INDEMNIFICATION AGREEMENT
Exhibit
10.8
This Indemnification Agreement, dated as of , 2007 (this “Agreement”), is
made by and between Xxxxxxx & Xxxxxxxxx Inc., a Delaware corporation (the “Company”), and
(“Indemnitee”).
RECITALS:
A. The General Corporation Law of the State of Delaware provides that the business and affairs
of a corporation shall be managed by or under the direction of its board of directors.
B. In recognition of the need for corporations to be able to induce capable and responsible
persons to accept positions in corporate management, Delaware law authorizes (and in some instances
requires) corporations to indemnify their directors and officers, and further authorizes
corporations to purchase and maintain insurance for the benefit of their directors and officers.
C. The Delaware courts have recognized that indemnification by a corporation serves the dual
policies of (1) allowing corporate officials to resist unjustified lawsuits, secure in the
knowledge that, if vindicated, the corporation will bear the expense of litigation and (2)
encouraging capable persons to serve as corporate directors and officers, secure in the knowledge
that the corporation will absorb the costs of defending their honesty and integrity.
D. Under Delaware law, a director’s or officer’s right to be reimbursed for the costs of
defense of criminal actions, whether such claims are asserted under state or federal law, does not
depend upon the merits of the claims asserted against the director or officer and is separate and
distinct from any right to indemnification the director or officer may be able to establish, and
indemnification of the director or officer against criminal fines and penalties is permitted if the
director satisfies the applicable standard of conduct.
E. Indemnitee is a director and/or officer of the Company and his/her willingness to serve in
such capacity is predicated, in substantial part, upon the Company’s willingness to indemnify
him/her in accordance with the principles reflected above, to the fullest extent permitted by the
laws of the state of Delaware, and upon the other undertakings set forth in this Agreement.
F. Therefore, in recognition of the need to provide Indemnitee with substantial protection
against personal liability, in order to procure Indemnitee’s continued service as a director and/or
officer of the Company and to enhance Indemnitee’s ability to serve the Company in an effective
manner, and in order to provide such protection pursuant to express contract rights (intended to be
enforceable irrespective of, among other things, any amendment to the Company’s certificate of
incorporation or bylaws (collectively, the “Constituent Documents”), the Company wishes to
provide in this Agreement for the indemnification of and the advancement of Expenses (as defined in
Section 1(c)) to Indemnitee as set forth in this Agreement and for the coverage of Indemnitee under
the Company’s directors’ and officers’ liability insurance policies.
G. In light of the considerations referred to in the preceding recitals, it is the Company’s
intention and desire that the provisions of this Agreement be construed liberally, subject to their
express terms, to maximize the protections to be provided to Indemnitee hereunder.
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) “Claim” means (i) any threatened, asserted, pending or completed claim, demand,
action, suit or proceeding, whether civil, criminal, administrative, arbitrative, investigative or
other, and whether made pursuant to federal, state or other law; and (ii) any threatened, pending
or completed inquiry or investigation, whether made, instituted or conducted by the Company or any
other person, including without limitation any federal, state or other governmental entity, that
Indemnitee determines might lead to the institution of any such claim, demand, action, suit or
proceeding.
(b) “Disinterested Director” means a director of the Company who is not and was not a
party to the Claim in respect of which indemnification is sought by Indemnitee.
(c) “Expenses” means reasonable, documented attorneys’ and experts’ fees and expenses
and all other reasonable, documented costs and expenses paid or payable in connection with
investigating, defending, being a witness in or participating in (including on appeal), or
preparing to investigate, defend, be a witness in or participate in (including on appeal), any
Claim.
