INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into this _________ day of
_________________, 200_, between XXXXXXXX'X INTERNATIONAL, INC., a Delaware
corporation (the "Corporation") and ___________________ ("Indemnitee").
WITNESSETH:
WHEREAS, Indemnitee is a ________________________ of the Corporation
and as such is performing a valuable service for the Corporation; and
WHEREAS, although Indemnitee has certain rights to indemnification
under the Governing Documents of the Corporation and Delaware law, and such
Governing Documents and law specifically provide that they are not exclusive and
thereby contemplate that the Corporation may enter into indemnification
agreements with its officers and directors;
WHEREAS, the Corporation's Board of Directors have determined that the
policy of the Corporation is to indemnify the Corporation's directors and
officers against Claims and Liabilities incurred by reason of their Official
Capacity; and
WHEREAS, the Board of Directors of the Corporation has determined that
the foregoing indemnification policy is important to the recruitment and
retention of qualified, competent officers and directors to serve the
Corporation, and is therefore in the best interests of the Corporation; and
WHEREAS, the Corporation's Board of Directors has determined that it is
appropriate and in the best interests of the Corporation to offer an
indemnification agreement substantially the same as this Agreement to all
directors of the Corporation and to those officers of the Corporation as the
Board of Directors shall determine; and
WHEREAS, the Corporation and Indemnitee desire to enter into this
Agreement to provide to Indemnitee additional rights to indemnification in
consideration of Indemnitee's continued service to the Corporation;
NOW, THEREFORE, in consideration of Indemnitee's service or continued
service to the Corporation in Indemnitee's Official Capacity, and the promises
and agreements contained herein, the Corporation and Indemnitee agree as
follows:
1. Certain Definitions. For purposes of this Agreement, the following
definitions shall apply to the referenced words or terms:
(a) "Arbitration" in the context of a Proceeding shall mean any
alternative dispute resolution procedure or process.
(b) "D&O Insurance" means directors and officers liability
insurance.
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(c) "Expenses" shall include all direct and indirect costs
(including, without limitation, all attorneys' fees and retainers, and
related disbursements, expert witness and advisory fees and related
disbursements, and other out-of-pocket costs) actually and reasonably
incurred or to be incurred by Indemnitee in connection with (i) the
investigation, defense or appeal of a Proceeding, (ii) serving as an
actual or prospective witness in any matter arising out of, or in any
way related to, Indemnitee's Official Capacity, (iii) any voluntary or
required interviews or depositions with respect to any matter arising
out of, or in any way related to, Indemnitee's Official Capacity, and
(iv) any Permitted Action brought against the Corporation by Indemnitee
directly, or by means of impleader, cross-complaint, counterclaim or
other proceeding.
(d) "Governing Documents" shall mean the Certificate of
Incorporation and Bylaws of the Corporation, as amended from time to
time.
(e) "Indemnitee's Affiliates" shall mean Indemnitee's spouse,
members of Indemnitee's immediate family, and Indemnitee's
representative(s), guardian(s), conservator(s) estate, executor(s),
administrator(s), and trustee(s), as the case may be, as understood in,
or relevant to, the context of a particular provision of this
Agreement.
(f) "Liabilities" shall include judgments, settlements, fines,
damages, whether compensatory, punitive or exemplary, ERISA or IRS or
other excise taxes, penalties, and all other liabilities of any kind or
nature incurred by Indemnitee as a result of a Proceeding.
(g) "Official Capacity" means Indemnitee's service as an officer
and/or director of the Corporation and any Other Enterprise, and in
such capacity shall include service as a trustee, fiduciary, agent or
similar status with respect to the Corporation and any Other
Enterprise.
(h) "Other Enterprise" shall include without limitation any other
corporation, partnership, joint venture, trust, employee benefit plan,
or other entity or association of any kind or nature which is
controlled by, or affiliated with, the Corporation, or of which the
Corporation is a creditor, or sole or partial owner.
