Indemnification Agreement
Exhibit
10b (i)
Indemnification
Agreement (this “Agreement”),
dated as of __________, 2009 (the “Agreement
Date”), between X.X. Xxxxxxxx, Inc., an Illinois corporation (the “Company”),
and ____________________ (“Indemnitee”).
WHEREAS, Indemnitee
is a [director and/or officer] of the Company;
WHEREAS, both the
Company and Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of public companies in
today’s environment;
WHEREAS, the
Illinois Business Corporation Act of 1983, as amended (the “Illinois
Business Corporation Act”) and the By-Laws of the Company (the “By-Laws”)
expressly provide that the indemnification and advancement of expenses
provisions set forth therein are not exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under,
among other things, any agreement;
WHEREAS, the
Company, consistent with the practice of many other public companies, is
desirous of entering into individual agreements to provide its directors and
officers with contractual rights to indemnity and advancement of
expenses;
WHEREAS, the Board
of Directors of the Company has determined that the inability of the Company to
retain and attract the most capable persons as directors and officers would be
detrimental to the interests of the Company and that the Company therefore
should seek to assure such persons that indemnification and insurance coverage
will be available in the future; and
WHEREAS, in
recognition of Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service to the Company in
an effective manner, and to provide Indemnitee with specific contractual
assurances that indemnification and advancement of expenses will be available to
Indemnitee (regardless of, among other things, any amendment to or revocation of
the By-Laws 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 in this Agreement for the indemnification of and the advancing of
expenses to Indemnitee to the fullest extent permitted by law and as set forth
in this Agreement, and, to the extent insurance is maintained, for the continued
coverage of Indemnitee under the Company’s directors’ and officers’ liability
insurance policies.
NOW, THEREFORE, in
consideration of the premises and of Indemnitee agreeing to or continuing to
serve the Company directly or, at its request, another enterprise, and intending
to be legally bound hereby, the parties hereto 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:
(a) Change
in Control: any
one or more of the following events: (i) the consummation of: (1) any
merger, reorganization or consolidation of the Company or any Subsidiary with or
into any corporation or other Person if Persons who were the beneficial owners
(as such term is used in Rule 13d-3 under the Securities Exchange Act of 1934,
as amended (the “Act”))
of the Company’s Common Stock and securities of the Company entitled to vote
generally in the election of directors (“Voting
Securities”) immediately before such merger, reorganization or
consolidation are not, immediately thereafter, the beneficial owners, directly
or indirectly, of at least 60% of the then-outstanding common shares and the
combined voting power of the then-outstanding Voting Securities (“Voting
Power”) of the corporation or other Person surviving or resulting from
such merger, reorganization or consolidation (or the parent corporation thereof)
in substantially the same respective proportions as their beneficial ownership,
immediately before the consummation of such merger, reorganization or
consolidation, of the then-outstanding Common Stock and Voting Power of the
Company; or (2) the sale or other disposition of all or substantially all
of the consolidated assets of the Company, other than a sale or other
disposition by the Company of all or substantially all of its consolidated
assets to an entity of which at least 60% of the common shares and the Voting
Power outstanding immediately after such sale or other disposition are then
beneficially owned (as such term is used in Rule 13d-3 under the Act) by
shareholders of the Company in substantially the same respective proportions as
their beneficial ownership of Common Stock and Voting Power of the Company
immediately before the consummation of such sale or other disposition; or (ii)
approval by the shareholders of the Company of a liquidation or dissolution of
the Company; or (iii) the following individuals cease for any reason to
constitute a majority of the directors of the Company then serving: individuals
who, on the Agreement Date, constitute the Board and any subsequently-appointed
or elected director of the Company whose appointment or election by the Board or
nomination for election by the Company's shareholders was approved or
