanced amounts to the extent that it is ultimately determined
that Indemnitee is not entitled to be indemnified by the Company
under the provisions of this Agreement, the Charter, the Bylaws of
the Company, applicable law or otherwise. This Section 9(a) shall
not apply to any claim made by Indemnitee for which an
indemnification, hold harmless or exoneration payment is excluded
pursuant to Section 8.
(b) The
Company will be entitled to participate in the Proceeding at its
own expense.
(c) The
Company shall not settle any action, claim or Proceeding (in whole
or in part) which would impose any Expense, judgment, fine, penalty
or limitation on the Indemnitee without the Indemnitee’s
prior written consent.
10. PROCEDURE
FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION.
(a) Indemnitee
agrees to notify promptly the Company in writing upon being served
with any summons, citation, subpoena, complaint, indictment,
information or other document relating to any Proceeding, claim,
issue or matter therein which may be subject to indemnification,
hold harmless or exoneration rights, or advancement of Expenses
covered hereunder. The failure of Indemnitee 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.
(b) Indemnitee
may deliver to the Company a written application to indemnify, hold
harmless or exonerate Indemnitee in accordance with this Agreement.
Such application(s) may be delivered from time to time and at such
time(s) as Indemnitee deems appropriate in Indemnitee’s sole
discretion. Following such a written application for
indemnification by Indemnitee, the Indemnitee’s entitlement
to indemnification shall be determined according to Section 11(a)
of this Agreement.
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11. PROCEDURE
UPON APPLICATION FOR INDEMNIFICATION.
(a) A
determination, if required by applicable law, with respect to
Indemnitee’s entitlement to indemnification shall be made in
the specific case by one of the following methods, which shall be
at the election of Indemnitee: (i) by a majority vote of the
Disinterested Directors, even though less than a quorum of the
Board or (ii) by Independent Counsel in a written opinion to
the Board, a copy of which shall be delivered to Indemnitee. The
Company promptly will advise Indemnitee in writing with respect to
any determination that Indemnitee is or is not entitled to
indemnification, including a description of any reason or basis for
which indemnification has been denied. If it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within ten (10) days after such determination.
Indemnitee shall reasonably 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 costs or Expenses
(including reasonable attorneys’ fees and disbursements)
incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby agrees to
indemnify and to hold Indemnitee harmless therefrom.
(b) In
the event the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 11(a) hereof,
the Independent Counsel shall be selected as provided in this
Section 11(b). The Independent Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such selection be
made by the Board), and Indemnitee shall give written notice to the
Company advising it of the identity of the Independent Counsel so
selected and certifying that the Independent Counsel so selected
meets the requirements of “Independent Counsel” as
defined in Section 2 of this Agreement. If the Independent
Counsel is selected by the Board, the Company shall give written
notice to Indemnitee advising Indemnitee of the identity of the
Independent Counsel so selected and certifying that the Independent
Counsel so selected meets the requirements of “Independent
Counsel” as defined in Section 2 of this Agreement. In
either event, Indemnitee or the Company, as the case may be, may,
within ten (10) days after such written notice of selection
shall have been received, deliver to the Company or to Indemnitee,
as the case may be, 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
Section 2 of this Agreement, 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 such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or
a court of competent jurisdiction 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 10(a) hereof, no Independent Counsel shall have
been selected and not objected to, either the Company or Indemnitee
may petition the Delaware Court for resolution of any objection
which shall have been made by the Company or Indemnitee to the
other’s selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the
Delaware Court, and the person with respect to whom all objections
are so resolved or the person so appointed shall act as Independent
Counsel under Section 11(a) hereof. Upon the due commencement of
any judicial proceeding or arbitration pursuant to Section 13(a) 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).
(c) The
Company agrees to pay the reasonable fees and expenses of
Independent Counsel and to fully indemnify and hold harmless such
Independent Counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
12. PRESUMPTIONS
AND EFFECT OF CERTAIN PROCEEDINGS.