(d) “Indemnifiable Claim” means any Claim based upon, arising out of or resulting from
(i) any actual, alleged or suspected act or failure to act by Indemnitee in his capacity as a
director, manager, officer, employee or agent of the Company or as a director, officer, employee,
member, manager, trustee or agent of any other corporation, limited liability company, partnership,
joint venture, trust or other entity or enterprise, whether or not for profit, as to which
Indemnitee is or was serving at the request of the Company as a director, officer, employee,
member, manager, trustee or agent, (ii) any actual, alleged or suspected act or failure to act by
Indemnitee in respect of any business, transaction, communication, filing, disclosure or other
activity of the Company or any other entity or enterprise referred to in clause (i) of this
sentence, or (iii) Indemnitee’s status as a current or former director, manager, officer, employee
or agent of the Company or as a current or former director, officer, employee, member, manager,
trustee or agent of the Company or any other entity or enterprise referred to in clause (i) of this
sentence or any actual, alleged or suspected act or failure to act by Indemnitee in connection with
any obligation or restriction imposed upon Indemnitee by reason of such status. In addition to any
service at the actual request of the Company, for purposes of this Agreement, Indemnitee shall be
deemed to be serving or to have served at the request of the Company as a director, officer,
employee, member, manager, trustee or agent of another entity or enterprise if Indemnitee is or was
serving as a director, officer, employee, member, manager, trustee or agent of such entity or
enterprise and (i) such entity or enterprise is or at the time of such service was a Controlled
Affiliate, (ii) such entity or enterprise is or at the time of such service was an
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employee benefit plan (or related trust) sponsored or maintained by the Company or a
Controlled Affiliate, or (iii) the Company or a Controlled Affiliate directly or indirectly caused
or authorized Indemnitee to be nominated, elected, appointed, designated, employed, engaged or
selected to serve in such capacity. Notwithstanding the foregoing, Indemnifiable Claims will not
consist of any Claim to the extent indemnification in respect thereof is prohibited by the laws of
the State of Delaware in effect on the date hereof or as such laws may from time to time hereafter
be amended to increase the scope of such permitted indemnification.
(e) “Indemnifiable Losses” means any and all Losses relating to, arising out of or
resulting from any Indemnifiable Claim.
(f) “Independent Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporate law and neither presently is, nor in the past five years has
been, retained to represent: (i) the Company (or any subsidiary of the Company) or Indemnitee in
any matter material to either such party (other than with respect to matters concerning Indemnitee
under this Agreement, or of other indemnitees under similar indemnification agreements), or
(ii) any other named (or, as to a threatened matter, reasonably likely to be named) party to the
Indemnifiable Claim 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.
(g) “Losses” means any and all Expenses, damages, losses, liabilities, judgments,
fines, penalties (whether civil, criminal or other) 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.
2. Indemnification Obligation. Subject to Section 7, the Company shall indemnify, defend and
hold harmless Indemnitee against any and all Indemnifiable Claims and Indemnifiable Losses;
provided, however, that, except as provided in Sections 4 and 20, Indemnitee shall not be entitled
to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee
against the Company or any director or officer of the Company unless the Company has joined in or
consented to the initiation of such Claim.
3. Advancement of Expenses. Indemnitee shall have the right to advancement by the Company
prior to the final disposition of any Indemnifiable Claim of any and all Expenses relating to,
arising out of or resulting from any Indemnifiable Claim paid or incurred by Indemnitee.
Indemnitee’s right to such advancement is not subject to the satisfaction of any standard of
conduct. Without limiting the generality or effect of the foregoing, within 10 days after any
request by Indemnitee, the Company shall, in accordance with such request (but without
duplication), (a) pay such Expenses on behalf of Indemnitee, (b) advance to Indemnitee funds in an
amount sufficient to pay such Expenses, or (c) reimburse Indemnitee for such Expenses; provided
that Indemnitee shall repay, without interest, any amounts actually advanced to Indemnitee that, at
the final disposition of the Indemnifiable Claim to which the advance related, were in excess of
amounts paid or payable by Indemnitee in respect of Expenses relating to, arising out of or
resulting from such Indemnifiable Claim. In connection with any such
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payment, advancement or reimbursement, Indemnitee shall execute and deliver to the Company an
undertaking, which need not be secured and shall be accepted without reference to Indemnitee’s
ability to repay the Expenses, by or on behalf of Indemnitee, to repay, without interest, any
amounts paid, advanced or reimbursed by the Company in respect of Expenses relating to, arising out
of or resulting from any Indemnifiable Claim in respect of which it shall have been determined,
following the final disposition of such Indemnifiable Claim and in accordance with Section 7, that
Indemnitee is not entitled to indemnification hereunder.
