FORM OF INDEMNIFICATION AGREEMENT
Exhibit 10.2
FORM OF INDEMNIFICATION AGREEMENT
This
Indemnification Agreement is dated as of
the day of May, 2018 (this
“Agreement”)
and is by and between Fusion Connect, Inc., a Delaware corporation
(the “Company”),
and [Name of Director/Executive Officer] (the “Indemnitee”).
WHEREAS, in order to induce Indemnitee
to serve as a [director/executive officer] of the Company, the
Company wishes to provide for the indemnification of, and the
advancement of Expenses (as defined herein) to, Indemnitee to the
maximum extent permitted by law;
WHEREAS, the Amended and Restated
Certificate of Incorporation of the Company (as amended, restated
or otherwise modified from time to time, the “Charter”)
provides for the indemnification of the Company’s directors
and officers to the fullest extent permitted by law;
WHEREAS, the Amended and Restated
By-Laws of the Company (as amended, restated or otherwise modified
from time to time, the “Bylaws”)
provide certain indemnification rights to the Company’s
directors and officers; and
WHEREAS, the Company and Indemnitee
desire to enter into this Agreement to set forth their agreement
regarding indemnification and the advancement of Expenses and to
clarify the priority of the indemnification and advancement of
Expenses with respect to certain Jointly Indemnifiable Claims (as
defined herein).
NOW, THEREFORE, in consideration of
Indemnitee’s service to the Company and the covenants and
agreements set forth below, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby
agree as follows.
Section 1. Indemnification.
To the
fullest extent permitted by the Delaware General Corporation Law
(the “DGCL”):
(a) The
Company shall indemnify Indemnitee if Indemnitee was or is made or
is threatened to be made a party to, or is otherwise involved in,
as a witness or otherwise, any threatened, pending or completed
Action, Suit or Proceeding (brought in the right of the Company or
otherwise), whether civil, criminal, administrative or
investigative and whether formal or informal, including
appeals.
(b) The
indemnification provided by this Section 1 shall be from and
against all loss and liability suffered and Expenses (including
attorneys’ fees), Judgments, Fines and Amounts Paid in
Settlement actually and reasonably incurred by or on behalf of
Indemnitee in connection with such Action, Suit or Proceeding,
including any appeals.
Section 2. Payment of
Expenses. To the fullest extent permitted by the DGCL,
Expenses (including attorneys’ fees) incurred by Indemnitee
in appearing at, participating in or defending any Action, Suit or
Proceeding or in connection with an enforcement action as
contemplated by Section
3(d), shall be paid by the Company in advance of the final
disposition of such Action, Suit or Proceeding or such enforcement
action within 5 days after receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances from
time to time. Such payment includes, but is not limited to, any and
all Expenses paid or incurred by Indemnitee or which Indemnitee
determines are reasonably likely to be paid or incurred by
Indemnitee in connection with any Action, Suit or Proceeding or in
connection with an enforcement action made, instituted or conducted
by Indemnitee, in each case, to the fullest extent permitted by the
DGCL. Indemnitee’s right to such advancement of Expenses is
not subject to the satisfaction of any standard of conduct and is
not conditioned upon any prior determination that Indemnitee is
entitled to indemnification under this Agreement with respect to
such Action, Suit or Proceeding or in connection with an
enforcement action or the absence of any prior determination to the
contrary. The Indemnitee hereby undertakes to repay any amounts
advanced (without interest) to the extent that it is ultimately
determined that Indemnitee is not entitled under this Agreement to
be indemnified by the Company in respect of such Action, Suit or
Proceeding or such enforcement action as contemplated by
Section 3(d). No
other form of undertaking shall be required of Indemnitee other
than the execution of this Agreement. This Section 2 shall be subject to
Section 3(b) and
shall not apply to any claim made by Indemnitee for which indemnity
is excluded pursuant to Section 6(a).
Section 3. Procedure for
Indemnification; Notification and Defense of
Claim.