(i) "Permitted Action" includes (i) any Proceeding against the
Corporation brought by Indemnitee, alone or with others, in connection
with, or related to, the defense by Indemnitee of any Proceeding
brought against Indemnitee by a third party, the Corporation, or any
Other Enterprise (or brought on behalf of the Corporation, including by
means of a derivative action), whether by a separately initiated
Proceeding, or impleader, cross-claim, counterclaim, or otherwise; (ii)
a Proceeding brought by Indemnitee or Indemnitee's Affiliates to
establish or enforce a right of indemnity, or Indemnitee's Affiliates,
under this Agreement, an applicable D&O insurance policy, the
Corporation's Governing Documents, or any other agreement or law
pertaining to indemnification of Indemnitee, or to recover Expenses or
a Liability of Indemnitee resulting from a Proceeding against
Indemnitee; (iii) a Proceeding against the Corporation or any Other
Enterprise brought by Indemnitee which is approved in advance by a
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majority of the Corporation's independent directors, excluding
Indemnitee; and (iv) a Proceeding brought by Indemnitee which is
required under any law; and with respect to (i) through (iv) above, any
of the identified actions shall be considered a Permitted Action
regardless of whether Indemnitee is ultimately determined to be
entitled to the relief sought.
(j) "Proceeding" shall include any threatened, pending, actual or
completed inquiry, interview, investigation, action, suit, arbitration
or other proceeding, whether civil, administrative, criminal, or any
other type of proceeding whatsoever, including an appellate action of
any kind, brought by (i) the Corporation (or brought on behalf of the
Corporation, including a derivative action) against or involving
Indemnitee or Indemnitee's Affiliates by reason of, or in any way
related to, Indemnitee's Official Capacity; (ii) Indemnitee, against or
involving the Corporation or any Other Enterprise by reason of, or in
any way related to, Indemnitee's Official Capacity or rights Indemnitee
has against the Corporation or any Other Enterprise under this
Agreement, the Governing Documents, or any other agreement or law (but
only with respect to a Permitted Action); (iii) any third party against
or involving Indemnitee or Indemnitee's Affiliates by reason of, or in
any way related to, Indemnitee's Official Capacity, directly or by
impleader, cross-claim, counterclaim, or other means; or (iv)
Indemnitee against any third party, other than the Corporation, by
reason of, or in any way related to, Indemnitee's Official Capacity,
directly or by impleader, cross-claim, counterclaim or other means.
(k) "Serving at the Request of the Corporation" shall include any
service to an Other Enterprise by Indemnitee in Indemnitee's Official
Capacity.
For the purposes of this Agreement, Indemnitee's service in
Indemnitee's Official Capacity to any Other Enterprise shall be
presumed to be "Service at the Request of the Corporation," unless it
is conclusively determined to the contrary by a majority vote of the
directors of the Corporation, excluding Indemnitee. With respect to
such determination, it shall not be necessary for Indemnitee to show
any actual or prior request by the Corporation or its Board of
Directors for such Service to such Other Enterprise.
2. Indemnification.
(a) Subject only to the provisions of Sections 4, 5 and 7 of this
Agreement, the Corporation shall hold harmless and indemnify Indemnitee
from and against any and all Expenses and Liabilities with respect to
any Proceedings to which Indemnitee may be subject by reason of
Indemnitee's Official Capacity with the Corporation or any Other
Enterprise to the fullest extent permitted by Delaware law and this
Agreement as such law and this Agreement may be hereafter modified or
interpreted subsequent to the execution of this Agreement.
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(b) Notwithstanding any other provisions of this Agreement, if
Indemnitee is the subject of a Proceeding by reason of, or in any way
related to, Indemnitee's Official Capacity, and is successful in the
defense of (i) the entire Proceeding, or (ii) one or more claims
brought as part of the Proceeding, the Indemnitee shall be fully
indemnified by the Corporation as to all Expenses incurred with respect
to the Proceeding, or the particular claims, as the case may be, to the
extent Indemnitee has not otherwise been indemnified.
(c) If a Proceeding against Indemnitee includes a claim against
(i) one or more of Indemnitee's Affiliates, or (ii) a property interest
of one or more of Indemnitee's Affiliates, and such Proceeding against
Indemnitee is by reason of, or in any way related to, Indemnitee's
Official Capacity with the Corporation or any Other Enterprise, this
Agreement shall also include indemnification of the Indemnitee's
Affiliates with respect to their Expenses and Liability, assuming that
Indemnitee would have been entitled to indemnification under Section
4(a) if the Proceeding had been brought directly against Indemnitee.
The Expenses of such Indemnitee Affiliate shall be advanced pursuant to
Section 5 to the extent Indemnitee would have been entitled to
advancement of Expenses had the Proceeding been directly against
Indemnitee.
