Exhibit 10.1
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this "Agreement") dated as of November 8,
2006 is made by and between CoActive Marketing Group, Inc. a Delaware
corporation (the "Company"), and ______________________ ("Indemnitee").
R E C I T A L S:
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A. The Company desires to attract and retain the services of
highly qualified individuals as directors, officers, employees and agents.
B. The Company's bylaws (the "Bylaws") require that the Company
indemnify its directors, and empowers the Company to indemnify its officers,
employees and agents, as authorized by the Delaware General Corporation Law, as
amended (the "Code"), under which the Company is organized and such Bylaws
expressly provide that the indemnification provided therein is not exclusive and
contemplates that the Company may enter into separate agreements with its
directors, officers and other persons to set forth specific indemnification
provisions.
C. Indemnitee does not regard the protection currently provided
by applicable law, the Company's governing documents and available insurance as
adequate under the present circumstances, and the Company has determined that
Indemnitee and other directors, officers, employees and agents of the Company
may not be willing to serve or continue to serve in such capacities without
additional protection.
D. The Company desires and has requested Indemnitee to serve or
continue to serve as a director, officer, employee or agent of the Company, as
the case may be, and has preferred this Agreement to Indemnitee as an additional
inducement to serve in such capacity.
E. Indemnitee is willing to serve, or to continue to serve, as a
director, officer, employee or agent of the Company, as the case may be, if
Indemnitee is furnished the indemnity provided for herein by the Company.
A G R E E M E N T :
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NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Definitions.
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(a) Agent. For purposes of this Agreement, the term
"agent" of the Company means any person who: (i) is or was a director, officer,
employee or other fiduciary of the Company or a subsidiary of the Company; or
(ii) is or was serving at the request or for the convenience of, or representing
the interests of, the Company or a subsidiary of the Company, as a director,
officer, employee or other fiduciary of a foreign or domestic corporation,
partnership, joint venture, trust or other enterprise.
(b) Change in Control. For purposes of this Agreement,
the term "Change in Control" means:
(i) the consummation of any consolidation or merger
of the Company into or with another corporation or other legal
person, and as a result of such consolidation or merger less
than a majority of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate
by holders of Voting Stock (as defined below) of the Company
immediately prior to such transaction;
(ii) any sale, lease, exchange, or other transfer,
whether in one transaction or any series of related
transactions, of all or significant portions of the assets of
the Company to any other corporation or other legal persons,
less than a majority of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such sale, lease, exchange, or transfer is
held in the aggregate by the holders of Voting Stock of the
Company immediately prior to such sale, lease, exchange, or
transfers;
(iii) the stockholders of the Company approve any
plan for the liquidation or dissolution of the Company;
(iv) any person (as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) other than an existing director
of the Company becomes, either directly or indirectly, the
beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act) of securities representing more than 33% of the
combined voting power of the then-outstanding securities
entitled to vote generally in the election of directors of the
Company ("Voting Stock"); or
(v) if at any time during a fiscal year a majority of
the Board of Directors are replaced by persons who were not
recommended for those positions by at least two-thirds of the
directors of the Company who were directors of the Company at
the beginning of the fiscal year.
(c) Expenses. For purposes of this Agreement, 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', witness, or other professional fees and related
disbursements, and other out-of-pocket costs of whatever nature), actually and
reasonably incurred by Indemnitee in connection with the investigation, defense
or appeal of a proceeding or establishing or enforcing a right to
indemnification under this Agreement, the Code or otherwise, and amounts paid in
settlement by or on behalf of Indemnitee, but shall not include any judgments,
fines or penalties actually levied against Indemnitee for such individual's
violations of law. The term "expenses" shall also include reasonable
compensation for time spent by Indemnitee for which he is not compensated by the
Company or any subsidiary or third party (i) for any period during which
Indemnitee is not an agent, in the employment of, or providing services for
compensation to, the Company or any subsidiary; and (ii) if the rate of
compensation and estimated time involved is approved by the directors of the
Company who are not parties to any action with respect to which expenses are
incurred, for Indemnitee while an agent of, employed by, or providing services
for compensation to, the Company or any subsidiary.
