EXHIBIT 10.12
FORM OF
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into effective as of ____________,
1998 between Xxxx Group, Inc., a Delaware corporation (the "Company"), and
____________ (the "Indemnitee").
RECITALS
A. The Company is concerned with the retention of qualified, competent
persons to serve as directors and officers of the Company.
B. Highly competent persons are becoming increasingly reluctant to serve
publicly-held corporations as directors and officers or in other capacities
unless they are provided with adequate protection through insurance and/or
adequate indemnification against risks of claims and actions against them
arising out of their service to and activities on behalf of the Company.
C. As an inducement for the Indemnitee to serve or continue to serve
as a director or officer of the Company, the Indemnitee requires substantial
protection against personal liability for the Indemnitee's actions in serving
as a director or officer of the Company.
D. The Company's Certificate of Incorporation and Bylaws currently
provide for mandatory indemnification of officers and directors of the
Company to the fullest extent permitted under Delaware law.
E. In order to provide the Indemnitee with specific contractual
assurance that the protection provided by the Company's Certificate of
Incorporation and Bylaws will be available to the Indemnitee (regardless of,
among other things, any amendment to or revocation of such Certificate of
Incorporation and Bylaws or any change in the composition of the Company's
Board of Directors or acquisition transaction relating to the Company), the
Company wishes to provide for the indemnification of, and the advancing of
expenses to, the Indemnitee to the fullest extent (whether partial or
complete) permitted by law and as set forth in this Agreement.
F. In addition, to the extent insurance is maintained, the Company
wishes to provide for the continued coverage of the Indemnitee under the
Company's directors' and officers' liability insurance policies.
AGREEMENT
NOW THEREFORE, in consideration of the premises and covenants contained
herein, the Company and the Indemnitee do hereby agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, capitalized terms
have the following meaning:
(a) "BOARD" means the Board of Directors of the Company.
(b) "CHANGE IN CONTROL" means the following:
(1) the sale, lease, exchange or other transfer,
directly or indirectly, of substantially all of the assets of the
Company (in one transaction or in a series of related transactions)
to a person or entity that is not controlled by the Company;
(2) the approval by the shareholders of the Company of
any plan or proposal for the liquidation or dissolution of the
Company;
(3) a merger or consolidation to which the Company is a
party if the shareholders of the Company immediately prior to
effective date of such merger or consolidation have "beneficial
ownership" (as defined in Rule 13d-3 under the Exchange Act),
immediately following the effective date of such merger or
consolidation, of securities of the surviving corporation
representing (A) more than 50%, but less than 80%, of the combined
voting power of the surviving corporation's then outstanding
securities ordinarily having the right to vote at elections of
directors, unless such merger or consolidation has been approved in
advance by the Continuity Directors, or (B) 50% or less of the
combined voting power of the surviving corporation's then
outstanding securities ordinarily having the right to vote at
elections of directors (regardless of any approval by the
Continuity Directors);
(4) any person becomes, after the Effective Date, the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of (A) 20% or more, but not 50% or
more, of the combined voting power of the Company's outstanding
securities ordinarily having the right to vote at elections of
directors, unless the transaction resulting in such ownership has
been approved in advance by the Continuity Directors, or (B) 50% or
more of the combined voting power of the Company's outstanding
securities ordinarily having the right to vote at elections of
directors (regardless of any approval by the Continuity Directors);
or
(5) the Continuity Directors cease for any reason to
constitute at least a majority of the Board.
(c) "CORPORATE STATUS" describes the status of a person who is or
was a director, officer, employee, agent or fiduciary of the Company or
is or was serving at the request of the Company as a director, officer,
employee or agent of any Other Enterprise.
(d) "DISINTERESTED DIRECTOR" means a director of the Company who
is not and was not a party to the Proceeding in respect of which
indemnification is sought by the Indemnitee.
(e) "EFFECTIVE DATE" means the date first set forth above.