recommended by a vote of at least two-thirds of the Company’s directors then in
office whose appointment, election or nomination for election was previously so
approved or recommended or who were directors on the Agreement Date; or (iv) the
acquisition or holding by any person, entity or “group” (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Act), other than by any Exempt Person, the
Company, any Subsidiary, any employee benefit plan of the Company or a
Subsidiary, of beneficial ownership (as such term is used in Rule 13d-3 under
the Act) of 20% or more of either the Company’s then-outstanding Common Stock or
Voting Power; provided
that: (1) no such person, entity or group shall be deemed to own beneficially
any securities held by the Company or a Subsidiary or any employee benefit plan
(or any related trust) of the Company or a Subsidiary; (2) no Change in Control
shall be deemed to have occurred solely by reason of any such acquisition if
both (x) after giving effect to acquisition, such person, entity or group has
beneficial ownership of less than 30% of the then-outstanding Common Stock and
Voting Power of the Company and (y) prior to such acquisition, at least
two-thirds of the directors described in paragraph (iii) of this definition vote
to adopt a resolution of the Board to the specific effect that such acquisition
shall not be deemed a Change in Control; and (3) no Change in Control shall be
deemed to have occurred solely by reason any such acquisition or holding in
connection with any merger, reorganization or consolidation of the Company or
any Subsidiary which is not a Change in Control within the meaning of paragraph
(i)(1) of this definition.
(b) Claim: any
threatened, asserted, pending or completed civil, criminal, administrative,
investigative or other action, suit, proceeding or inquiry, including any
arbitration or other alternative dispute resolution mechanism, or appeal
thereof, whether instituted by the Company, any governmental agency or any other
party.
(c) Exempt
Person: any one or more of the following: (i) any descendant of X.X.
Xxxxxxxx, or any spouse, widow or widower of X.X. Xxxxxxxx or any such
descendant (any such descendants, spouses, widows and widowers collectively
defined as the “Grainger
Family Members”); (ii) any descendant of X.X. Xxxxxx, or any spouse,
widow or widower of X.X. Xxxxxx or any such descendant (any such descendants,
spouses, widows and widowers collectively defined as the “Xxxxxx
Family Members” and with the Grainger Family Members collectively defined
as the “Family
Members”); (iii) any trust which is in existence on the Agreement Date
and which has been established by one or more Grainger Family Members, any
estate of a Grainger Family Member who died on or before the Agreement Date, and
The Grainger Foundation (such trusts, estates and named entity collectively
defined as the “Grainger
Family Entities”); (iv) any trust which is in existence on the Agreement
Date and which has been established by one or more Xxxxxx Family Members, any
estate of a Slavik Family Member who died on or before the Agreement Date and
Xxxx XX Capital, Inc. (such trusts, estates and named entities collectively
defined as the “Xxxxxx
Family Entities” and with the Grainger Family Entities collectively
defined as the “Existing
Family Entities”); (v) any estate of a Family Member who dies after the
Agreement Date or any trust established after the Agreement Date by one or more
Family Members or Existing Family Entities; provided
that one or more Family Members, Existing Family Entities or charitable
organizations which qualify as exempt organizations under Section 501(c) of the
Internal Revenue Code of 1986, as amended (“Charitable
Organizations”), collectively are the beneficiaries of at least 50% of
the actuarially-determined beneficial interests in such estate or trust; (vi)
any Charitable Organization which is established by one or more Family Members
or Existing Family Entities (a “Family
Charitable Organization”); (vii) any corporation of which a majority of
the voting power and a majority of the equity interest is held, directly or
indirectly, by or for the benefit of one or more Family Members, Existing Family
Entities, estates or trusts described in clause (e) above, or Family Charitable
Organizations; or (viii) any partnership or other entity or arrangement of which
a majority of the voting interest and a majority of the economic interest is
held, directly or indirectly, by or for the benefit of one or more Family
Members, Existing Family Entities, estates or trusts described in clause (v)
above, or Family Charitable Organizations.
