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EXHIBIT 99.8
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT, dated as of July 19, 2000 (this
"Agreement"), is made by and between XxxxXxxxxx.XXX, Inc., a Georgia corporation
(the "Company"), and ___________ ("ENTITY"), individually and on behalf of
itself and each of its Affiliates (Entity together with such Affiliates, the
"Indemnified Parties").
RECITALS
A. The Company has requested that ENTITY enter into a substantial
business relationship, including a substantial equity investment in the Company.
B. The Company recognizes the increased risk of litigation and
other claims being asserted against substantial shareholders of companies in
today's environment, regardless of whether, in reality, such litigation and
claims are valid and that there is a substantial risk that a claimant against
the Company or certain of its Affiliates will seek to impose liability on an
Indemnified Party because of the small size of the Company and certain of its
Affiliates relative to the Indemnified Parties.
C. In recognition of the foregoing, the Company wishes to provide
in this Agreement for the indemnification of and the advancement of Expenses to
the Indemnified Parties as set forth in this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. In addition to terms defined elsewhere
herein, the following terms have the following meanings when used in this
Agreement with initial capital letters:
(a) "AFFILIATE" has the meaning given to that term in Rule 405
under the Securities Act of 1933, as amended, provided, however, that for
purposes of this Agreement the Company and its subsidiaries will not be deemed
to constitute Affiliates of any Indemnified Party or Indemnified Parties
themselves.
(b) "CLAIM" means any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation, whether instituted, made or
conducted by the Company or any other party, including without limitation a
governmental entity, and, including without limitation, any such action, suit or
proceeding, inquiry or investigation that any Indemnified Party determines might
lead to the institution of any such action, suit or proceeding, whether civil,
criminal, administrative, arbitrative, investigative or other.
(c) "EXPENSES" includes reasonable attorneys' and experts'
fees, charges and all other costs, expenses and obligations paid or incurred in
connection with investigating,
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defending, being a witness in or participating in (including on appeal), or
preparing to defend, be a witness in or participate in, any Claim.
(d) "INDEMNIFIABLE LOSSES" means any and all Expenses,
damages, losses, liabilities, judgments, fines, penalties and amounts paid in
settlement (including without limitation all interest, assessments and other
charges paid or payable in connection with or in respect of any of the
foregoing) (collectively, "Losses") relating to, resulting from or arising out
of, directly or indirectly, in whole or in part, any Claim in respect of any
action or inaction of the Company, any of its Affiliates or any of their
respective officers, directors, employees, predecessors, successors and
assignees (collectively, "Company Persons"), and will include, without limiting
the generality or effect of the foregoing, any Losses suffered or incurred by an
Indemnified Party relating to, resulting from or arising out of, directly or
indirectly, in whole or in part, any Claim alleging that an Indemnified Party is
liable in whole or in part in respect of any action or inaction of any Company
Person under any theory of secondary liability, including without limitation as
an alleged aider and abettor, co-conspirator, controlling person or principal,
or any theories of respondant superior, indemnity, contribution or other similar
theories. Notwithstanding anything to the contrary in the foregoing,
"Indemnifiable Losses" will not include any Losses to the extent that, pursuant
to an express provision in any written contract between the Company and ENTITY
or any of its Affiliates, such Indemnified Party (and not the Company) is liable
for such Losses and is not entitled to recover or be indemnified against such
Losses from the Company.
2. BASIC INDEMNIFICATION ARRANGEMENT. The Company will indemnify and
hold harmless each Indemnified Party against all Indemnifiable Losses relating
to, resulting from or arising out of any Claim. The failure by an Indemnified
Party to notify the Company of such Claim will not relieve the Company from any
liability hereunder unless, and only to the extent that, the Company did not
learn of the Claim and such failure results in forfeiture by the Company of
substantial defenses, rights or insurance coverage. The Indemnified Parties will
have the right to select one law firm (plus local counsel) of ENTITY's choosing
to represent all Indemnified Parties in any Claim and all Expenses incurred in
connection therewith will be paid by the Company within five business days of a
request therefor. Without limiting the generality or effect of any other
provision hereof, the parties expressly acknowledge that the foregoing indemnity
is intended to apply regardless of the nature of the alleged conduct of the
Indemnified Party, including without limitation actual or alleged ordinary or
gross negligence, recklessness or willful misconduct. Notwithstanding the
foregoing, upon a final, nonappealable determination by a court of competent
jurisdiction in an action against an Indemnified Party that the Losses (or a
portion thereof) relating to, resulting from or arising out of a Claim were
related solely to, resulted solely from or arose solely out of such Indemnified
Party's gross negligence, recklessness or willful misconduct, the amount of such
Indemnified Party's Indemnified Losses in respect of such Claim will be reduced
by the amount of such Losses (or a portion thereof).