(a) Promptly
after receipt by Indemnitee of notice of the commencement of any
Action, Suit or Proceeding, Indemnitee shall, if a claim in respect
thereof is to be made or could be made against the Company
hereunder, notify the Company in writing of the commencement
thereof. The failure to promptly notify the Company of the
commencement of the Action, Suit or Proceeding, or of
Indemnitee’s request for indemnification, will not relieve
the Company from any liability that it may have to Indemnitee
hereunder, except and only to the extent the Company is actually
and materially prejudiced (through the forfeiture of substantive
rights or defenses) in its defense of such Action, Suit or
Proceeding as a result of such failure. To obtain indemnification
under this Agreement, Indemnitee shall submit to the Company a
written request therefor including such documentation and
information as is reasonably available to Indemnitee and is
reasonably necessary to enable the Company to determine whether and
to what extent Indemnitee is entitled to indemnification. In
addition, Indemnitee shall reasonably cooperate with the Company
and shall give the Company such additional information as the
Company may reasonably require.
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(b) With
respect to any Action, Suit or Proceeding of which the Company is
so notified as provided in this Agreement, the Company shall,
subject to the last two sentences of this paragraph and subject to
the Company’s prior determination pursuant to Section 3(c) to grant
Indemnitee’s indemnification request with respect to such
Action, Suit or Proceeding, be entitled to assume the defense of
such Action, Suit or Proceeding, with counsel reasonably acceptable
to Indemnitee (which acceptance shall not be unreasonably withheld
or delayed), upon the delivery to Indemnitee of written notice of
its election to do so. After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the
Company, the Company will not be liable to Indemnitee under this
Agreement for any subsequently-incurred fees of separate counsel
engaged by or on behalf of Indemnitee with respect to the same
Action, Suit or Proceeding unless (i) the employment of separate
counsel by Indemnitee has been previously authorized in writing by
the Company or (ii) the Company does not continue to retain such
counsel to defend such Action, Suit or Proceeding. Notwithstanding
the foregoing, if Indemnitee, based on the advice of his or her
counsel, shall have reasonably concluded (with written notice being
given to the Company setting forth the basis for such conclusion)
that, in the conduct of any such defense, there is or is reasonably
likely to be a conflict of interest or position between the Company
and Indemnitee with respect to a significant issue, then the
Company will not be entitled, without the written consent of
Indemnitee, to assume such defense. In addition, the Company will
not be entitled, without the written consent of Indemnitee, to
assume the defense of any claim brought by or in the right of the
Company.
(c) The
determination whether to grant Indemnitee’s indemnification
request shall be made promptly and in any event within 30 days
following the Company’s receipt of a request for
indemnification in accordance with Section 3(a). If the Company
determines that Indemnitee is entitled to such indemnification, the
Company will make payment to Indemnitee of the indemnifiable amount
within such 30 day period. If the Company’s determination of
whether to grant Indemnitee’s indemnification request shall
not have been made within such 30 day period, the requisite
determination of entitlement to indemnification shall, subject to
Section 6,
nonetheless be deemed to have been made and Indemnitee shall be
entitled to such indemnification, absent (i) 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
(ii) a prohibition of such indemnification under the DGCL.
(d) In
the event that (i) the Company determines in accordance with this
Section 3 that
Indemnitee is not entitled to indemnification under this Agreement,
(ii) the Company denies a request for indemnification, in whole or
in part, or fails to respond or make a determination of entitlement
to indemnification within 30 days following receipt of a request
for indemnification as described above, (iii) payment of
indemnification is not made within such 30 day period, (iv)
advancement of Expenses is not timely made in accordance with
Section 2, or (v)
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, the Indemnitee the benefits provided or
intended to be provided to Indemnitee hereunder, Indemnitee shall
be entitled to an adjudication in any court of competent
jurisdiction of his or her entitlement to such indemnification or
advancement of Expenses. To the extent not already advanced
pursuant to Section
2, Indemnitee’s Expenses (including attorneys’
fees) incurred in connection with successfully establishing
Indemnitee’s right to indemnification or advancement of
Expenses, in whole or in part, in any such proceeding or otherwise
shall also be indemnified by the Company; provided that to the extent
Indemnitee is successful in part and unsuccessful in part in
establishing Indemnitee’s right to indemnification or
advancement of Expenses hereunder, Indemnitee shall be entitled to
partial indemnification of Expenses in accordance with Section 20.