4. Indemnification for Additional Expenses. Without limiting the generality or effect of the
foregoing, the Company shall indemnify and hold harmless Indemnitee against and, if requested by
Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within 10 days of such
request, any and all Expenses paid or incurred by Indemnitee in connection with any Claim made,
instituted or conducted by Indemnitee for (a) indemnification or reimbursement or advance payment
of Expenses by the Company under any provision of this Agreement, or under any other agreement or
provision of the Constituent Documents now or hereafter in effect relating to Indemnifiable Claims,
and/or recovery under any directors’ and officers’ liability insurance policies maintained by the
Company, regardless in each case of whether Indemnitee ultimately is determined to be entitled to
such indemnification, reimbursement, advance or insurance recovery, as the case may be; provided,
however, that Indemnitee shall return, without interest, any such advance of Expenses (or portion
thereof) which remains unspent at the final disposition of the Claim to which the advance related.
5. Partial Indemnity. If Indemnitee 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 shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.
6. Procedure for Notification. To obtain indemnification under this Agreement in respect of
an Indemnifiable Claim or Indemnifiable Loss, Indemnitee shall submit to the Company a written
request therefor, including a brief description (based upon information then available to
Indemnitee) of such Indemnifiable Claim or Indemnifiable Loss. If, at the time of the receipt of
such request, the Company has directors’ and officers’ liability insurance in effect under which
coverage for such Indemnifiable Claim or Indemnifiable Loss is potentially available, the Company
shall give prompt written notice of such Indemnifiable Claim or Indemnifiable Loss to the
applicable insurers in accordance with the procedures set forth in the applicable policies. The
Company shall provide to Indemnitee a copy of such notice delivered to the applicable insurers, and
copies of all subsequent correspondence between the Company and such insurers regarding the
Indemnifiable Claim or Indemnifiable Loss, in each case substantially concurrently with the
delivery or receipt thereof by the Company. The failure by Indemnitee to timely notify the Company
of any Indemnifiable Claim or Indemnifiable Loss shall not relieve the Company from any liability
hereunder unless, and only to the extent that, the Company did not otherwise learn of such
Indemnifiable Claim or Indemnifiable Loss and such failure shall materially prejudice the ability
of the Company to defend such Indemnifiable Claim or otherwise to perfect rights to any insurance
coverage relating thereto..
7. Determination of Right to Indemnification. (a) To the extent that Indemnitee shall have
been successful on the merits or otherwise in defense of any Indemnifiable Claim or any
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portion thereof or in defense of any issue or matter therein, including without limitation
dismissal without prejudice, Indemnitee shall be indemnified against all Indemnifiable Losses
relating to, arising out of or resulting from such Indemnifiable Claim in accordance with Section 2
and no Standard of Conduct Determination (as defined in Section 7(b)) shall be required.
(b) To the extent that the provisions of Section 7(a) are inapplicable to an Indemnifiable
Claim that shall have been finally disposed of, any determination of whether Indemnitee has
satisfied any applicable standard of conduct under Delaware law that is a legally required
condition precedent to indemnification of Indemnitee hereunder against Indemnifiable Losses
relating to, arising out of or resulting from such Indemnifiable Claim (a “Standard of Conduct
Determination”) shall be made as follows: (i) by a majority vote of the Disinterested
Directors, even if less than a quorum of the Company’s Board of Directors (the “Board”),
(ii) if such Disinterested Directors so direct, by a majority vote of a committee of Disinterested
Directors designated by a majority vote of all Disinterested Directors, or (iii) if there are no
such Disinterested Directors, by Independent Counsel in a written opinion addressed to the Board, a
copy of which shall be delivered to Indemnitee. Indemnitee will cooperate with the person or
persons making such Standard of Conduct Determination, including providing to such person or
persons, 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. The Company shall indemnify and hold harmless
Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to
Indemnitee, within 10 days of such request, any and all reasonable, documented costs and expenses
(including attorneys’ and experts’ fees and expenses) incurred by Indemnitee in so cooperating with
the person or persons making such Standard of Conduct Determination.
(c) The Company shall use its reasonable best efforts to cause any Standard of Conduct
Determination required under Section 7(b) to be made as promptly as practicable. If (i) the person
or persons empowered or selected under Section 7(b) to make the Standard of Conduct Determination
shall not have made a determination within 30 days after the later of (A) receipt by the Company of
written notice from Indemnitee advising the Company of the final disposition of the applicable
Indemnifiable Claim (the date of such receipt being the “Notification Date”) and (B) the
selection of an Independent Counsel, if such determination is to be made by Independent Counsel,
that is permitted under the provisions of Section 7(e) to make such determination and
(ii) Indemnitee shall have fulfilled his obligations set forth in the second sentence of Section
7(b), then Indemnitee shall be deemed to have satisfied the applicable standard of conduct (absent
(A) 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 (B) prohibition of such indemnification under applicable law); provided that
such 30-day period may be extended for a reasonable time, not to exceed an additional 30 days, if
the person or persons making such determination in good faith requires such additional time for the
obtaining or evaluation of documentation and/or information relating thereto.