3. PARTIAL INDEMNITY, ETC. If an Indemnified Party is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of any Indemnifiable Loss but not for all of the total amount thereof,
the Company will nevertheless indemnify such Indemnified Party for the portion
thereof to which such Indemnified Party is entitled. Moreover, notwithstanding
any other provision of this Agreement, to the extent that an Indemnified Party
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has been successful on the merits or otherwise in defense of any or all Claims
relating in whole or in part to an Indemnifiable Loss or in defense of any issue
or matter therein, including without limitation dismissal without prejudice,
such Indemnified Party will be indemnified against all Expenses incurred in
connection therewith. In connection with any determination as to whether an
Indemnified Party is entitled to be indemnified hereunder, there will be a
presumption that such Indemnified Party is so entitled.
4. NO OTHER PRESUMPTION. For purposes of this Agreement, except as set
forth in Section 3, the termination of any Claim by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of nolo
contendere or its equivalent, will not create a presumption that an Indemnified
Party did not meet any particular standard of conduct or have any particular
belief or that a court has determined that indemnification is not permitted by
applicable law.
5. NON-EXCLUSIVITY, ETC. The rights of the Indemnified Party hereunder
will be in addition to any other rights the Indemnified Parties may have under
the Company's constituent documents, or the laws of the Company's or such
Indemnified Party's jurisdiction of incorporation, any other contract, law or
otherwise (collectively, "Other Indemnity Provisions"); provided, however, that
(i) to the extent that an Indemnified Party otherwise would have any greater
right to indemnification under any Other Indemnity Provision, the Indemnified
Party will be deemed to have such greater right hereunder and (ii) to the extent
that any change is made to the Other Indemnity Provisions which permits any
greater right to indemnification than that provided under this Agreement as of
the date hereof, an Indemnified Party will be deemed to have such greater right
hereunder. The Company will not adopt any amendment to its constituent documents
or take any other action the effect of which would be to deny, diminish or
encumber an Indemnified Party's right to indemnification under this Agreement or
the Other Indemnity Provisions.
6. LIABILITY INSURANCE AND FUNDING. To the extent that an Indemnified
Party has available to it any insurance purchased by the Company, such
Indemnified Party or any other Indemnified Party, such insurance and the
Company's obligations hereunder will not be affected by, respectively, this
Agreement or such insurance, it being the intention of the parties that every
Indemnified Party have as great of protection as it can have against all
Indemnifiable Losses.
7. SUBROGATION. In the event of payment under this Agreement to an
Indemnified Party, the Company shall be subrogated to the extent of such payment
to all of the related rights of recovery of such Indemnified Party against other
persons or entities other than ENTITY or any Affiliate thereof. Such Indemnified
Party will execute all papers reasonably required to evidence such rights (all
of the Indemnified Parties' reasonable Expenses, including attorneys' fees and
charges, to be reimbursed by or, at the option of ENTITY, advanced by the
Company).
8. SETTLEMENT OF CLAIMS. The Company will not, without the prior
written consent of an Indemnified Party, effect any settlement of any threatened
or pending Claim which such Indemnified Party is a party unless such settlement
solely involves the payment of money and includes an unconditional release of
such Indemnified Party from all liability on any claims that are the subject
matter of such Claim.
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9. SUCCESSORS AND BINDING AGREEMENT. (a) The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of the business or
assets of the Company, by agreement in form and substance satisfactory to the
Indemnified Parties, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent the Company would be required to perform
if no such succession had taken place. This Agreement will be binding upon and
inure to the benefit of the Company and any successor to the Company, including
without limitation any person acquiring directly or indirectly all or
substantially all of the business or assets of the Company whether by purchase,
merger, consolidation, reorganization or otherwise (and such successor will
thereafter be deemed the "Company" for purposes of this Agreement), but will not
otherwise be assignable or delegatable by the Company.
(b) This Agreement will inure to the benefit of and be enforceable
by any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of the
business or assets of the Indemnified Parties and their personal or legal
successors.
(c) This Agreement is personal in nature and none of the parties
hereto will, without the consent of the other party or parties, assign or
delegate this Agreement or any rights or obligations hereunder except as
expressly provided in Sections 9(a) and 9(b).
(d) Each past, present or future Affiliate of ENTITY is an
intended third-party beneficiary of this Agreement (regardless of whether such
person or entity ceased or ceases to be an Affiliate of ENTITY but not including
entities that have not been Affiliates of ENTITY for a period of more than two
years prior to the date of this Agreement), and as such will be entitled to
indemnity hereunder as if it were a party hereto except that ENTITY will have
the sole right to make all decisions hereunder and otherwise administer this
Agreement on behalf of all such persons or entities.