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(e) Indemnitee
shall be presumed to be entitled to indemnification and advancement
of Expenses under this Agreement upon submission of a request
therefor in accordance with Section 2 or Section 3 of this Agreement, as
the case may be. The Company shall have the burden of proof in
overcoming such presumption, and such presumption shall be used as
a basis for a determination of entitlement to indemnification and
advancement of Expenses unless the Company overcomes such
presumption by clear and convincing evidence. Neither the failure
of the Company to have made a determination prior to the
commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because Indemnitee
has met the applicable standard of conduct, nor an actual
determination by the Company that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that Indemnitee has not met the applicable
standard of conduct. For purposes of this Agreement, the
termination of any 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 a particular belief or that a court has
determined that indemnification is not permitted under this
Agreement or applicable law.
Section 4. Insurance and
Subrogation.
(a)
To the extent the Company maintains a policy or policies of
insurance providing directors’ and officers’ liability
insurance, Indemnitee shall be covered by such policy or policies,
in accordance with its or their terms, to the maximum extent of the
coverage provided to any other director or executive officer of the
Company. If, at the time the Company receives from Indemnitee any
notice of the commencement of an Action, Suit or Proceeding, the
Company has such insurance in effect that would reasonably be
expected to cover such Action, Suit or Proceeding, then the Company
shall give prompt notice of the commencement of such Action, Suit
or Proceeding to the insurers in accordance with the procedures set
forth in such policy or policies. The Company shall thereafter take
all necessary or reasonably desirable action to cause such insurers
to pay, on behalf of Indemnitee, all amounts payable as a result of
such Action, Suit or Proceeding in accordance with the terms of
such policy or policies.
(b)
Subject to Section 9(b), in the event of any 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 Indemnitee with
respect to any insurance policy. Indemnitee shall execute all
papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to
enable the Company to effectively bring suit to enforce such rights
in accordance with the terms of such insurance policy. The Company
shall pay or reimburse all Expenses actually and reasonably
incurred by Indemnitee in connection with such
subrogation.
(c)
Subject to Section 9(b), the Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable
hereunder (including, but not limited to, Judgments, Fines and
Amounts Paid in Settlement, and ERISA excise taxes or penalties) if
and to the extent that Indemnitee has otherwise actually received
such payment under this Agreement or any insurance policy,
contract, agreement or otherwise.
Section 5. Certain
Definitions. For purposes of this Agreement, the following
definitions shall apply:
(a) The
term “Action, Suit or
Proceeding” shall be broadly construed and shall
include, without limitation, the investigation, preparation,
prosecution, defense, settlement, arbitration and appeal of, and
the giving of testimony in, any threatened, pending or completed
claim, action, suit, arbitration, investigation, inquiry,
alternative dispute mechanism or proceeding, whether civil
(including intentional and unintentional tort claims), criminal,
administrative or investigative, in each case, by reason of the
service of Indemnitee as a director [or executive officer] of the
Company, or by reason of any action alleged to have been taken or
omitted in any such capacity.
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(b) The
term “Expenses”
shall be broadly construed and shall include, without limitation,
all direct and indirect costs of any type or nature whatsoever
(including, without limitation, all attorneys’ fees and
related disbursements, appeal bonds, other out-of-pocket costs and
reasonable compensation for time spent by Indemnitee for which
Indemnitee is not otherwise compensated by the Company or any third
party), in each case, actually and reasonably incurred by or on
behalf of Indemnitee in connection with either the investigation,
defense or appeal of an Action, Suit or Proceeding or establishing
or enforcing a right to indemnification under this Agreement or
otherwise incurred in connection with a claim that is indemnifiable
hereunder.