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(d) Proceedings. For purposes of this Agreement, the term
"proceeding" shall be broadly construed and shall include, without limitation,
any threatened, pending, or completed action, suit, arbitration, alternate
dispute resolution mechanism, investigation, inquiry, administrative hearing or
any other actual, threatened or completed proceeding, whether brought in the
right of the Company or otherwise and whether of a civil, criminal,
administrative or investigative nature, and whether formal or informal in any
case, in which Indemnitee was, is or will be involved as a party or otherwise by
reason of: (i) the fact that Indemnitee is or was a director or officer of the
Company; (ii) the fact that any action taken by Indemnitee or of any action on
Indemnitee's part while acting as director, officer, employee or agent of the
Company; or (iii) the fact that Indemnitee is or was serving at the request of
the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
and in any such case described above, whether or not serving in any such
capacity at the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses may be provided under
this Agreement.
(e) Subsidiary. For purposes of this Agreement, the term
"subsidiary" means any corporation or limited liability company of which more
than 50% of the outstanding voting securities or equity interests are owned,
directly or indirectly, by the Company and one or more of its subsidiaries, and
any other corporation, limited liability company, partnership, joint venture,
trust, employee benefit plan or other enterprise of which Indemnitee is or was
serving at the request of the Company as a director, officer, employee, agent or
fiduciary.
(f) Independent Counsel. For purposes of this Agreement,
the term "independent counsel" means a law firm, or a partner (or, if
applicable, member) of such a law firm, that is experienced in matters of
corporation law and neither presently is, nor in the past five (5) years has
been, retained to represent: (i) the Company or Indemnitee in any matter
material to either such party, or (ii) any other party to the proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing,
the term "independent counsel" 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.
2. Agreement to Serve. Indemnitee will serve, or continue to
serve, as a director, officer, employee or agent of the Company or any
subsidiary, as the case may be, faithfully and to the best of his or her
ability, at the will of such corporation (or under separate agreement, if such
agreement exists), in the capacity Indemnitee currently serves as an agent of
such corporation, so long as Indemnitee is duly appointed or elected and
qualified in accordance with the applicable provisions of the bylaws or other
applicable charter documents of such corporation, or until such time as
Indemnitee tenders his or her resignation in writing; provided, however, that
nothing contained in this Agreement is intended as an employment agreement
between Indemnitee and the Company or any of its subsidiaries or to create any
right to continued employment of Indemnitee with the Company or any of its
subsidiaries in any capacity.
The Company acknowledges that it has entered into this Agreement and
assumes the obligations imposed on it hereby, in addition to and separate from
its obligations to Indemnitee under the Bylaws, to induce Indemnitee to serve,
or continue to serve, as a director, officer, employee or agent of the Company,
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and the Company acknowledges that Indemnitee is relying upon this Agreement in
serving as a director, officer, employee or agent of the Company.
3. Indemnification.
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(a) Indemnification in Third Party Proceedings. Subject
to Section 10 below, the Company shall indemnify Indemnitee to the fullest
extent permitted by the Code, as the same may be amended from time to time (but,
only to the extent that such amendment permits Indemnitee to broader
indemnification rights than the Code permitted prior to adoption of such
amendment), if Indemnitee is a party to or threatened to be made a party to or
otherwise involved in any proceeding, for any and all expenses, actually and
reasonably incurred by Indemnitee in connection with the investigation, defense,
settlement or appeal of such proceeding.
(b) Indemnification in Derivative Actions and Direct
Actions by the Company. Subject to Section 10 below, the Company shall indemnify
Indemnitee to the fullest extent permitted by the Code, as the same may be
amended from time to time (but, only to the extent that such amendment permits
Indemnitee to broader indemnification rights than the Code permitted prior to
adoption of such amendment), if Indemnitee is a party to or threatened to be
made a party to or otherwise involved in any proceeding by or in the right of
the Company to procure a judgment in its favor, against any and all expenses
actually and reasonably incurred by Indemnitee in connection with the
investigation, defense, settlement, or appeal of such proceedings.
4. Indemnification of Expenses of Successful Party.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
proceeding or in defense of any claim, issue or matter therein, including the
dismissal of any action without prejudice, the Company shall indemnify
Indemnitee against all expenses actually and reasonably incurred in connection
with the investigation, defense or appeal of such proceeding.
5. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any expenses actually and reasonably incurred by Indemnitee in the
investigation, defense, settlement or appeal of a proceeding, but is precluded
by applicable law or the specific terms of this Agreement to indemnification for
the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.