(f) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(g) "EXPENSES" include all reasonable attorneys' fees, retainers,
court costs, transcript costs, expert fees, witness fees, travel
expenses, duplicating and printing costs and all other disbursements or
expenses of the type customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating,
or being or preparing to be a witness in any Proceeding.
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(h) "GOOD FAITH" means the Indemnitee having acted in good faith
and in a manner that the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal Proceeding, having had no reasonable cause to believe that the
Indemnitee's conduct was unlawful.
(i) "CONTINUITY DIRECTOR" means any individual who is a member of
the Board on the Effective Date and any individual who subsequently
becomes a member of the Board whose election, or nomination for election
by the Company's stockholders, was approved by a vote of at least a
majority of the Continuity Directors (either by specific vote or by
approval of the Company's proxy statement in which such individual is
named as a nominee for director without objection to such nomination).
(j) "INDEPENDENT COUNSEL" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to
represent: (i) the Company or the Indemnitee in any matter material to
either such party, or (ii) any other party to the Proceeding giving rise
to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" does 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 the Indemnitee in an action to determine the Indemnitee's
rights under this Agreement.
(k) "OTHER ENTERPRISE" means the Company and any other
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise of which the Indemnitee is or was serving at the
request of the Company as a director, officer, employee, agent or
fiduciary.
(l) "PROCEEDING" includes any action, suit, arbitration,
alternative dispute resolution mechanism, investigation, administrative
hearing or any other actual, threatened or completed proceeding whether
civil, criminal, administrative or investigative, other than one
initiated by the Indemnitee. For purposes of the foregoing sentence, a
"Proceeding" will not be deemed to have been initiated by the Indemnitee
where the Indemnitee seeks pursuant to Section 8 of this Agreement to
enforce the Indemnitee's rights under this Agreement.
2. TERM OF AGREEMENT. This Agreement will continue until and
terminate upon the later of (i) 10 years after the date that the Indemnitee
has ceased to serve as a director, officer, employee, agent or fiduciary of
the Company or any Other Enterprise, or (ii) the final termination (as to
which all rights of appeal have been exhausted or lapsed) of all pending
Proceedings in respect of which the Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder and of any proceeding
commenced by the Indemnitee pursuant to Section 8 of this Agreement.
3. AGREEMENT TO SERVE; NOTICE OF PROCEEDINGS. The Indemnitee
agrees to serve as a director or officer of the Company for so long as the
Indemnitee is duly appointed or elected and qualified or until such time as
the Indemnitee resigns from such position; provided, however, that nothing
contained in this Agreement is intended to create on the part of the
Indemnitee any right to continued employment or service with the Company or
any Other Enterprise. The Indemnitee agrees promptly to notify the Company
in writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or
matter that may be subject to indemnification or advancement of Expenses
under this Agreement; provided, however, that failure of the Indemnitee to
give such notice promptly will not relieve the Company from any liability
that it may have to the Indemnitee otherwise than
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under this Agreement and will relieve the Company from liability under this
Agreement only to the extent that the Company has been prejudiced.
4. INDEMNIFICATION.
(a) IN GENERAL. In connection with any Proceeding, the Company
agrees to indemnify, and advance Expenses, to the Indemnitee as provided
in this Agreement and to the fullest extent permitted by applicable law
in effect on the date hereof and to such greater extent as applicable
law may thereafter from time to time permit.
(b) PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE
COMPANY. If, by reason of the Indemnitee's Corporate Status, the
Indemnitee is, or is threatened to be made, a party to any Proceeding,
other than a Proceeding by or in the right of the Company, the Company
will indemnify the Indemnitee against Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by
the Indemnitee or on the Indemnitee's behalf in connection with such
Proceeding or any claim, issue or matter therein, if the Indemnitee
acted in Good Faith.