(c) The
term “Judgments, Fines
and Amounts Paid in Settlement” shall be broadly
construed and shall include, without limitation, all direct and
indirect payments of any type or nature whatsoever, as well as any
penalties or excise taxes assessed on a person with respect to an
employee benefit plan.
Section 6. Limitation on
Indemnification. Notwithstanding any other provision herein
to the contrary, the Company shall not be obligated pursuant to
this Agreement:
(a) Claims
Initiated by Indemnitee. To
indemnify or advance Expenses to Indemnitee with respect to
any threatened, pending or completed claim, action, suit,
arbitration, investigation, inquiry, alternative dispute mechanism
or proceeding, whether civil (including intentional and
unintentional tort claims), criminal, administrative or
investigative, however denominated,
initiated or brought voluntarily by Indemnitee, whether by way of
defense, counterclaim, cross claim or otherwise, other than (i) an
action brought to establish or enforce a right to indemnification
or advancement of Expenses under this Agreement (which shall be
governed by the provisions of Section 6(b)
of this Agreement), (ii) a
claim, action, suit, arbitration, investigation, inquiry,
alternative dispute mechanism or proceeding that was authorized or consented to by the Board
of Directors of the Company, it being understood and agreed
that such authorization or consent shall not be unreasonably
withheld in connection with any compulsory counterclaim brought by
Indemnitee in response to an Action,
Suit or Proceeding otherwise indemnifiable under this
Agreement or (iii) as otherwise required under the
DGCL.
(b) Action
for Indemnification. To indemnify Indemnitee for any
Expenses incurred by Indemnitee
with respect to an action
instituted by Indemnitee to enforce or interpret this Agreement if
Indemnitee is not successful in such enforcement action in establishing
Indemnitee’s right, in whole or in part, to indemnification
or advancement of Expenses
hereunder; provided
that to the extent Indemnitee is successful in part and
unsuccessful in part in establishing Indemnitee’s right to
indemnification or advancement of Expenses hereunder, Indemnitee
shall be entitled to partial indemnification of Expenses in
accordance with Section
20.
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(c) Section
16(b) Matters. To indemnify Indemnitee on account of any
Action, Suit or Proceeding in
which judgment is rendered against Indemnitee for disgorgement of
profits made from the purchase or sale by Indemnitee of securities
of the Company pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934, as amended; provided, however, that notwithstanding
any limitation set forth in this Section 6(c) regarding the
Company’s obligation to provide indemnification, Indemnitee
shall be entitled under Section 2 hereof to advancement
of Expenses in connection with
any such Action, Suit or
Proceeding unless and until Indemnitee has been determined
by a final (not interlocutory) judgment or other adjudication of a
court or arbitration or administrative body of competent
jurisdiction as to which there is no further right or option of
appeal or the time within which an appeal must be filed has expired
without such filing to have violated said statute, in which case
Indemnitee hereby undertakes to repay any such amounts advanced
(without interest).
(d) Fraud
or Willful Misconduct. To indemnify Indemnitee on account of
conduct by Indemnitee where such conduct has been determined by a
final (not interlocutory) judgment or other adjudication of a court
or arbitration or administrative body of competent jurisdiction as
to which there is no further right or option of appeal or the time
within which an appeal must be filed has expired without such
filing to have been knowingly fraudulent or constitute willful
misconduct.
(e) Prohibited
by Law. To indemnify Indemnitee in any circumstance where
such indemnification has been determined to be prohibited by law by
a final (not interlocutory) judgment or other adjudication of a
court or arbitration or administrative body of competent
jurisdiction as to which there is no further right or option of
appeal or the time within which an appeal must be filed has expired
without such filing.
(f) Unauthorized
Settlement. To indemnify Indemnitee for any amounts paid in
settlement of any Action, Suit or
Proceeding without the Company’s prior written
consent. The Company will not unreasonably withhold or delay its
consent to any proposed settlement.
