EXHIBIT 10.30
ADVANCEMENT AGREEMENT
WHEREAS, Xxxxxxx XxXxxx and Xxxxxxx Xxxxx, each of whom is a member of the
Board of Directors and an officer of Boron, XxXxxx and Associates, Inc. (the
"Company") and Xxxxxxx Xxxx and Xxxxxxxxxxx Xxxxxxx, each of whom is a former
senior officer of the Company and a current consultant to the Company (Messrs.
XxXxxx, Boron and Xxxx and Xxxxxxx being collectively referred to as the
"Individual Defendants"), have been named as defendants in a lawsuit brought by
Xxxxxx Xxxxx, a former stockholder of the Company, against the Company and the
Individual Defendants asserting claims relating to a transaction by which Xxxxxx
Xxxxx agreed to sell his remaining interest in the Company to the Company, and a
subsequent transaction by which Xxxxxx Xxxxx accepted a fixed amount of cash in
exchange for certain contractual rights arising from the initial sale
transaction (but not including the matters described in the Fifth Count of the
Complaint relating thereto) (the "Legal Claims"); and
WHEREAS, the Company is a defendant against whom Xxxxxx Xxxxx is seeking
damages based upon the Legal Claims (the Individual Defendants and the Company
being collectively referred to as the "Defendants"); and
WHEREAS, the Company's Bylaws require that each Officer of the Corporation
"shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the DGCL... against any and all Expenses incurred by such Officer
in connection with any Proceeding in which such Officer is involved as a result
of serving or having served (a) as an Officer or employee of the Corporation..."
(provided that indemnification shall not be provided "with respect to a matter
as to which such person shall be finally adjudicated in any Proceeding (a) not
to have acted in good faith or in a manner he or she reasonably believed to be
in, or not opposed to, the best interest of the Corporation" or in the case of a
claim which is settled, if there is a determination that with respect to such
matter, such person did not act in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interest of the
Corporation); and
WHEREAS, the Company's Bylaws also provide in pertinent part that, "Unless
otherwise determined by (a) the Board of Directors... or (c) if directed by the
Board of Directors, by independent legal counsel in a written opinion, any
indemnification extended to an Officer... shall include payment by the
Corporation or a subsidiary of the Corporation of Expenses as the same are
incurred in defending a Proceeding in advance of the final disposition of such
Proceeding upon an undertaking by such Officer... seeking indemnification to
repay such payment if such Officer... shall be adjudicated or determined not to
be entitled to indemnification under this Article V," (emphasis added) and
WHEREAS, the Board of Directors and its Special Counsel, Morris, Nichols,
Arsht and Xxxxxxx, have discussed the Legal Claims (including the factual
background of the Legal Claims and the defenses thereto) with the Individual
Defendants and attorneys at Xxxxxxx, Procter & Xxxx LLP ("GP&H"), outside
counsel to the Company and litigation counsel to the Defendants; and
WHEREAS, the Defendants have been advised by GP&H that it is not possible
to estimate with reasonable accuracy the fees and expenses that may be incurred
in connection with the Legal Claims, but that such counsel does not presently
estimate that such fees and expenses will exceed $1,000,000,
IT IS HEREBY AGREED among the undersigned parties as follows:
1. Each of the Potential Defendants shall be represented by the law firm
of Xxxxxxx, Procter & Xxxx LLP, or such other counsel as the Company may from
time to time select ("Litigation Counsel"), in defense of the Legal Claims and
any matters arising therefrom or relating thereto. Any Individual Defendant may
consult with his own legal counsel at any time, but the Company shall be
financially responsible for the cost of such consultation (by way of advancement
or indemnification) only if the Individual Defendant has previously consulted
with Litigation Counsel, and the Individual Defendant and Litigation Counsel
mutually determine that consultation with separate counsel is necessary and
appropriate in the circumstances.
2. Each Individual Defendant shall reasonably cooperate in the defense of
the Legal Claims and any litigation arising therefrom or relating thereto, and
in particular, shall (i) provide to Litigation Counsel all information and
documents as Litigation Counsel shall determine to be necessary or appropriate
for the defense of the Legal Claims and any litigation arising therefrom or
relating thereto, (ii) be available to testify at such times as Litigation
Counsel may reasonably request; and (iii) in the absence of a determination
pursuant to Paragraph 1 hereof that consultation with separate counsel is
necessary and appropriate, follow the recommendations of Litigation Counsel and
the Company concerning the defense of the Legal Claims, including without
limitation any proposed or actual settlement thereof.
3. The Company shall pay on a timely basis all reasonable legal fees
billed by Litigation Counsel, as well as the reasonable and necessary fees and
expenses of any additional counsel, consultation with whom is authorized
pursuant to paragraph 1 hereof.
4. The undersigned parties shall request that Litigation Counsel keep a
record of time spent in defense of each of the Defendants, with the
understanding time and expense relating to matters which impact equally one or
more of the Defendants shall be apportioned equally each to each of the
Defendants so impacted.
5. In the event that it is ultimately determined pursuant to Article V of
the Company's Bylaws that an Individual Defendant is not entitled to
indemnification, Litigation Counsel shall, within ten days thereafter, transmit
to that Individual Defendant a statement showing his share of fees and expenses
previously paid by the Company that incurred on his behalf as determined by
Litigation Counsel, which determination shall not be challenged by any of the
undersigned parties. The Individual Defendant shall pay the amount of such
statement to the Company within 45 days after receiving it.
6. This agreement shall be binding upon each of the undersigned parties
and their heirs and successors. This agreement shall be governed by the
substantative law of the State of Delaware (without reference to Delaware choice
of law provisions). This agreement reflects the entire agreement of the parties
concerning the subject matter hereof, except that nothing herein is intended to
alter or affect the parties' rights pursuant to the Bylaws of the Company or the
Delaware General Corporation Law, as the latter may be amended from time to
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time. This agreement may be signed in counterparts, and shall be amended only by
a writing signed, directly or in counterparts, by all parties affected by that
amendment.
BORON, XXXXXX & ASSOCIATES, INC.
By:______________________________________
[Title]
XXXXXXX XXXXXX
_________________________________________
XXXXXXX XXXXX
_________________________________________
XXXXXXX XXXX
_________________________________________
XXXXXXXXXXX XXXXXXX
_________________________________________
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