(c) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. If, by reason
of the Indemnitee's Corporate Status, the Indemnitee is, or is
threatened to be made, a party to any Proceeding brought by or in the
right of the Company to procure a judgment in its favor, the Company
will indemnify the Indemnitee against Expenses, judgments, penalties,
and amounts paid in settlement, actually and reasonably incurred by the
Indemnitee or on the Indemnitee's behalf in connection with such
Proceeding or any claim, issue or matter therein, if the Indemnitee
acted in Good Faith. Notwithstanding the foregoing, no such
indemnification will be made if applicable law prohibits such
indemnification; provided, however, that, if applicable law so permits,
indemnification will nevertheless be made by the Company in such event
if and only to the extent that the Court of Chancery of the State of
Delaware (or the court in which such Proceeding has been brought or is
pending) determines.
(d) INDEMNIFICATION OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL.
Notwithstanding any other provision of this Agreement, to the extent
that the Indemnitee is, by reason of the Indemnitee's Corporate Status,
a party to and is successful, on the merits or otherwise, in any
Proceeding, the Indemnitee will be indemnified to the maximum extent
permitted by applicable law against all Expenses, judgments, penalties,
fines, and amounts paid in settlement, actually and reasonably incurred
by the Indemnitee or on the Indemnitee's behalf in connection with such
Proceeding or any claim, issue or matter therein. If the 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 will indemnify the Indemnitee
to the maximum extent permitted by applicable law against all Expenses,
judgments, penalties, fines, and amounts paid in settlement, actually
and reasonably incurred by the Indemnitee or on the Indemnitee's behalf
in connection with each successfully resolved claim, issue or matter.
For purposes of this Section 4(d), and without limitation, the
termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, will be deemed to be a successful
result as to such claim, issue or matter.
(e) INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding
any other provision of this Agreement, to the extent that the Indemnitee
is, by reason of the Indemnitee's Corporate Status, a witness in any
Proceeding, the Indemnitee will be indemnified against all Expenses
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actually and reasonably incurred by the Indemnitee or on the Indemnitee's
behalf in connection with such Proceeding or any claim, issue or matter
therein.
5. ADVANCEMENT OF EXPENSES. Notwithstanding any provision to the
contrary in Section 6 of this Agreement, the Company will advance all
reasonable Expenses that, by reason of the Indemnitee's Corporate Status,
were incurred by or on behalf of the Indemnitee in connection with any
Proceeding, within 20 days after the receipt by the Company of a statement or
statements from the Indemnitee requesting such advance or advances, whether
prior to or after final disposition of such Proceeding. Such statement or
statements must reasonably evidence the Expenses incurred by the Indemnitee
and must include or be preceded or accompanied by an undertaking by or on
behalf of the Indemnitee to repay any Expenses if it is ultimately determined
(as to which all rights of appeal have been exhausted or lapsed) that the
Indemnitee is not entitled to be indemnified against such Expenses. Any
advance and undertakings to repay pursuant to this Section 5 will be
unsecured and interest free.
6. PROCEDURES FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) INITIAL REQUEST. To obtain indemnification under this
Agreement, the Indemnitee must submit to the Company a written request,
including therein or therewith such documentation and information as is
reasonably available to the Indemnitee and is reasonably necessary to
determine whether and to what extent the Indemnitee is entitled to
indemnification under this Agreement. The President and/or Secretary of
the Company will promptly advise the Board in writing that the
Indemnitee has requested indemnification.
(a) METHOD OF DETERMINATION. A determination (if required by
applicable law) with respect to the Indemnitee's entitlement to
indemnification will be made as follows:
(1) If a Change in Control has occurred, unless the
Indemnitee requests in writing that such determination be made in
accordance with clause (2) of this Section 6(b), the determination
will be made by Independent Counsel in a written opinion to the
Board, a copy of which will be delivered to the Indemnitee.