(a) In
making a determination with respect to entitlement to
indemnification hereunder, the person, persons or entity making
such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with Section 10(b) of
this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any
person, persons or entity of any determination contrary to that
presumption. Neither the failure of the Company (including by the
Disinterested Directors or Independent Counsel) to have made a
determination prior to the commencement of any action pursuant to
this Agreement that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor
an actual determination by the Company (including by the
Disinterested Directors or Independent Counsel) that Indemnitee has
not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that Indemnitee has not met the
applicable standard of conduct.
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(b) If
the person, persons or entity empowered or selected under
Section 11 of this Agreement to determine whether Indemnitee
is entitled to indemnification shall not have made a determination
within thirty (30) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to
indemnification shall, to the fullest extent permitted by law, be
deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not materially misleading, in
connection with the request for indemnification, or (ii) a
final judicial determination that any or all such indemnification
is expressly prohibited under applicable law; provided, however,
that such 30-day period may be extended for a reasonable time, not
to exceed an additional fifteen (15) days, if the person,
persons or entity making the determination with respect to
entitlement to indemnification in good faith requires such
additional time for the obtaining or evaluating of documentation
and/or information relating thereto.
(c) 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 he reasonably believed to be in or not opposed to the
best interests of the Company or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that
Indemnitee’s conduct was unlawful.
(d) For
purposes of any determination of good faith, 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,
including financial statements, or on information supplied to
Indemnitee by the directors, manager, or officers of the Enterprise
in the course of their duties, or on the advice of legal counsel
for the Enterprise, its Board, any committee of the Board or any
director, trustee, general partner, manager or managing member, or
on information or records given or reports made to the Enterprise,
its Board, any committee of the Board or any director, trustee,
general partner, manager or managing member, by an independent
certified public accountant or by an appraiser or other expert
selected by the Enterprise, its Board, any committee of the Board
or any director, trustee, general partner, manager or managing
member. The provisions of this Section 12(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.
(e) The
knowledge and/or actions, or failure to act, of any other director,
officer, trustee, partner, manager, managing member, fiduciary,
agent or employee of the Enterprise shall not be imputed to
Indemnitee for purposes of determining the right to indemnification
under this Agreement.
13. REMEDIES
OF INDEMNITEE.
(a) In
the event that (i) a determination is made pursuant to
Section 11 of this Agreement that Indemnitee is not entitled
to indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 9 of this
Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 11(a) of
this Agreement within thirty (30) days after receipt by the
Company of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Section 5, 6 or the
last sentence of Section 11(a) of this Agreement within ten
(10) days after receipt by the Company of a written request
therefor, (v) a contribution payment is not made in a timely
manner pursuant to Section 7 of this Agreement,
(vi) payment of indemnification pursuant to Section 3 or 4 of
this Agreement is not made within ten (10) days after a
determination has been made that Indemnitee is entitled to
indemnification, or (vii) payment to Indemnitee pursuant to
any hold harmless or exoneration rights under this Agreement or
otherwise is not made in accordance with this Agreement, Indemnitee
shall be entitled to an adjudication by the Delaware Court to such
indemnification, hold harmless, exoneration, contribution or
advancement rights. Alternatively, Indemnitee, at
Indemnitee’s 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. Except
as set forth herein, the provisions of Delaware law (without regard
to its conflict of laws rules) shall apply to any such arbitration.
The Company shall not oppose Indemnitee’s right to seek any
such adjudication or award in arbitration.
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(b) In
the event that a determination shall have been made pursuant to
Section 11(a) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 13 shall be conducted in all respects
as a de novo trial, or arbitration, on the merits and Indemnitee
shall not be prejudiced by reason of that adverse
determination.