(d) Expenses: attorneys’
fees and all other costs, expenses and obligations (including, without
limitation, experts’ fees, court costs, retainers, transcript fees, duplicating,
printing and binding costs, telecommunications, postage and courier charges and
travel expenses) paid or incurred 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, any Claim relating to
any Indemnifiable Event.
(e) Indemnifiable
Amounts: any and all Expenses, damages, judgments, fines,
penalties, excise taxes assessed with respect to an employee benefit plan and
amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such Expenses,
judgments, fines, penalties, excise taxes assessed with respect to an employee
benefit plan or amounts paid in settlement) arising out of or resulting from any
Claim relating to an Indemnifiable Event.
(f) Indemnifiable
Event: any event, occurrence or omission, whether taking place
before, on or after the date of this Agreement, related to the fact that
Indemnitee is or was a director and/or officer or fiduciary of the Company, or
is or was serving at the request of the Company as a director, officer,
employee, trustee, agent or fiduciary of another corporation, limited liability
company, partnership, joint venture, employee benefit plan, trust or other
entity or enterprise, or by reason of anything done or not done by
Indemnitee in any such capacity.
(g) Independent
Legal Counsel: an attorney or firm of attorneys, selected by
Indemnitee and approved by the Company (which approval shall not be unreasonably
delayed, conditioned or withheld), who is experienced in matters of corporate
law and who shall not have otherwise performed a material amount of
services for the Company or Indemnitee within the last five years (other
than with respect to (i) matters concerning the rights of Indemnitee under this
Agreement, or of other indemnitees under similar indemnity agreements or (ii)
matters for which counsel may have been retained in the past by the independent
directors of the Company’s Board of Directors).
(h) Person: any
individual, corporation, partnership, limited liability company, sole
proprietorship, trust or other entity.
(i) Reviewing
Party: any appropriate person or body consisting of a member
or members of the Company’s Board of Directors or any other person or body
appointed by the Board who is not a party to the particular Claim for which
Indemnitee is seeking indemnification, or Independent Legal
Counsel.
(j) Subsidiary: a
corporation, limited liability company, partnership or other business entity in
which the Company, directly or indirectly, holds a majority of the voting power
of the outstanding securities.
2. Basic
Indemnification Arrangement; Advancement of Expenses.
(a) In the event
Indemnitee was, is or becomes a party to or witness or other participant in, or
is threatened to be made a party to or witness or other participant in, a Claim
by reason of (or arising in part out of) an Indemnifiable Event, the Company
shall indemnify Indemnitee, or cause Indemnitee to be indemnified, to the
fullest extent permitted by law as soon as practicable but in any event no later
than thirty days after written demand is presented to the Company, against any
and all Indemnifiable Amounts.
(b) Upon the written
request of Indemnitee delivered to the Corporate Secretary of the Company, the
Company shall advance (within five business days of such request) any and all
reasonable Expenses incurred by Indemnitee (an “Expense
Advance”). The Company shall, in accordance with such request
(but without duplication), either (i) pay such Expenses on behalf of Indemnitee,
or (ii) reimburse Indemnitee for such Expenses. Indemnitee’s right to
an Expense Advance is absolute and shall not be subject to any prior
determination by the Reviewing Party that Indemnitee has satisfied any
applicable standard of conduct for indemnification.
(c) Notwithstanding
anything in this Agreement to the contrary, Indemnitee shall not be entitled to
indemnification or advancement of Expenses pursuant to this Agreement in
connection with any Claim initiated by Indemnitee unless (i) the Company has
joined in or Company’s Board of Directors has authorized or consented to the
initiation of such Claim or (ii) the Claim is one to enforce Indemnitee’s rights
under this Agreement (including an action pursued by the Indemnitee to secure a
determination that the Indemnitee should be indemnified under applicable
law).