(2) If a Change of Control has not occurred, and subject
to Section 6(e) of this Agreement, the determination will be made
by the Board by a majority vote of a quorum consisting of
Disinterested Directors. In the event that a quorum of the Board
consisting of Disinterested Directors is not obtainable or, even if
obtainable, such quorum of Disinterested Directors so directs, the
determination will be made by Independent Counsel in a written
opinion to the Board, a copy of which will be delivered to the
Indemnitee.
(c) SELECTION, PAYMENT AND DISCHARGE OF INDEPENDENT COUNSEL. In
the event that the determination of entitlement to indemnification is to be
made by Independent Counsel pursuant to Section 6(b) of this Agreement, the
Independent Counsel will be selected, paid and discharged in the following
manner:
(1) If a Change of Control has not occurred, the
Independent Counsel will be selected by the Board, and the Company
will give written notice to the Indemnitee advising the Indemnitee
of the identity of the Independent Counsel so selected.
(2) If a Change of Control has occurred, the Independent
Counsel will be selected by the Indemnitee (unless the Indemnitee
requests that such selection be made by
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the Board, in which event clause (1) of this Section 6(c) applies),
and the Indemnitee must give written notice to the Company advising
it of the identity of the Independent Counsel so selected.
(3) Following the initial selection described in clauses
(1) and (2) of this Section 6(c), the Indemnitee or the Company, as
the case may be, may, within seven days after such written notice
of selection has been given, deliver to the other party a written
objection to such selection. 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 1(j) of this Agreement, and the objection must set forth
with particularity the factual basis of such assertion. Absent a
proper and timely objection, the person so selected will act as
Independent Counsel. If such written objection is made, the
Independent Counsel so selected may not serve as Independent
Counsel unless and until a court has determined that such objection
is without merit.
(4) Either the Company or the Indemnitee may petition the
Court of Chancery of the State of Delaware if the parties have been
unable to agree on the selection of Independent Counsel within 20 days
after submission by the Indemnitee of a written request for
indemnification pursuant to Section 6(a) of this Agreement. Such
petition will request a determination whether an objection to the
party's selection is without merit and/or seek the appointment as
Independent Counsel of a person selected by the Court or by such other
person as the Court may designate. A person so appointed will act as
Independent Counsel under Section 6(b) of this Agreement.
(5) The Company will pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to this Agreement, and
the Company will pay all reasonable fees and expenses incident to
the procedures of this Section 6(c), regardless of the manner in
which such Independent Counsel was selected or appointed.
(6) Upon the due commencement of any judicial proceeding
or arbitration pursuant to Section 8(a)(3) of this Agreement,
Independent Counsel will be discharged and relieved of any further
responsibility in such capacity (subject to the applicable
standards of professional conduct then prevailing).
(d) COOPERATION. The Indemnitee agrees to cooperate with the
person, persons or entity making the determination with respect to the
Indemnitee's entitlement to indemnification under this Agreement,
including providing to such person, persons or entity upon reasonable
advance request any documentation or information that is not privileged
or otherwise protected from disclosure and that is reasonably available
to the Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys' fees and disbursements) incurred
by the Indemnitee in so cooperating with the person, persons or entity
making such determination will be borne by the Company (irrespective of
the determination as to the Indemnitee's entitlement to
indemnification), and the Company hereby indemnifies and agrees to hold
the Indemnitee harmless therefrom.
(e) PAYMENT. If it is determined that the Indemnitee is
entitled to indemnification, payment to the Indemnitee must be made
within 10 days after such determination.
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7. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) BURDEN OF PROOF. In making a determination with respect
to entitlement to indemnification hereunder, the person or persons or
entity making such determination will presume that the Indemnitee is
entitled to indemnification under this Agreement if the Indemnitee has
submitted a request for indemnification in accordance with Section 6(a)
of this Agreement, and the Company will 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.
(b) EFFECT OF OTHER PROCEEDINGS. 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, will not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of the Indemnitee to
indemnification or create a presumption that the Indemnitee did not act
in Good Faith.