(d) If (i) Indemnitee shall be entitled to indemnification hereunder against any Indemnifiable
Losses pursuant to Section 7(a), (ii) no determination of whether Indemnitee has
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satisfied any applicable standard of conduct under Delaware law is a legally required
condition precedent to indemnification of Indemnitee hereunder against any Indemnifiable Losses, or
(iii) Indemnitee has been determined or deemed pursuant to Section 7(a) or (c) to have satisfied
any applicable standard of conduct under Delaware law which is a legally required condition
precedent to indemnification of Indemnitee hereunder against any Indemnifiable Losses, then the
Company shall pay to Indemnitee, within ten days after the later of (x) the Notification Date in
respect of the Indemnifiable Claim or portion thereof to which such Indemnifiable Losses are
related, out of which such Indemnifiable Losses arose or from which such Indemnifiable Losses
resulted and (y) the earliest date on which the applicable criterion specified in clause (i), (ii)
or (iii) above shall have been satisfied, an amount equal to the amount of such Indemnifiable
Losses.
(e) If a Standard of Conduct Determination is to be made by Independent Counsel, the
Independent Counsel shall be selected by the Board, and the Company shall give written notice to
Indemnitee advising him of the identity of the Independent Counsel so selected. Indemnitee may,
within 10 days after receiving written notice of selection from the Company, deliver to the Company
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 satisfy the criteria set forth in
the definition of “Independent Counsel” in Section 1(f), and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and timely objection, the
person or firm so selected shall act as Independent Counsel. If such written objection is properly
and timely made and substantiated, (i) the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a court has determined that
such objection is without merit and (ii) the Company may, at its option, select an alternative
Independent Counsel and give written notice to Indemnitee advising him of the identity of the
alternative Independent Counsel so selected, in which case the provisions of the two immediately
preceding sentences and clause (i) of this sentence shall apply to such subsequent selection and
notice. If applicable, the provisions of clause (ii) of the immediately preceding sentence shall
apply to successive alternative selections. If no Independent Counsel that is permitted under the
foregoing provisions of this Section 7(e) to make the Standard of Conduct Determination shall have
been selected within 30 days after the Company gives its initial notice pursuant to the first
sentence of this Section 7(e) or Indemnitee gives its initial notice pursuant to the second
sentence of this Section 7(e), as the case may be, either the Company or Indemnitee may petition a
court of competent jurisdiction (subject to Section 17) for resolution of any objection which shall
have been made by Indemnitee to the Company’s selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person or firm selected by the Court or by such other
person as the Court shall designate, and the person or firm with respect to whom all objections are
so resolved or the person or firm so appointed will act as Independent Counsel. In all events, the
Company shall pay all of the reasonable, documented fees and expenses of the Independent Counsel
incurred in connection with the Independent Counsel’s determination pursuant to Section 7.
8. Presumption of Entitlement. In making any Standard of Conduct Determination, the person or
persons making such determination shall presume that Indemnitee has satisfied the applicable
standard of conduct, and the Company may overcome such presumption only by clear and convincing
evidence to the contrary. Any Standard of Conduct Determination that is adverse to Indemnitee may
be challenged by Indemnitee in a judicial proceeding. No
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determination by the Company (including by its directors or any Independent Counsel) that
Indemnitee has not satisfied any applicable standard of conduct shall be a defense to any Claim by
Indemnitee for indemnification or reimbursement or advance payment of Expenses by the Company
hereunder or create a presumption that Indemnitee has not met any applicable standard of conduct.
9. No Other Presumption. For purposes of this Agreement, 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 Indemnitee did not meet
any applicable standard of conduct or that indemnification hereunder is otherwise not permitted.