Section 7. Certain Settlement
Provisions. The Company shall be permitted to settle any
Action, Suit or Proceeding,
except that it shall not settle any Action, Suit or Proceeding in any manner
that would impose any penalty (unless the only penalty imposed is a
monetary amount that will be paid in full by the Company (or its
insurers)) or limitations or constitute any admission of wrongdoing
or which may compromise, or may adversely affect, the defense of
the Indemnitee in any other Action,
Suit or Proceeding, whether civil or criminal, without
Indemnitee’s prior written consent. Indemnitee will not
unreasonably withhold or delay his or her consent to any proposed
settlement.
Section 8. Savings
Clause. If any provision or provisions (or portion thereof)
of this Agreement shall be invalidated on any ground by any court
of competent jurisdiction, then the Company shall nevertheless
indemnify Indemnitee if Indemnitee was or is made or is threatened
to be made a party or is otherwise involved in any threatened,
pending or completed Action, Suit or
Proceeding (brought in the right of the Company or
otherwise), whether civil, criminal, administrative or
investigative and whether formal or informal, including appeals,
from and against all loss and liability suffered and Expenses (including attorneys’ fees),
Judgments, Fines and Amounts Paid in Settlement actually and
reasonably incurred by or on behalf of Indemnitee in connection
with such Action, Suit or
Proceeding, including any appeals, to the fullest extent
permitted by any applicable portion of this Agreement that shall
not have been invalidated.
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Section 9. Contribution;
Jointly Indemnifiable Claims.
(a) In
order to provide for just and equitable contribution in
circumstances in which the indemnification provided for herein is
held by a court of competent jurisdiction to be unavailable to
Indemnitee in whole or in part, it is agreed that, in such event,
the Company shall, to the fullest extent permitted by law,
contribute to the payment of all of Indemnitee’s loss and
liability suffered and Expenses
(including attorneys’ fees), Judgments, Fines and Amounts
Paid in Settlement actually and reasonably incurred by or on behalf
of Indemnitee in connection with any Action, Suit or Proceeding, including any
appeals, in an amount that is just and equitable in the
circumstances; provided, that, without
limiting the generality of the foregoing, such contribution shall
not be required where such holding by the court is due to any
limitation on indemnification set forth in Section 4(c), Section 6 or Section 7 hereof.
(b) Given
that certain Jointly Indemnifiable Claims by reason of the service
of Indemnitee as a director [or executive officer] of the Company,
or by reason of any action alleged to have been taken or omitted in
any such capacity, the Company acknowledges and agrees that the
Company shall be fully and primarily responsible for the payment to
the Indemnitee in respect of indemnification or advancement of
Expenses in connection with any
such Jointly Indemnifiable Claim, pursuant to and in accordance
with (as applicable) the terms of (i) the DGCL, (ii) the Charter,
(iii) the Bylaws, (iv) this Agreement, or (v) any other agreement
between the Company and the Indemnitee pursuant to which the
Indemnitee is indemnified, ((i) through (v) collectively, the
“Indemnification
Sources”), irrespective of any right of recovery the
Indemnitee may have from the Indemnitee-Related Entities. Under no
circumstance shall the Company be entitled to any right of
subrogation or contribution by the Indemnitee-Related Entities and
no right of advancement or recovery the Indemnitee may have from
the Indemnitee-Related Entities shall reduce or otherwise alter the
rights of the Indemnitee or the obligations of the Company under
the Indemnification Sources. In the event that any of the
Indemnitee-Related Entities shall make any payment to the
Indemnitee in respect of indemnification or advancement of
Expenses with respect to any
Jointly Indemnifiable Claim, (i) the Company shall reimburse the
Indemnitee-Related Entity making such payment to the extent of such
payment promptly upon written demand from such Indemnitee-Related
Entity, (ii) to the extent not previously and fully reimbursed by
the Company pursuant to clause (i), the Indemnitee-Related Entity
making such payment shall be subrogated to the extent of the
outstanding balance of such payment to all of the rights of
recovery of the Indemnitee against the Company, and (iii)
Indemnitee shall execute all papers reasonably required and shall
do all things that may be reasonably necessary to secure such
rights, including the execution of such documents as may be
necessary to enable the Indemnitee-Related Entities effectively to
bring suit to enforce such rights. The Company and Indemnitee agree
that each of the Indemnitee-Related Entities shall be third-party
beneficiaries with respect to this Section 9(b), entitled to
enforce this Section
9(b) as though each such Indemnitee-Related Entity were a
party to this Agreement. For purposes of this Section 9(b), the following
terms shall have the following meanings:
(i) The
term “Indemnitee-Related
Entities” means any corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan
or other enterprise (other than the Company or the insurer under
and pursuant to an insurance policy of the Company) from whom an
Indemnitee may be entitled to indemnification or advancement of
Expenses with respect to which,
in whole or in part, the Company may also have an indemnification
or advancement obligation.