(c) RELIANCE AS SAFE HARBOR. For purposes of any
determination of Good Faith, the Indemnitee will be deemed to have acted
in Good Faith if the Indemnitee's action is based on the records or
books of account of the Company or any Other Enterprise, including
financial statements, or on information supplied to the Indemnitee by
the officers of the Company or any Other Enterprise in the course of
their duties, or on the advice of legal counsel for the Company or any
Other Enterprise or on information or records given or reports made to
the Company or any Other Enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable
care by the Company or any Other Enterprise. The provisions of this
Section 7(c) will not be deemed to be exclusive or to limit in any way
the other circumstances in which the Indemnitee may be deemed to have
met the applicable standard of conduct set forth in this Agreement.
(d) ACTIONS OF OTHERS. The knowledge and/or actions, or failure
to act, of any director, officer, agent or employee of the Company or any
Other Enterprise will not be imputed to the Indemnitee for purposes of
determining the right of indemnification under this Agreement.
8. RIGHTS OF THE INDEMNITEE.
(a) APPLICATION TO DISPUTES. This Section 8 applies in the
event of a Dispute. For purposes of this Section, a "Dispute" means any
of the following events: (i) a determination is made pursuant to
Section 6 of this Agreement that the Indemnitee is not entitled to
indemnification under this Agreement; (ii) advancement of Expenses is
not timely made pursuant to Section 5 of this Agreement; (iii) the
determination of entitlement to indemnification to be made pursuant to
Section 6(b) of this Agreement has not been made within 90 days after
receipt by the Company of the request for indemnification; or (iv)
payment of indemnification is not made within 10 days after a
determination has been made that the Indemnitee is entitled to
indemnification or such determination is deemed to have been made
pursuant to Section 6 of this Agreement.
(b) ADJUDICATION. In the event of a Dispute, the Indemnitee
is entitled to an adjudication in any court of competent jurisdiction of
the Indemnitee's entitlement to such indemnification or advancement of
Expenses. Alternatively, the Indemnitee, at the Indemnitee's option, may
seek an award in arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association. The
Indemnitee must commence such proceeding seeking an adjudication or an
award in arbitration within 180 days following the date on which the
Indemnitee first has the
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right to commence such proceeding pursuant to this Section 8(b). The
Company will not oppose the Indemnitee's right to seek any such
adjudication or award in arbitration.
(c) DE NOVO REVIEW. In the event that a determination has
been made pursuant to Section 6 of this Agreement that the Indemnitee is
not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 8 will be conducted in all respects
as a de novo trial, or arbitration, on the merits, and the Indemnitee
will not be prejudiced by reason of that adverse determination. In any
such proceeding or arbitration, the Company has the burden of proving
that the Indemnitee is not entitled to indemnification or advancement of
Expenses, as the case may be.
(d) COMPANY BOUND. If a determination has been made or is
deemed to have been made pursuant to Section 6 of this Agreement that
the Indemnitee is entitled to indemnification, the Company will be bound
by such determination in any judicial proceeding or arbitration absent
(i) a misstatement by the Indemnitee of a material fact, or an omission
of a material fact necessary to make the Indemnitee's statement not
materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law.
(d) PROCEDURES VALID. The Company is precluded from
asserting in any judicial proceeding or arbitration commenced pursuant
to this Section 8 that the procedures and presumptions of this Agreement
are not valid, binding and enforceable and must stipulate in any such
court or before any such arbitrator that the Company is bound by all the
provisions of this Agreement.
(f) EXPENSES OF ADJUDICATION. In the event that the
Indemnitee, pursuant to this Section 8, seeks a judicial adjudication or
an award in arbitration to enforce the Indemnitee's rights under, or to
recover damages for breach of, this Agreement, the Indemnitee will be
entitled to recover from the Company, and will be indemnified by the
Company against, any and all expenses (of the types described in the
definition of Expenses in Section 1(g) of this Agreement) actually and
reasonably incurred by the Indemnitee in such adjudication or
arbitration, but only if the Indemnitee prevails therein. If it is
determined in such adjudication or arbitration that the Indemnitee is
entitled to receive part but not all of the indemnification or
advancement of Expenses sought, the expenses incurred by the Indemnitee
in connection with such adjudication or arbitration will be
appropriately pro-rated.