(d) The Corporation and Indemnitee acknowledge that state or
federal law or regulations, or applicable public policy, may prohibit
the Corporation from indemnifying Indemnitee with respect to a
Proceeding, or one or more claims in a Proceeding under this Agreement
or otherwise.
3. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for any
portion of Expenses or Liability incurred in connection with any Proceeding, but
not for all of the Expenses or Liability incurred in connection with any
Proceeding, the Corporation shall nevertheless indemnify Indemnitee for the
portion of such Expenses and Liability to which Indemnitee is entitled.
4. Limitations on Indemnification.
(a) The Corporation will not hold Indemnitee harmless or provide
indemnification pursuant to Section 2:
(i) if Indemnitee has been otherwise (than pursuant to this
Agreement) indemnified by the Corporation or other person or
entity, or pursuant to any D&O Insurance or other insurance
purchased and maintained by the Corporation or Other Enterprise;
(ii) if the Proceeding against Indemnitee is not by reason
of, or does not in any way relate to, Indemnitee's Official
Capacity;
(iii) in respect of remuneration paid to Indemnitee if it
shall be determined by a final adjudication of a court having
jurisdiction in the matter that such remuneration was in violation
of law;
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(iv) on account of any suit for an accounting of profits
made from the purchase or sale by Indemnitee of securities of the
Corporation pursuant to Section 16(b) of the Securities Exchange
Act of 1934 and amendments thereto or similar provisions of any
federal, state or local law;
(v) on account of Indemnitee's conduct if it is finally
adjudged by a court or administrative agency, having jurisdiction
in the matter, or is admitted by Indemnitee, that such conduct (I)
was in bad faith (II) was believed by the Indemnitee to be opposed
to the best interests of the corporation, (III) was knowingly
fraudulent, false or dishonest, (IV) constituted knowing
misconduct, or (V) in a criminal action or proceeding, constituted
conduct that the Indemnitee had reasonable cause to believe was
unlawful;
(vi) with respect to Proceedings brought by, or on behalf
of, Indemnitee or Indemnitee's Affiliates, against the
Corporation, any Other Enterprise or any other person or entity
having a right to be indemnified by the Corporation or any Other
Enterprise, unless such Proceeding is a Permitted Action; or
(vii) if it shall be determined by a final adjudication of a
court, or administrative agency, having jurisdiction in the
matter, that such indemnification is not lawful.
(b) A determination as to whether Indemnitee is not entitled to
indemnification by reason of the provisions of Section 4(a) shall be
made by (i) the board of directors by a majority vote of directors who
were not parties to the action, suit or proceeding, even though less
than a quorum, or (ii) by a committee of such directors designated by a
majority vote of such directors, even though less than a quorum, or
(iii) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion to the effect that
there is clear and convincing evidence that, based on the evidence then
known, Indemnitee is not entitled to indemnification; and any such
determination under (i), (ii) or (iii) shall be final and binding upon
the Corporation.
5. Advancement of Expenses.
(a) Until the assumption of the defense of a Proceeding by the
Corporation pursuant to Section 7 of this Agreement or after
Indemnitee's employment of separate counsel as permitted under Section
7, expenses of Indemnitee in defending or responding to a Proceeding
shall be paid by the Corporation, within 15 days of the receipt of
invoices therefor from Indemnitee, in advance of the final disposition
of such Proceeding.
(b) Expenses of Indemnitee in prosecuting a Permitted Action
shall be paid by the Corporation within 15 days of the receipt of
invoices therefor from Indemnitee, in advance of the final disposition
of such Permitted Action.
(c) Indemnitee's initial submission of an invoice for
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reimbursement of Expenses incurred in connection with, or related to,
any Proceeding shall be accompanied by a written undertaking by or on
behalf of Indemnitee to repay all or a portion of the amounts advanced,
if it shall be determined by a final adjudication of a court or
administrative agency having jurisdiction in the matter that Indemnitee
is not entitled to indemnification by the Corporation with respect to
all or a portion of the advanced Expenses.