(d) Notwithstanding the
foregoing, (i) the indemnification obligations of the Company under Section 2(a)
shall be subject to the condition that the Reviewing Party shall not have
determined (in a written opinion, in any case in which the Independent Legal
Counsel referred to in Section 4 hereof is involved) that Indemnitee would not
be permitted to be indemnified under applicable law, and (ii) the obligation of
the Company to make an Expense Advance pursuant to Section 2(b) shall be subject
to the condition that, if, when and to the extent that the Reviewing Party
determines that Indemnitee would not be permitted to be so indemnified under
applicable law, the Company shall be entitled to be reimbursed by Indemnitee
(who hereby agrees to reimburse the Company) for all such amounts theretofore
paid (and the foregoing agreement by Indemnitee shall be deemed to satisfy any
requirement that Indemnitee provide the Company with an undertaking to repay any
Expense Advance if it is ultimately determined that the Indemnitee is not
entitled to indemnification under applicable law); provided,
however,
that if Indemnitee has commenced or thereafter commences legal proceedings in a
court of competent jurisdiction to secure a determination that Indemnitee should
be indemnified under applicable law, any determination made by the Reviewing
Party that Indemnitee would not be permitted to be indemnified under applicable
law shall not be binding and Indemnitee shall not be required to reimburse
the Company for any Expense Advance until a final judicial determination to
that effect is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed). Indemnitee’s undertaking to
repay such Expense Advances shall be unsecured and interest-free. If
there has not been a Change in Control, the Reviewing Party shall be selected by
the Company’s Board of Directors, and if there has been such a Change in
Control, the Reviewing Party shall be the Independent Legal Counsel referred to
in Section 4 hereof. If there has been no determination by the
Reviewing Party within thirty days after written demand is presented to the
Company or if the Reviewing Party determines that Indemnitee would not be
permitted to be indemnified in whole or in part under applicable law, Indemnitee
shall have the right to commence litigation in any court in the State of
Illinois having subject matter jurisdiction thereof and in which venue is proper
seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, including the legal
or factual bases therefor, and the Company hereby consents to service of process
and to appear in any such proceeding. Otherwise, any determination by
the Reviewing Party shall be conclusive and binding on the Company and
Indemnitee.
(e) Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in the defense of any or all Claims
relating in whole or in part to an Indemnifiable Event or in defense of any
issue or matter therein, including dismissal without prejudice, Indemnitee shall
be indemnified against all reasonable Expenses incurred in connection
therewith.
3. Defense
of Claims. The
Company shall be entitled to participate in the defense of any Claim relating to
an Indemnifiable Event or to assume the defense thereof, with counsel reasonably
satisfactory to the Indemnitee; provided,
however,
that if Indemnitee believes, after consultation with counsel selected by
Indemnitee and paid for by the Company, that (i) the use of counsel chosen by
the Company to represent Indemnitee would present such counsel with an actual or
potential conflict of interest, (ii) the named parties in any such Claim
(including any impleaded parties) include both the Company and Indemnitee and
Indemnitee concludes that there may be one or more legal defenses available to
him or her that are different from or in addition to those available to the
Company, or (iii) any such representation by such counsel would be precluded
under the applicable standards of professional conduct then prevailing, 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 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 Claim
relating to an Indemnifiable Event effected without the Company’s prior written
consent. The Company shall not, without the prior written consent of
the Indemnitee, effect any settlement of any Claim relating to an Indemnifiable
Event which the 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 all claims that are the subject
matter of such Claim. Neither the Company nor Indemnitee shall
unreasonably withhold or delay its or his or her consent to any proposed
settlement; provided,
however,
that Indemnitee may withhold consent to any settlement that does not provide a
complete and unconditional release of Indemnitee.