9. NON-EXCLUSIVITY; INSURANCE; SUBROGATION; DUPLICATION OF PAYMENTS.
(a) NON-EXCLUSIVITY. The rights of the Indemnitee are not
exclusive of any rights to which the Indemnitee may be entitled under
the Company's Certificate of Incorporation or Bylaws, any agreement, any
vote of stockholders or Disinterested Directors, applicable law or
otherwise both as to action in the Indemnitee's Corporate Status and as
to action in any other capacity while holding such office. No
amendment, alteration, rescission or replacement of this Agreement or
any provision hereof will be effective as to the Indemnitee with respect
to any action taken or omitted by such the Indemnitee in the
Indemnitee's Corporate Status prior to such amendment, alteration,
rescission or replacement.
(b) LIABILITY INSURANCE. To the extent the Company maintains
an insurance policy or policies for directors' and officers' liability,
the Indemnitee will be covered by such policy or
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policies, in accordance with its or their terms, to the maximum extent of
the coverage available for any Company director or officer.
(c) SUBROGATION. In the event of payment under this
Agreement, the Company will be subrogated to the extent of such payment
to all of the rights of recovery of the Indemnitee against any person or
organization, and the Indemnitee will execute all papers and take all
actions necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to
enforce such rights.
(d) NO DUPLICATION OF PAYMENTS. The Company will not be
liable under this Agreement to make any payment of amounts otherwise
indemnifiable hereunder if and to the extent that the Indemnitee has
otherwise actually received payment under any insurance policy, the
Certificate of Incorporation or Bylaws or otherwise.
10. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVER. No supplement, modification or
amendment of this Agreement will be binding unless executed in writing
by both of the parties hereto. No waiver of any of the provisions of
this Agreement will be deemed or will constitute a waiver of any other
provisions hereof (whether or not similar) nor will such waiver
constitute a continuing waiver.
(b) SUCCESSORS AND ASSIGNS. This Agreement will be binding
upon and inure to the benefit of 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),
spouses, heirs and personal and legal representatives. The Company will
require and cause any such successor, by written agreement in form and
substance satisfactory to the Indemnitee, to assume and agree to perform
this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken
place. This Agreement will continue in effect regardless of whether
Indemnitee continues to serve as a director or officer of the Company or
of any Other Enterprise.
(c) SEVERABILITY. The provisions of this Agreement will be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a
court of competent jurisdiction to be invalid, void or otherwise
unenforceable, and the remaining provisions will remain enforceable to
the fullest extent permitted by law.
(d) NOTICE. All notices, requests, demands and other
communications under this Agreement must be in writing and will be
deemed to have been duly given (i) if delivered by hand and receipted
for by the party to whom such notice or other communication was
directed, on the date of delivery, or (ii) if mailed by certified or
registered mail or by express mail, postage prepaid and properly
addressed, on the third business day after the date on which it is so
mailed. Unless subsequently modified as provided herein, notice to the
Company will be directed to Xxxx Group, Inc., 0000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000 (Attn: Chief Executive Officer), and notice
to the Indemnitee will be directed to the address set forth with the
Indemnitee's signature below.
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(e) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which will for all purposes be deemed an
original but all of which together will 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.
(f) GOVERNING LAW. This Agreement will be governed by and
construed and enforced in accordance with the law of the State of
Delaware applicable to contracts made to be performed in such state
without giving effect to the principles of conflicts of laws.
The parties have executed this Agreement on the day and year first above
written.
XXXX GROUP, INC.
By:
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Xxxxxxx X. Dirk
Its: Chief Executive Officer
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INDEMNITEE
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(Signature)
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(Name)
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(Address)
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