(d) Notwithstanding the foregoing, no advance shall be made by
the Corporation if a determination is reasonably and promptly made by
(i) the board of directors by a majority vote of directors who were not
parties to the action, suit or proceeding, even though less than a
quorum or (ii) if there are no such directors, by independent legal
counsel in a written opinion to the effect that there is clear and
convincing evidence that, based on the information then known,
Indemnitee would not be entitled to indemnification by reason of a
limitation set forth in Section 4(a) of this Agreement. In no event
shall any advance be made in instances where the board or independent
legal counsel reasonably determines that such Indemnitee knowingly
breached his or her duty to the Corporation or its stockholders.
6. Maintenance of D&O Insurance.
(a) The Corporation represents that it presently has in force and
effect D&O Insurance coverage under the policies with the insurance
carriers, and in the amounts set forth on Attachment A (the "Insurance
Policies").
(b) Subject only to the provisions of Section 6(c) hereof, the
Corporation agrees that, so long as Indemnitee shall continue to serve
in an Official Capacity, and thereafter, for so long as Indemnitee
shall be subject to any possible Proceeding by reason of, or in any way
related to, Indemnitee's Official Capacity, the Corporation will
purchase and maintain in effect for the benefit of Indemnitee one or
more valid, binding and enforceable policies of D&O Insurance
providing, in all respects, coverage at least comparable to that
presently provided pursuant to the Insurance Policies. All decisions as
to whether and to what extent the Corporation maintains D&O Insurance
shall be made by the Board of Directors of the Corporation.
(c) The Corporation shall not be required to maintain D&O
Insurance coverage at least comparable to that provided by the
Insurance Policies if (i) said Insurance is not available, or (ii) in
the reasonable business judgment of a two-thirds majority of the
directors of the Corporation, the premium cost for such insurance is
substantially disproportionate to the benefits of such coverage. In
making any determination to eliminate or reduce coverage, the Board of
Directors shall seek the advice of independent legal counsel or other
advisors experienced in the review and analysis of D&O Insurance
coverage.
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(d) Promptly after (i) learning of facts and circumstances which
may give rise to a Proceeding, the Corporation shall notify its D&O
Insurance carriers, if such notice is required by the applicable
insurance policies, and any other insurance carrier providing
applicable insurance coverage to the Corporation, of such facts and
circumstances, or (ii) receiving notice of a Proceeding, whether from
Indemnitee, or otherwise, the Corporation shall give prompt notice to
its D&O Insurance carriers, and any other insurance carriers providing
applicable insurance coverage to the Corporation, in accordance with
the requirements of the respective insurance policies. The Corporation
shall, thereafter, take all appropriate action to cause such insurance
carriers to pay on behalf of Indemnitee, all Expenses incurred or to be
incurred, and liability incurred, by Indemnitee with respect to such
Proceeding, in accordance with the terms of the applicable insurance
policies.
7. Notification to Corporation by Indemnitee of a Proceeding or
Permitted Action; Defense of Proceeding by Corporation.
(a) Promptly after receipt by Indemnitee of notice of the
commencement of a Proceeding or Permitted Action, Indemnitee will, if a
claim for indemnification with respect thereto is to be made by
Indemnitee against the Corporation under this Agreement, or otherwise,
notify the Corporation of such Proceeding or Permitted Action; but the
omission so to notify the Corporation will not relieve the Corporation
from any liability which it may have to Indemnitee under this
Agreement.
(b) With respect to a Proceeding of which the Corporation has
notice pursuant to Section 6, Section 7(a), or otherwise:
(i) Except as otherwise provided below, the Corporation
may, alone or jointly with any other indemnifying party, assume
the defense thereof, with counsel reasonably satisfactory to
Indemnitee. From and after the Corporation's assumption of the
defense of the Proceeding, the Corporation will not be liable to
Indemnitee under this Agreement for any Expenses subsequently
incurred by Indemnitee in connection with the defense of such
Proceeding.
(ii) Indemnitee shall have the right to employ Indemnitee's
own counsel in the defense of the Proceeding, but the fees and
expenses of such counsel incurred after the Corporation has
assumed the defense of such Proceeding, shall be at the expense of
Indemnitee unless (I) the employment of counsel by Indemnitee has
been authorized by a majority of the directors of the Corporation,
excluding Indemnitee, (II) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the
Corporation and Indemnitee in the conduct of the defense of the
Proceeding, and such conclusion is supported by an opinion of
counsel, or (III) the Corporation shall not in fact have timely
employed counsel to assume the defense of the Proceeding, in each
of which cases the Expenses of Indemnitee shall be advanced by the
Corporation pursuant to Section 5 and indemnified pursuant to
Section 2.