10. Non-Exclusivity. The rights of Indemnitee hereunder will be in addition to any other
rights Indemnitee may have under the Constituent Documents, or the substantive laws of the
Company’s jurisdiction of formation, any other contract or otherwise (collectively, “Other
Indemnity Provisions”); provided, however, that (a) to the extent that Indemnitee otherwise
would have any greater right to indemnification under any Other Indemnity Provision, Indemnitee
will be deemed to have such greater right hereunder and (b) to the extent that any change is made
to any Other Indemnity Provision which permits any greater right to indemnification than that
provided under this Agreement as of the date hereof, Indemnitee will be deemed to have such greater
right hereunder. The Company will not adopt any amendment to any of the Constituent Documents the
effect of which would be to deny, diminish or encumber Indemnitee’s right to indemnification under
this Agreement or any Other Indemnity Provision.
11. Liability Insurance and Funding. For the duration of Indemnitee’s service as a director
and/or officer of the Company, and thereafter for so long as Indemnitee shall be subject to any
pending or possible Indemnifiable Claim, the Company shall use commercially reasonable efforts
(taking into account the scope and amount of coverage available relative to the cost thereof) to
cause to be maintained in effect policies of directors’ and officers’ liability insurance providing
coverage for directors and/or officers of the Company. The Company shall provide Indemnitee, upon
request, with a copy of all directors’ and officers’ liability insurance applications, binders,
policies, declarations, endorsements and other related materials. In all policies of directors’
and officers’ liability insurance obtained by the Company, Indemnitee shall be named as an insured
in such a manner as to provide Indemnitee the same rights and benefits, subject to the same
limitations, as are accorded to the Company’s directors and officers most favorably insured by such
policy. The Company may, but shall not be required to, create a trust fund, grant a security
interest or use other means, including without limitation a letter of credit, to ensure the payment
of such amounts as may be necessary to satisfy its obligations to indemnify and advance expenses
pursuant to this Agreement.
12. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee
against other persons or entities (other than Indemnitee’s successors), including any entity or
enterprise referred to in clause (i) of the definition of “Indemnifiable Claim” in Section 1(d).
Indemnitee shall execute all papers reasonably required to evidence such rights (all of
Indemnitee’s reasonable Expenses, including attorneys’ fees and charges, related thereto to be
reimbursed by or, at the option of Indemnitee, advanced by the Company).
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13. No Duplication of Payments. The Company shall not be liable under this Agreement to make
any payment to Indemnitee in respect of any Indemnifiable Losses to the extent Indemnitee has
otherwise actually received payment (net of Expenses incurred in connection therewith) under any
insurance policy, the Constituent Documents and Other Indemnity Provisions or otherwise (including
from any entity or enterprise referred to in clause (i) of the definition of “Indemnifiable Claim”
in Section 1(d)) in respect of such Indemnifiable Losses otherwise indemnifiable hereunder.
14. Defense of Claims. The Company shall be entitled to participate in the defense of any
Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to
Indemnitee; provided that if Indemnitee reasonably believes, after consultation with counsel
selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee
would present such counsel with an actual or potential conflict, (b) the named parties in any such
Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and
Indemnitee shall reasonably conclude that there may be one or more legal defenses available to him
that are different from or in addition to those available to the Company, or (c) any such
representation by such counsel would be precluded under the then-applicable standards of
professional conduct, then Indemnitee shall be entitled to retain separate counsel (but not more
than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable
Claim) at the Company’s expense. The Company shall not be liable to Indemnitee under this
Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim
effected without the Company’s prior written consent. The Company shall not, without the prior
written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable
Claim to which Indemnitee is or could have been a party unless such settlement solely involves the
payment of money and includes a complete and unconditional release of Indemnitee from all liability
on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor
Indemnitee shall unreasonably withhold its consent to any proposed settlement; provided that
Indemnitee may withhold consent to any settlement that does not provide a complete and
unconditional release of Indemnitee.
15. Successors and Binding Agreement. (a) The Company shall 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 Indemnitee and his/her counsel, 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 (and such successor will thereafter be deemed the “Company”
for purposes of this Agreement). This Agreement shall 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, but shall not otherwise be assignable
or delegable by the Company.
(b) This Agreement shall inure to the benefit of and be enforceable by Indemnitee’s personal
or legal representatives, executors, administrators, heirs, distributees, legatees and other
successors.
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(c) This Agreement is personal in nature and neither of the parties hereto shall, without the
consent of the other, assign or delegate this Agreement or any rights or obligations hereunder
except as expressly provided in Sections 15(a) and (b). Without limiting the generality or effect
of the foregoing, Indemnitee’s right to receive payments hereunder shall not be assignable, whether
by pledge, creation of a security interest or otherwise, other than by a transfer by Indemnitee’s
will or by the laws of descent and distribution, and, in the event of any attempted assignment or
transfer contrary to this Section 15(c), the Company shall have no liability to pay any amount so
attempted to be assigned or transferred.