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(ii) The
term “Jointly
Indemnifiable Claims” shall be broadly construed and
shall include, without limitation, any Action, Suit or Proceeding for which the
Indemnitee shall be entitled to indemnification or advancement of
Expenses from both (i) the
Company pursuant to the Indemnification Sources, on the one hand,
and (ii) any Indemnitee-Related Entity pursuant to any other
agreement between any Indemnitee-Related Entity and the Indemnitee
pursuant to which the Indemnitee is indemnified, the laws of the
jurisdiction of incorporation or organization of any
Indemnitee-Related Entity and/or the certificate of incorporation,
certificate of organization, bylaws, partnership agreement,
operating agreement, certificate of formation, certificate of
limited partnership or other organizational or governing documents
of any Indemnitee-Related Entity, on the other hand.
Section 10. Form
and Delivery of Communications. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall
be deemed to have been duly given if (a) delivered by hand, upon
receipt by the party to whom said notice or other communication
shall have been directed, (b) mailed by certified or registered
mail with postage prepaid, on the third business day after the date
on which it is so mailed, (c) mailed by reputable overnight
courier, one day after deposit with such courier and with written
verification of receipt or (d) sent by email transmission, with
receipt of oral confirmation that such transmission has been
received. Addresses for notice to
either party are shown on the signature page of this Agreement, or
as subsequently modified by written notice in accordance with the
terms of this Section 10.
Section 11. Nonexclusivity.
The provisions for indemnification and advancement of Expenses set
forth in this Agreement shall not be deemed exclusive of any other
rights which Indemnitee may have under any provision of law, in any
court in which a proceeding is brought, other agreements or
otherwise, and Indemnitee’s rights hereunder shall inure to
the benefit of his/her heirs, executors and administrators. No
amendment or alteration of the Charter or the By-Laws or any other
agreement shall adversely affect the rights provided to Indemnitee
under this Agreement.
Section 12. No Construction as
Employment Agreement; Duration of Agreement. Nothing
contained herein shall be construed as giving Indemnitee any right
to be retained as a director [or executive officer] of the Company
or in the employ of the Company. For the avoidance of doubt, the
indemnification and advancement of Expenses provided under this
Agreement shall continue as to the Indemnitee even though he/she
may have ceased to be a director [or executive officer] of the
Company.
Section 13. Interpretation of
Agreement. It is understood that the parties intend this
Agreement to be interpreted and enforced so as to provide
indemnification to Indemnitee to the fullest extent now or
hereafter permitted by the DGCL, notwithstanding that such
indemnification may not be specifically authorized by the Charter
or the Bylaws, or by statute as of the date hereof. In the event of
any change after the date of this Agreement in any applicable law,
statute or rule which expands the right of a Delaware corporation
to indemnify a member of its board of directors or an executive
officer, it is the intent of the parties that Indemnitee shall
enjoy by this Agreement the greater benefits afforded by such
change. In the event of any change in any applicable law, statute
or rule which narrows the right of a Delaware corporation to
indemnify a member of its board of directors or an executive
officer, such change, to the extent not otherwise required by such
law, statute or rule to be applied to this Agreement, shall have no
effect on this Agreement or the parties’ rights and
obligations hereunder.