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(c) The Corporation shall not be liable to indemnify Indemnitee
under this Agreement for any amounts paid in settlement of any
Proceeding or Permitted Action effected without the Corporation's prior
written consent, which consent shall be determined by majority vote of
the Corporation's directors, excluding Indemnitee. The Corporation
shall not settle any action or claim in any manner which would impose
any penalty, limitation, Expense or Liability on Indemnitee without
Indemnitee's prior written consent. Neither the Corporation nor
Indemnitee will unreasonably withhold their consent to any proposed
settlement.
8. No Obligation or Right of Indemnitee or Corporation to
Continuation of Indemnitee's Official Capacity.
(a) The Corporation expressly confirms and agrees that it has
entered into this Agreement, and assumed the obligations imposed on the
Corporation in this Agreement, in order to induce Indemnitee to serve
or continue to serve the Corporation in Indemnitee's Official Capacity,
and acknowledges that Indemnitee is relying upon this Agreement in
serving or continuing to serve in such Official Capacity. The rights to
indemnification and advancement of Expenses created by or provided
pursuant to this Agreement are bargained-for conditions of Indemnitee's
acceptance and/or maintenance of Indemnitee's Official Capacity with
the Corporation. Such rights shall continue after Indemnitee has ceased
to serve the Corporation or any Other Enterprise in Indemnitee's
Official Capacity, and shall inure to the benefit of Indemnitee and
Indemnitee's Affiliates.
(b) Indemnitee agrees that neither the terms of this Agreement,
nor the rights and benefits conferred on the Corporation, any Other
Enterprise or Indemnitee under this Agreement, prohibits, limits or in
any way restricts the Board of Directors of the Corporation from (i)
seeking Indemnitee's resignation from his Official Capacity with the
Corporation or any Other Enterprise, (ii) removing, or seeking the
removal of Indemnitee from his Official Capacity with the Corporation
or any Other Enterprise, or (iii) declining to re-nominate or re-engage
Indemnitee for his Official Capacity with the Corporation or any Other
Enterprise, nor shall this Agreement be construed or interpreted as
creating a contract of employment or other engagement with Indemnitee.
(c) The Corporation agrees that neither the terms of this
Agreement, nor the rights and benefits provided to Indemnitee under
this Agreement, prohibit, limit, or restrict in any way, Indemnitee's
rights to resign Indemnitee's Official Capacity with the Corporation or
any Other Enterprise at any time subsequent to the execution of this
Agreement.
9. Enforcement of this Agreement by Indemnitee or Indemnitee's
Affiliates. To the fullest extent permitted by the laws of the State of Delaware
or otherwise, Indemnitee and Indemnitee's Affiliates shall have the right to
institute a Proceeding to enforce and/or recover damages for breach of the
rights of indemnification and advancement of Expenses created by, or provided
pursuant to the terms of, this Agreement, the Governing Documents, Delaware or
other law, or any other agreement entered into between Indemnitee and the
Corporation subsequent to the execution of this Agreement, and such Proceeding
shall be a Permitted Action for purposes of this Agreement.
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10. Non-attribution of Actions of any Indemnitee to any Other
Indemnitee. For purposes of determining whether Indemnitee is entitled to
indemnification or advancement of expenses by the Corporation pursuant to this
Agreement or otherwise, the actions or inactions of any other indemnitee or
group of indemnitees shall not be attributed to Indemnitee.
11. Non-Exclusivity. The rights to indemnification and advancement of
Expenses provided to Indemnitee pursuant to this Agreement shall not be deemed
exclusive of any other rights of indemnification or advancement of Expenses to
which Indemnitee may be entitled under any statute, common law, other agreement,
the Governing Documents, a vote of stockholders or disinterested directors,
insurance policy or otherwise, both as to actions in Indemnitee's Official
Capacity, and as to actions in any other capacity while holding Indemnitee's
Official Capacity with the Corporation or any Other Enterprise, and shall not
limit in any way any right the Corporation may have to create additional or
independent or supplementary indemnity obligations for the benefit of
Indemnitee.