16. Notices. For all purposes of this Agreement, all communications, including without
limitation notices, consents, requests or approvals, required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given when hand delivered or dispatched
by electronic facsimile transmission (with receipt thereof orally confirmed), or five business days
after having been mailed by United States registered or certified mail, return receipt requested,
postage prepaid or one business day after having been sent for next-day delivery by a nationally
recognized overnight courier service, addressed to the Company (to the attention of the Secretary
of the Company) and to Indemnitee at the applicable address shown on the signature page hereto, or
to such other address as any party may have furnished to the other in writing and in accordance
herewith, except that notices of changes of address will be effective only upon receipt.
17. Governing Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by and construed in accordance with the substantive laws of the State
of Delaware, without giving effect to the principles of conflict of laws of such State. The
Company and Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of the
State of Texas for all purposes in connection with any action or proceeding which arises out of or
relates to this Agreement and hereby waives any objections or defenses relating to jurisdiction
with respect to any lawsuit or other proceeding initiated in or transferred to such courts.
18. 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 shall not
be affected, and the provision so held to be invalid, unenforceable or otherwise illegal shall be
reformed to the extent, and only to the extent, necessary to make it enforceable, valid or legal.
In the event that any court or other adjudicative body shall decline to reform any provision of
this Agreement held to be invalid, unenforceable or otherwise illegal as contemplated by the
immediately preceding sentence, the parties thereto shall take all such action as may be necessary
or appropriate to replace the provision so held to be invalid, unenforceable or otherwise illegal
with one or more alternative provisions that effectuate the purpose and intent of the original
provisions of this Agreement as fully as possible without being invalid, unenforceable or otherwise
illegal.
19. Miscellaneous. No provision of this Agreement may be waived, modified or discharged
unless such waiver, modification or discharge is agreed to in writing signed by Indemnitee 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
shall be deemed a waiver of similar or dissimilar provisions or
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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 that are not set forth expressly in this Agreement.
20. Legal Fees and Expenses. It is the intent of the Company that Indemnitee not be required
to incur legal fees and or other Expenses associated with the interpretation, enforcement or
defense of Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and
expense thereof would substantially diminish the benefits intended to be extended to Indemnitee
hereunder. Accordingly, without limiting the generality or effect of any other provision hereof,
if it should appear to Indemnitee 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, Indemnitee the benefits provided
or intended to be provided to Indemnitee hereunder, the Company irrevocably authorizes Indemnitee
from time to time to retain counsel of Indemnitee’s choice, at the expense of the Company as
hereafter provided, to advise and represent Indemnitee 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, stockholder or
other person affiliated with the Company, in any jurisdiction. Without respect to whether
Indemnitee 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 reasonable, documented attorneys’ and
related fees and expenses incurred by Indemnitee in connection with any of the foregoing.
21. Certain Interpretive Matters. Unless the context of this Agreement otherwise requires,
(a) “it” or “its” or words of any gender include each other gender, (b) words using the singular or
plural number also include the plural or singular number, respectively, (c) the terms “hereof,”
“herein,” “hereby” and derivative or similar words refer to this entire Agreement, (d) “Section”
refers to the specified Section of this Agreement, (e) the terms “include,” “includes” and
“including” will be deemed to be followed by the words “without limitation” (whether or not so
expressed), and (f) the word “or” is disjunctive but not exclusive. Whenever this Agreement refers
to a number of days, such number will refer to calendar days unless business days are specified and
whenever action must be taken (including the giving of notice or the delivery of documents) under
this Agreement during a certain period of time or by a particular date that ends or occurs on a
non-business day, then such period or date will be extended until the immediately following
business day. As used herein, “business day” means any day other than Saturday, Sunday or a United
States federal holiday.
22. Counterparts. This Agreement may be executed in one or more counterparts, each of which
will be deemed to be an original but all of which together shall constitute one and the same
agreement.
[Signatures Appear On Following Page]
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IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly authorized
representative to execute this Agreement as of the date first above written.
| XXXXXXX & XXXXXXXXX INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Address for Notice: | ||||||
| [Indemnitee] | ||||||
| Name: | ||||||
| Title: | ||||||
| Address for Notice: | ||||||
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