6. Advancement of Expenses. To the extent not prohibited by law,
the Company shall advance the expenses incurred by Indemnitee in connection with
any proceeding, and such advancement shall be made within twenty (20) days after
the receipt by the Company of a statement or statements requesting such advances
(which shall include invoices received by Indemnitee in connection with such
expenses but, in the case of invoices in connection with legal services, any
references to legal work performed or to expenditures made that would cause
Indemnitee to waive any privilege accorded by applicable law shall not be
included with the invoice) and upon request of the Company, an undertaking to
repay the advancement of expenses if and to the extent that it is ultimately
determined by a court of competent jurisdiction in a final judgment, not subject
to appeal, that Indemnitee is not entitled to be indemnified by the Company.
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Advances shall be unsecured, interest free and without regard to Indemnitee's
ability to repay the expenses. Advances shall include any and all expenses
actually and reasonably incurred by Indemnitee pursuing an action to enforce
Indemnitee's right to indemnification under this Agreement, or otherwise and
this right of advancement, including expenses incurred preparing and forwarding
statements to the Company to support the advances claimed. Indemnitee
acknowledges that the execution and delivery of this Agreement shall constitute
an undertaking providing that Indemnitee shall, to the fullest extent required
by law, repay the advance if and to the extent that it is ultimately determined
by a court of competent jurisdiction in a final judgment, not subject to appeal,
that Indemnitee is not entitled to be indemnified by the Company. The right to
advances under this Section shall continue until final disposition of any
proceeding, including any appeal therein. This Section 6 shall not apply to any
claim made by Indemnitee for which indemnity is excluded pursuant to Section
10(b).
7. Notice and Other Indemnification Procedures.
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(a) Notification of Proceeding. Indemnitee will notify
the Company in writing promptly upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
proceeding or matter which may be subject to indemnification or advancement of
expenses covered hereunder. The failure of Indemnitee to so notify the Company
shall not relieve the Company of any obligation which it may have to Indemnitee
under this Agreement or otherwise.
(b) Request for Indemnification and Indemnification
Payments. Indemnitee shall notify the Company promptly in writing upon receiving
notice of any demand, judgment or other requirement for payment that Indemnitee
reasonably believes to the subject to indemnification under the terms of this
Agreement, and shall request payment thereof by the Company. Indemnification
payments requested by Indemnitee under Section 3 hereof shall be made by the
Company no later than thirty (30) days after receipt of the written request of
Indemnitee. Claims for advancement of expenses shall be made under the
provisions of Section 6 herein.
(c) Application for Enforcement. In the event the Company
fails to make timely payments as set forth in Sections 6 or 7(b) above,
Indemnitee shall have the right to apply to any court of competent jurisdiction
for the purpose of enforcing Indemnitee's right to indemnification or
advancement of expenses pursuant to this Agreement. In such an enforcement
hearing or proceeding, the burden of proof shall be on the Company to prove that
indemnification or advancement of expenses to Indemnitee is not required under
this Agreement or permitted by applicable law. Any determination by the Company
(including its Board of Directors, stockholders or independent counsel) that
Indemnitee is not entitled to indemnification hereunder, shall not be a defense
by the Company to the action nor create any presumption that Indemnitee is not
entitled to indemnification or advancement of expenses hereunder.
(d) Indemnification of Certain Expenses. Indemnitee shall
be entitled to be paid for all expenses (including attorneys' fees) in
connection with any hearing or proceeding under this Section 7 to enforce its
rights to indemnification hereunder, and the Company shall indemnify Indemnitee
against all expenses incurred in connection with any such hearing or proceeding
under this Section 7 unless the Company prevails in such hearing or proceeding
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on the merits in all material respects. In addition, in connection with any
hearing or proceeding under this Section 7 to enforce its rights to
indemnification hereunder, Indemnitee shall be entitled to receive advances of
expenses pursuant to Section 6 unless and until such defense may be finally
adjudicated by court order or judgment from which no further right of appeal
exists.
8. Assumption of Defense. In the event the Company shall be
requested by Indemnitee to pay the expenses of any proceeding, the Company, if
appropriate, shall be entitled to assume the defense of such proceeding, or to
participate to the extent permissible in such proceeding, with counsel
reasonably acceptable to Indemnitee. Upon assumption of the defense by the
Company and the retention of such counsel by the Company, the Company shall not
be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same proceeding,
provided that Indemnitee shall have the right to employ separate counsel in such
proceeding at Indemnitee's sole cost and expense. Notwithstanding the foregoing,
at Indemnitee's request following a Change of Control, or if Indemnitee's
counsel delivers a written notice to the Company stating that such counsel has
reasonably concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of any such defense or the Company shall
not, in fact, have employed counsel or otherwise actively pursued the defense of
such proceeding within a reasonable time, then in any such event the fees and
expenses of Indemnitee's counsel to defend such proceeding shall be subject to
the indemnification and advancement of expenses provisions of this Agreement.