4. Change
in Control. The Company agrees that if there is a Change in
Control of the Company then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and Expense Advances
under this Agreement or any provision of the Restated Articles of Incorporation
of the Company (the “Articles
of Incorporation”) or By-Laws now or hereafter in effect, the Company
shall seek legal advice only from Independent Legal Counsel. Such
counsel, among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee would be permitted to
be indemnified under applicable law. The Company agrees to pay the
reasonable fees of the Independent Legal Counsel and to indemnify fully such
counsel against any and all expenses (including attorneys’ fees), claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
5. Indemnification
for Additional Expenses. The Company shall indemnify
Indemnitee against any and all reasonable Expenses and, if requested by
Indemnitee, shall advance such Expenses to Indemnitee subject to and in
accordance with Section 2(b), which are incurred by Indemnitee in connection
with any action brought by Indemnitee for (i) indemnification or an Expense
Advance by the Company under this Agreement or any provision of the Company’s
Articles of Incorporation or By-Laws now or hereafter in effect and/or (ii)
recovery under any directors’ and officers’ liability insurance policies
maintained by the Company, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, Expense Advance or insurance
recovery, as the case may be; provided,
however,
that the Indemnitee shall be required to reimburse such Indemnifiable Amounts in
the event that a final judicial determination is made (as to which all rights of
appeal therefrom have been exhausted or lapsed) that such action brought by the
Indemnitee, or the defense by the Indemnitee of an action brought by the Company
or any other Person, as applicable, was frivolous or in bad
faith.
6. Partial
Indemnity, Etc. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of the
Expenses or other Indemnifiable Amounts in respect of a Claim but not, however,
for all of the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion thereof to which Indemnitee is
entitled.
7. Burden
of Proof. In connection with any determination by the
Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified hereunder, the Reviewing Party or court shall presume that the
Indemnitee has satisfied the applicable standard of conduct and is entitled to
indemnification, and the burden of proof shall be on the Company to establish,
by clear and convincing evidence, that Indemnitee is not so
entitled. Indemnitee shall be entitled to rely in good faith upon the
records of the Company, including its financial statements, or upon information,
opinions, reports or statements furnished to Indemnitee by the officers or
employees of the Company in the course of their duties, or by committees of the
Company’s Board of Directors, or by any other person (including legal counsel,
accountants and financial advisors) as to matters Indemnitee reasonably believes
are within such other person’s professional or expert competence and who has
been selected with reasonable care by or on behalf of the Company. In
addition, the knowledge, actions, or failures to act of any director,
officer, agent or employee of the Company shall not be imputed to Indemnitee for
purposes of determining the right to indemnity hereunder.
8. No
Other Presumptions. For purposes of this Agreement, the
termination of any claim, action, suit or proceeding, by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not
permitted by applicable law. In any legal proceedings by Indemnitee
to secure a judicial determination that Indemnitee should be indemnified under
this Agreement, neither the failure of the Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of conduct or did not
have such belief, shall be a defense to Indemnitee’s claim or create a
presumption that Indemnitee has not met any particular standard of conduct or
did not have any particular belief.
9. Nonexclusivity,
Etc. The rights of the Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Company’s Articles of
Incorporation or By-Laws, the Illinois Business Corporation Act or
otherwise. To the extent that a change in applicable law or the
interpretation thereof (whether by statute or judicial decision) permits greater
indemnification by agreement than would be afforded currently under the
Company’s Articles of Incorporation or By-Laws or this Agreement, it is the
intent of the parties hereto that Indemnitee shall enjoy by this Agreement
the greater benefits so afforded by such change. To the extent that
there is a conflict or inconsistency between the terms of this Agreement and the
Company’s Articles of Incorporation or By-Laws, it is the intent of the parties
hereto that the Indemnitee shall enjoy the greater benefits regardless of
whether contained herein, in the Company’s Articles of Incorporation or
By-Laws. No amendment or alteration of the Company’s Articles of
Incorporation or By-Laws or any other agreement shall adversely affect the
rights provided to Indemnitee under this Agreement.
10. Liability
Insurance. To the extent the Company maintains an insurance
policy or policies providing directors’ and officers’ liability insurance, the
Company shall use all commercially reasonable efforts to provide coverage to
Indemnitee under such policy or policies, in accordance with its or their terms,
to the maximum extent of the coverage available for any similarly situated
person at the Company.