(c) In
any judicial proceeding or arbitration commenced pursuant to this
Section 13, Indemnitee shall be presumed to be entitled to be
indemnified, held harmless, exonerated to receive advancement of
Expenses under this Agreement and the Company shall have the burden
of proving Indemnitee is not entitled to be indemnified, held
harmless, exonerated and to receive advancement of Expenses, as the
case may be, and the Company may not refer to or introduce into
evidence any determination pursuant to Section 11(a) of this
Agreement adverse to Indemnitee for any purpose. If Indemnitee
commences a judicial proceeding or arbitration pursuant to this
Section 13, Indemnitee shall not be required to reimburse the
Company for any advances pursuant to Section 9 until a final
determination is made with respect to Indemnitee’s
entitlement to indemnification (as to which all rights of appeal
have been exhausted or lapsed).
(d) If a
determination shall have been made pursuant to Section 11(a) of
this Agreement that Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any judicial
proceeding or arbitration commenced pursuant to this
Section 13, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not materially misleading, in
connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable
law.
(e) The
Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this
Section 13 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 the provisions of this
Agreement.
(f) The
Company shall indemnify and hold harmless Indemnitee to the fullest
extent permitted by law against all Expenses and, if requested by
Indemnitee, shall (within ten (10) days after the
Company’s receipt of such written request) pay to Indemnitee,
to the fullest extent permitted by applicable law, such Expenses
which are incurred by Indemnitee in connection with any judicial
proceeding or arbitration brought by Indemnitee: (i) to
enforce Indemnitee’s rights under, or to recover damages for
breach of, this Agreement or any other indemnification, hold
harmless, exoneration, advancement or contribution agreement or
provision of the Charter, or the Company’s Bylaws now or
hereafter in effect; or (ii) for recovery or advances under
any insurance policy maintained by any person for the benefit of
Indemnitee, regardless of the outcome and whether Indemnitee
ultimately is determined to be entitled to such indemnification,
hold harmless or exoneration right, advancement, contribution or
insurance recovery, as the case may be (unless such judicial
proceeding or arbitration was not brought by Indemnitee in good
faith).
(g) Interest
shall be paid by the Company to Indemnitee at the legal rate under
Delaware law for amounts which the Company indemnifies, holds
harmless or exonerates, or advances, or is obliged to indemnify,
hold harmless or exonerate or advance for the period commencing
with the date on which Indemnitee requests indemnification, to be
held harmless, exonerated, contribution, reimbursement or
advancement of any Expenses and ending with the date on which such
payment is made to Indemnitee by the Company.
14. SECURITY
.. Notwithstanding anything herein to the contrary except for
Section 26, to the extent requested by the Indemnitee and approved
by the Board, the Company may at any time and from time to time
provide security to the 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 the Indemnitee, may not be revoked or released without the prior
written consent of the Indemnitee.
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15. NON-EXCLUSIVITY;
SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The
rights of Indemnitee 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, the
Company’s Bylaws, any 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 Proceeding (regardless of when such Proceeding is first
threatened, commenced or completed) or claim, issue or matter
therein arising out of, or related to, 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 applicable law, whether by statute or judicial decision, permits
greater indemnification, hold harmless or exoneration rights or
advancement of Expenses than would be afforded currently under the
Charter, the Company’s Bylaws or 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) The
DGCL, the Charter and the Company’s Bylaws permit the Company
to purchase and maintain insurance or furnish similar protection or
make other arrangements including, but not limited to, providing a
trust fund, letter of credit, or surety bond (“
Indemnification Arrangements ”) on behalf of Indemnitee
against any liability asserted against Indemnitee or incurred by or
on behalf of Indemnitee or in such capacity as a director, officer,
employee, special advisor or agent of the Company, or arising out
of Indemnitee’s status as such, whether or not the Company
would have the power to indemnify Indemnitee against such liability
under the provisions of this Agreement or under the DGCL, as it may
then be in effect. The purchase, establishment, and maintenance of
any such Indemnification Arrangement shall not in any way limit or
affect the rights and obligations of the Company or of the
Indemnitee under this Agreement except as expressly provided
herein, and the execution and delivery of this Agreement by the
Company and the Indemnitee shall not in any way limit or affect the
rights and obligations of the Company or the other party or parties
thereto under any such Indemnification Arrangement.