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Section 14. Entire
Agreement. Without limiting any of the rights of Indemnitee
under the Charter or the Bylaws, this Agreement and the documents
expressly referred to herein constitute the entire agreement
between the parties with respect to the matters covered hereby, and
any other prior or contemporaneous oral or written understandings
or agreements with respect to the matters covered hereby are
expressly superseded by this Agreement.
Section 15. Modification and
Waiver. No supplement, modification, waiver or amendment of
this Agreement shall be binding unless executed in writing by both
parties. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver. For the avoidance of doubt, this Agreement may
not be terminated by the Company without Indemnitee’s prior
written consent.
Section 16. Successor and
Assigns. All of the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be
enforceable by the parties and their respective successors,
assigns, spouses, heirs, executors, administrators and legal
representatives. The Company shall require and cause any direct or
indirect successor (whether by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of
the Company, by written agreement in form and substance reasonably
satisfactory to Indemnitee, 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.
Section 17. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware. If a court of
competent jurisdiction shall make a final determination that the
provisions of the law of any state other than Delaware govern
indemnification by the Company of Indemnitee, then the
indemnification provided under this Agreement shall in all
instances be enforceable to the fullest extent permitted under such
law, notwithstanding any provision of this Agreement to the
contrary.
Section 18. Service of Process
and Venue. The Company and Indemnitee hereby irrevocably and
unconditionally (i) agree that any action or proceeding arising out
of or in connection with this Agreement shall be brought only in
the Chancery Court of the State of Delaware (the
“Delaware
Court”), and not in any other state or federal court
in the United States of America or any court in any other country,
(ii) consent to submit to the exclusive jurisdiction of the
Delaware Court for purposes of any action or proceeding arising out
of or in connection with this Agreement, (iii) waive any objection
to the laying of venue of any such action or proceeding in the
Delaware Court, and (iv) waive, and agree not to plead or to make,
any claim that any such action or proceeding brought in the
Delaware Court has been brought in an improper or inconvenient
forum.
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Section 19. Injunctive
Relief. The parties agree that each party may enforce this
Agreement by seeking specific performance, without any necessity of
showing irreparable harm or posting a bond, which requirements are
hereby waived, and that by seeking specific performance, Indemnitee
shall not be precluded from seeking or obtaining any other relief
to which he or she may be entitled.
Section 20. Partial
Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for
some or a portion of loss and liability suffered and Expenses
(including attorneys’ fees), Judgments, Fines and Amounts
Paid in Settlement actually and reasonably incurred by or on behalf
of Indemnitee in connection with an Action, Suit or Proceeding, including any
appeals, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion of
such amounts otherwise payable hereunder.
Section 21. Mutual
Acknowledgement. Both the Company and Indemnitee acknowledge
that in certain instances, federal law or applicable public policy
may prohibit the Company from indemnifying its directors and
officers under this Agreement or otherwise. Indemnitee understands
and acknowledges that the Company may be required to submit the
question of indemnification to a court in certain circumstances for
a determination of the Company’s right, under public policy,
to indemnify Indemnitee.
Section 22. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and both of which together
shall be deemed to be one and the same instrument, notwithstanding
that both parties are not signatories to the original or same
counterpart.
Section 23. Headings.
The section and subsection headings contained in this Agreement are
for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
[Signature
Page Follows]
10
This
Agreement has been duly executed and delivered as of the date
stated above.
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By:
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Name:
Xxxxx X. Xxxxxxxx, Xx.
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Title:
EVP and General Counsel
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Address:
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000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
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General
Counsel
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Email:
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xxxxx@xxxxxxxxxxxxx.xxx
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INDEMNITEE
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Address:
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Email:
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[Signature Page to Indemnification Agreement]