11. Period
of Limitations. No legal action shall be brought and no cause
of action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal
action within such two-year period; provided,
however,
that if any shorter period of limitations is otherwise applicable to any such
cause of action such shorter period shall govern.
12. Amendments,
Etc. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing
waiver.
13. Subrogation. In
the event of payment by the Company under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Indemnitee with respect to any insurance policy. Indemnitee shall
execute all papers reasonably required and shall do everything that may be
reasonably necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights. The Company shall pay or reimburse all expenses actually
and reasonably incurred by Indemnitee in connection with such
subrogation.
14. No
Duplication of Payments. The Company shall not be liable under
this Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, any provision of the Company’s Articles of
Incorporation or By-Laws or otherwise) of the amounts otherwise indemnifiable
hereunder.
15. Binding
Effect, Etc. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors, (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), assigns, spouses, heirs, executors and personal and
legal representatives. The Company shall require and cause any
successor (whether direct or indirect by purchase, merger, consolidation, or
otherwise) to all or substantially all of the business and/or assets of the
Company, by written agreement in form and substance satisfactory to Indemnitee
and his or her counsel, expressly 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; provided,
however,
that no such assumption shall relieve the Company from its obligations hereunder
and any obligations shall thereafter be joint and several. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as an officer and/or director of the Company or of any other entity or
enterprise at the Company’s request. Neither this Agreement nor any
duties or responsibilities pursuant hereto may be assigned by the Company to any
other person or entity without the prior written consent of
Indemnitee.
16. Severability. The
provisions of this Agreement shall 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 in any respect, and the validity and enforceability of
any such provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired and shall remain enforceable to the fullest
extent permitted by law.
17. Specific
Performance, Etc. The parties recognize that if any provision
of this Agreement is violated by the Company, Indemnitee may be without an
adequate remedy at law. Accordingly, in the event of any such
violation, Indemnitee shall be entitled, if Indemnitee so elects, to institute
proceedings, either in law or at equity, to obtain damages, to enforce specific
performance, to enjoin such violation, or to obtain any relief or any
combination of the foregoing as Indemnitee may elect to
pursue.
18. Notices. All
notices, requests, consents and other communications hereunder to any party
shall be deemed to be sufficient if contained in a written document delivered in
person or sent by telecopy, nationally recognized overnight courier or personal
delivery, addressed to such party at the address set forth below or such other
address as may hereafter be designated on the signature pages of this Agreement
or in writing by such party to the other parties:
(a) If to the Company,
to:
X.X. Xxxxxxxx,
Inc.
000 Xxxxxxxx
Xxxxxxx
Xxxx Xxxxxx,
Xxxxxxxx 00000
Attn: General
Counsel
(b) If to Indemnitee,
to the address set forth on Annex
A hereto.
All such notices,
requests, consents and other communications shall be deemed to have been given
or made if and when received (including by overnight courier) by the parties at
the above addresses or sent by electronic transmission, with confirmation
received, to the telecopy numbers specified above (or at such other address or
telecopy number for a party as shall be specified by like
notice). Any notice delivered by any party hereto to any other party
hereto shall also be delivered to each other party hereto simultaneously with
delivery to the first party receiving such notice.
19. Counterparts. This
Agreement may be executed in counterparts, each of which shall for all purposes
be deemed to be an original but all of which together shall 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.
20. Headings. The
headings of the sections and paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction or interpretation thereof.
21. Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Illinois applicable to
contracts made and to be performed in such state without giving effect to the
principles of conflicts of laws.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
X.X. XXXXXXXX,
INC.
By:__________________________
Name:
Title:
_____________________________
[Indemnitee]
ANNEX
A
Name
and Business
Address.
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Attn:
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Tel:
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Fax:
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