(c) To
the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers,
trustees, partners, managers, managing members, fiduciaries,
employees, special advisors or agents of the Company or of any
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, trustee,
partner, managers, managing member, fiduciary, employee, special
advisor or agent under such policy or policies. If, at the time the
Company receives notice from any source of a Proceeding as to which
Indemnitee is a party or a participant (as a witness, deponent or
otherwise), the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of such
Proceeding to the insurers in accordance with the procedures set
forth in the respective policies. The Company shall thereafter take
all necessary or desirable action to cause such insurers to pay, on
behalf of the Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of such
policies.
(d) In
the event of any payment under this Agreement, the Company, to the
fullest extent permitted by law, 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.
(e) The
Company’s obligation to indemnify, hold harmless, exonerate
or advance Expenses hereunder to Indemnitee who is or was serving
at the request of the Company as a director, officer, trustee,
partner, manager, managing member, fiduciary, employee, special
advisor or agent of any other Enterprise shall be reduced by any
amount Indemnitee has actually received as indemnification, hold
harmless or exoneration payments or advancement of expenses from
such Enterprise. Notwithstanding any other provision of this
Agreement to the contrary except for Section 26,
(i) Indemnitee shall have no obligation to reduce, offset,
allocate, pursue or apportion any indemnification, hold harmless,
exoneration, advancement, contribution or insurance coverage among
multiple parties possessing such duties to Indemnitee prior to the
Company’s satisfaction and performance of all its obligations
under this Agreement, and (ii) the Company shall perform fully
its obligations under this Agreement without regard to whether
Indemnitee holds, may pursue or has pursued any indemnification,
advancement, hold harmless, exoneration, contribution or insurance
coverage rights against any person or entity other than the
Company.
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16.
DURATION
OF AGREEMENT. All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee serves
as a director, officer, employee and/or special advisor of the
Company or as a director, officer, trustee, partner, manager,
managing member, fiduciary, employee, special advisor or agent of
any other corporation, partnership, joint venture, trust, employee
benefit plan or other Enterprise which Indemnitee serves at the
request of the Company and shall continue thereafter so long as
Indemnitee shall be subject to any possible Proceeding (including
any rights of appeal thereto and any Proceeding commenced by
Indemnitee pursuant to Section 13 of this Agreement) by reason
of Indemnitee’s Corporate Status, whether or not Indemnitee
is acting in any such capacity at the time any liability or expense
is incurred for which indemnification or advancement can be
provided under this Agreement.
17.
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, paragraph or sentence 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, paragraph or sentence 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.
18. ENFORCEMENT
AND BINDING EFFECT.
(a) The
Company expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on it hereby in order
to induce Indemnitee to serve as a director, officer, special
advisor and/or key employee of the Company, and the Company
acknowledges that Indemnitee is relying upon this Agreement in
serving as a director, officer, special advisor and/or key employee
of the Company.
(b) Without
limiting any of the rights of Indemnitee under the Charter or
Bylaws of the Company as they may be amended from time to time,
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) The
indemnification, hold harmless, exoneration and advancement of
expenses rights provided by or granted pursuant to this Agreement
shall be binding upon and be enforceable by the parties hereto and
their respective successors and assigns (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), shall continue as to an Indemnitee who has ceased to be a
director, officer, employee, special advisor or agent of the
Company or a director, officer, trustee, general partner, manager,
managing member, fiduciary, employee, special advisor or agent of
any other Enterprise at the Company’s request, and shall
inure to the benefit of Indemnitee and Indemnitee’s spouse,
assigns, heirs, devisees, executors and administrators and other
legal representatives.