12. Severability. Each of the provisions of this Agreement is a
separate and distinct agreement independent of the others, and if any provision
of this Agreement or the application of any provision hereof to any person or
circumstances is held invalid illegal or unenforceable by a final judgment of a
court, administrative agency or arbitration panel, having jurisdiction of the
matter, for any reason whatsoever, the remaining provisions of this Agreement
and the application of such provision to other persons or circumstances shall
not be affected thereby. The parties hereto expressly agree that any provision
hereof that is determined to be invalid, illegal or unenforceable shall be
construed and modified by the court, administrative agency or arbitration panel
finding such provision invalid, illegal or unenforceable to the extent necessary
so as to render such provision valid and enforceable as against all persons or
entities to the maximum extent permitted by law.
13. Governing Law. This Agreement shall be governed, interpreted and
construed in accordance with the laws of the State of Delaware without regard to
any of its conflict of law rules.
14. Consent to Jurisdiction and Venue. The Corporation and Indemnitee
each consent to the jurisdiction and venue of the courts of the State of Kansas,
or the federal courts, located in Kansas City, Kansas, and to holding any
arbitration permitted under this Agreement in Kansas City, Kansas, for all
purposes in connection with any Proceeding which arises out of or relates to
this Agreement.
15. Notices.
(a) All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if (i) personally delivered to, and receipted for by, the
intended receiving party, or an authorized representative of the
intended receiving party, (ii) mailed by certified or registered mail,
postage prepaid, within the United States, on the third business day
after the date on which it is mailed, (iii) delivered by reputable
overnight courier on the date of delivery evidenced by such carrier, or
(iv) transmitted by facsimile machine on the date of receipt indicated
by recipient's facsimile machine.
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(b) Such notices shall be given as follows:
(i) If to Indemnitee to the following address or facsimile
number, or such other address or facsimile number as Indemnitee
may furnish in writing:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Facsimile No.:
---------------------------
Attention:
-------------------------------
(ii) If to the Corporation to:
Xxxxxxxx'x International, Inc.
0000 Xxxx 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Facsimile No. 000-000-0000
Attention: Chief Executive Officer and Corporate
General Counsel
16. Modification; Survival. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing and signed
by both parties hereto. The provisions of this Agreement shall survive the
termination of Indemnitee's Official Capacity with the Corporation, and inure to
the benefit of Indemnitee and Indemnitee's Affiliates.
17. Period of Limitations. No Proceeding shall be brought by or in the
right of either party hereto against the other after the expiration of three (3)
years from the date of accrual of the cause of action giving rise to the
Proceeding, and any such cause of action of such party shall be extinguished and
deemed released unless asserted by the timely bringing of a Proceeding within
such three (3) year period; provided, however, that if any shorter period of
limitations is otherwise applicable to such cause of action, such shorter period
shall govern.
18. Subrogation. In the event of payment of Expenses or Liabilities
pursuant to this Agreement, the Corporation shall be subrogated to the extent of
such payment to all of the rights of recovery of Indemnitee and Indemnitee's
Affiliates against any person or organization. Indemnitee and Indemnitee's
Affiliates shall execute all documents required and shall do all acts that may
be necessary to secure such rights and to enable the Corporation effectively to
bring a Proceeding to enforce such rights.
19. Binding Effect; Successors. This Agreement shall be binding upon
and inure to the benefit of, and be enforceable by, the Corporation, Indemnitee
and Indemnitee's Affiliates, and their respective successors in interest,
including with respect to the Corporation, succession by purchase, merger,
consolidation, or sale of substantially all of the business and/or assets of the
Corporation. The Corporation shall require and cause any successor entity to
all, substantially all, or a substantial part of, the business and/or assets of
the Corporation, by written agreement to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Corporation
would be required to perform this Agreement if no succession had taken place.
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20. Prior Agreements; Conflict With Governing Documents. This
Agreement shall supersede and replace any other agreement among the parties
executed prior to the date of this Agreement with respect to the subject matter
hereof. To the fullest extent permitted by law, in the event of a conflict
between the terms of this Agreement and the terms of the Governing Documents,
the terms of this Agreement shall prevail.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement and affixed their signatures hereto as of the date first above
written.
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-----------------------------, Indemnitee
XXXXXXXX'X INTERNATIONAL, INC.
a Delaware corporation
By:
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Xxxxx X. Xxxx, Chairman/CEO
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