10. NOTICES. For all purposes of this Agreement, all notices or
communications which are required or permitted hereunder shall be in writing and
sufficient if delivered by hand or by facsimile transmission, by registered or
certified mail, postage prepaid or by courier or overnight carrier, to the
persons at the addresses shown on the signature page hereof, or to such other
address as the Company or ENTITY may furnish to the other in writing and in
accordance herewith, except that notices of changes of address will be effective
only upon receipt.
11. GOVERNING LAW, ETC. The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of the State of Georgia, without giving effect to the
principles of conflict of laws of such State. Each party consents to
non-exclusive jurisdiction of any Delaware federal or state court or any court
in any other jurisdiction in which a Claim is commenced by a third person for
purposes of any action, suit or procedure hereunder, waives any obligation to
venue therein or any defense based on forum non conveniens or similar theories
and agrees that service of process may be effected in any such action, suit or
proceeding by notice given in accordance with Section 12.
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12. VALIDITY. If any provision of this Agreement or the application of
any provision hereof to any person or circumstance is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or circumstance will not be
affected, and the provision so held to be invalid, unenforceable or otherwise
illegal will be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid or legal.
13. MISCELLANEOUS. No provision of this Agreement may be waived,
modified or discharged by or with respect to an Indemnified Party unless such
waiver, modification or discharge is agreed to in writing signed by such
Indemnified Party and the Company. No waiver by either party hereto at any time
of any breach by the other party hereto or compliance with any condition or
provision of this Agreement to be performed by such other party will be deemed a
waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
expressed or implied with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. References to
Sections are to references to Sections of this Agreement.
14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed to be an original but all of which
together will constitute one and the same agreement.
15. LEGAL FEES AND EXPENSES. It is the intent of the Company that the
Indemnified Party not be required to incur legal fees or other Expenses
associated with the interpretation, enforcement or defense of the Indemnified
Parties' rights under this Agreement by litigation or otherwise because the cost
and expense thereof would substantially detract from the benefits intended to be
extended to the Indemnified Parties hereunder. Accordingly, without limiting the
generality or effect of any other provision hereof, if it should appear to
ENTITY that the Company has failed to comply with any of its obligations under
this Agreement or in the event that the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable, or
institutes any litigation or other action or proceeding designed to deny, or to
recover from, any Indemnified Party the benefits provided or intended to be
provided to the Indemnified Parties hereunder, the Company irrevocably
authorizes ENTITY from time to time to retain counsel of ENTITY's choice, at the
expense of the Company as hereafter provided, to advise and represent the
Indemnified Parties in connection with any such interpretation, enforcement or
defense, including without limitation the initiation or defense of any
litigation or other legal action, whether by or against the Company or any
director, officer, shareholder or other person affiliated with the Company, in
any jurisdiction. Notwithstanding any existing or prior attorney-client
relationship between the Company and such counsel, the Company irrevocably
consents to each Indemnified Party's entering into an attorney-client
relationship with such counsel, and in that connection the Company and each such
Indemnified Party agree that a confidential relationship shall exist between
each such Indemnified Party and such counsel. Without respect to whether an
Indemnified Party prevails, in whole or in part, in connection with any of the
foregoing, the Company will pay and be solely financially responsible for any
and all attorneys' and related fees and expenses incurred by such Indemnified
Party in connection with any of the foregoing; provided, however, that in no
event will the Company be financially responsible for such attorneys' fees and
expenses if (1) a final,
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nonappealable determination by a court of competent jurisdiction has determined
that the Losses relating to, resulting from or arising out of a Claim were
related solely to, resulted solely from or arose solely out of the Indemnified
Party's gross negligence, recklessness or willful misconduct, (2) the Company
has previously reimbursed or indemnified ENTITY or its Affiliates for such
Losses, and (3) the Company has initiated proceedings to recover such funds.
16. CERTAIN INTERPRETIVE MATTERS. No provision of this Agreement will
be interpreted in favor of, or against, any of the parties hereto by reason of
the extent to which any such party or its counsel participated in the drafting
thereof or by reason of the extent to which any such provision is inconsistent
with any prior draft hereof or thereof.
17. TERM. This Agreement will terminate and be of no further force and
effect on the tenth anniversary of the date when none of ENTITY or any of its
Affiliates owns any capital stock of or indebtedness (excluding trade debt) in
the Company, except that the termination of this Agreement will not affect any
Indemnified Parties' rights hereunder for Claims based on the action or inaction
of any director, officer or employee of the Company prior to such termination.
[Signature page following]
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IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the date first above written.
XXXXXXXXXX.XXX, INC.
By:
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Name:
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Title:
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ENTITY
(on behalf of itself and all other
Indemnified Parties)
By:
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Name:
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Title:
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