(d) The
Company shall require and cause any successor (whether direct or
indirect by purchase, merger, consolidation or otherwise) to all,
substantially all or a substantial part, of the business and/or
assets of the Company, by written agreement in form and substance
reasonably satisfactory to the 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.
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(e) The
Company and Indemnitee agree herein that a monetary remedy for
breach of this Agreement, at some later date, may be inadequate,
impracticable and difficult of proof, and further agree that such
breach may cause Indemnitee irreparable harm. Accordingly, the
parties hereto agree that Indemnitee may, to the fullest extent
permitted by law, enforce this Agreement by seeking, among other
things, injunctive relief and/or specific performance hereof,
without any necessity of showing actual damage or irreparable harm
and that by seeking injunctive relief and/or specific performance,
Indemnitee shall not be precluded from seeking or obtaining any
other relief to which he may be entitled. The Company and
Indemnitee further agree that Indemnitee shall, to the fullest
extent permitted by law, be entitled to such specific performance
and injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, without the
necessity of posting bonds or other undertaking in connection
therewith. The Company acknowledges that in the absence of a
waiver, a bond or undertaking may be required of Indemnitee by the
Court, Company hereby waives any such requirement of such a bond or
undertaking to the fullest extent permitted by law.
19.
MODIFICATION
AND WAIVER. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the
Company and the Indemnitee. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any
other provisions of this Agreement nor shall any waiver constitute
a continuing waiver.
20.
NOTICES.
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly
given (i) if delivered by hand and receipted for by the party
to whom said notice or other communication shall have been
directed, or (ii) mailed by certified or registered mail with
postage prepaid, on the third (3rd) business day after the date on
which it is so mailed:
(a) If
to Indemnitee, at the address indicated on the signature page of
this Agreement, or such other address as Indemnitee shall provide
in writing to the Company.
(b) If
to the Company, to:
c/o Big Rock Partners Sponsor, LLC
0000 X. Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
or to any other address as may have been furnished to Indemnitee in
writing by the Company.
21. APPLICABLE
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 laws rules. Except with respect
to any arbitration commenced by Indemnitee pursuant to Section
13(a) of this Agreement, to the fullest extent permitted by law,
the Company and Indemnitee hereby irrevocably and unconditionally:
(a) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in 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; (b)
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; (c) waive any objection to the
laying of venue of any such action or proceeding in the Delaware
Court; and (d) 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, or is
subject (in whole or in part) to a jury trial. To the fullest
extent permitted by law, the parties hereby agree that the mailing
of process and other papers in connection with any such action or
proceeding in the manner provided by Section 20 or in such other
manner as may be permitted by law, shall be valid and sufficient
service thereof.
22.
IDENTICAL
COUNTERPARTS. This Agreement may be executed in one or more
counterparts, 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 signed by the party
against whom enforceability is sought needs to be produced to
evidence the existence of this Agreement.
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23.
MISCELLANEOUS.
Use of the masculine pronoun shall be deemed to include usage of
the feminine pronoun where appropriate. 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.
24.
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 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.
25.
ADDITIONAL
ACTS. If for the validation of any of the provisions in this
Agreement any act, resolution, approval or other procedure is
required to the fullest extent permitted by law, the Company
undertakes to cause such act, resolution, approval or other
procedure to be affected or adopted in a manner that will enable
the Company to fulfill its obligations under this
Agreement.
26.
WAIVER.
Indemnitee hereby agrees that it does not have any right, title,
interest or claim of any kind (each, a “Claim”) in or
to any monies in the trust account established in connection with
the Company’s initial public offering for the benefit of the
Company and holders of shares issued in such offering, and hereby
waives any Claim it may have in the future as a result of, or
arising out of, any services provided to the Company and will not
seek recourse against such trust account for any reason
whatsoever.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this
Indemnification Agreement to be signed as of the day and year first
above written.
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By:
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Name:
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Title:
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INDEMNITEE
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By:
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Name:
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Address:
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[Signature page to Indemnification Agreement]
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