9. Insurance.
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(a) Existing Coverage. To the extent that the Company
maintains an insurance policy or policies providing liability insurance for
directors, officers, employees, or agents of the Company or of any subsidiary
("D&O Insurance"), Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage
available for any such director, officer, employee or agent under such policy or
policies. If, at the time of the receipt of a notice of a claim pursuant to the
terms hereof, the Company has D&O Insurance in effect, the Company shall give
prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company
shall thereafter take all necessary or desirable action to cause such insurers
to pay, on behalf of Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such policies.
(b) Tail Coverage. For a period of no less than five
years following the consummation of a Change in Control which results in the
termination of Indemnitee's service to the Company as a director or officer, the
Company and/or the successor company resulting from such Change of Control,
shall use its reasonable best efforts to cause to be maintained in effect the
Company's then current D&O Insurance providing Indemnitee with coverage with
respect to claims arising from facts or events occurring prior to the effective
time of such Change of Control.
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10. Exceptions.
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(a) Certain Matters. Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify Indemnitee on account of any proceeding with respect
to (i) remuneration paid to Indemnitee if it is determined by final judgment or
other final adjudication that such remuneration was in violation of law (and, in
this respect, both the Company and Indemnitee have been advised that the
Securities and Exchange Commission believes that indemnification for liabilities
arising under the federal securities laws is against public policy and is,
therefore, unenforceable and that claims for indemnification should be submitted
to appropriate courts for adjudication, as indicated in Section 10(d) below);
(ii) a final judgment rendered against Indemnitee for an accounting,
disgorgement or repayment of profits made from the purchase or sale by
Indemnitee of securities of the Company against Indemnitee or in connection with
a settlement by or on behalf of Indemnitee to the extent it is acknowledged by
Indemnitee and the Company that such amount paid in settlement resulted from
Indemnitee's conduct from which Indemnitee received monetary personal profit,
pursuant to the provisions of Section 16(b) of the Securities Exchange Act of
1934, as amended, or other provisions of any federal, state or local statute or
rules and regulations thereunder; (iii) a final judgment or other final
adjudication that Indemnitee's conduct was in bad faith, knowingly fraudulent or
deliberately dishonest or constituted willful misconduct (but only to the extent
of such specific determination); or (iv) on account of conduct that is
established by a final judgment as constituting a breach of Indemnitee's duty of
loyalty to the Company or resulting in any personal profit or advantage to which
Indemnitee is not legally entitled. For purposes of the foregoing sentence, a
final judgment or other adjudication may be reached in either the underlying
proceeding or action in connection with which indemnification is sought or a
separate proceeding or action to establish rights and liabilities under this
Agreement.
(b) Claims Initiated by Indemnitee. Any provision herein
to the contrary notwithstanding, the Company shall not be obligated to indemnify
or advance expenses to Indemnitee with respect to proceedings or claims
initiated or brought by Indemnitee against the Company or its directors,
officers, employees or other agents and not by way of defense, except (i) with
respect to proceedings brought to establish or enforce a right to
indemnification under this Agreement or under any other agreement, provision in
the Bylaws or Certificate of Incorporation or applicable law, or (ii) with
respect to any other proceeding initiated by Indemnitee that is either approved
by the Board of Directors or in which Indemnitee's participation is required by
applicable law. However, indemnification or advancement of expenses may be
provided by the Company in specific cases if the Board of Directors determines
it to be appropriate.
(c) Unauthorized Settlements. Any provision herein to the
contrary notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement to indemnify Indemnitee under this Agreement for any
amounts paid in settlement of a proceeding effected without the Company's
written consent. Neither the Company nor Indemnitee shall unreasonably withhold
consent to any proposed settlement; provided, however, that the Company may in
any event decline to consent to (or to otherwise admit or agree to any liability
for indemnification hereunder in respect of) any proposed settlement if the
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Company is also a party in such proceeding and determines in good faith that
such settlement is not in the best interests of the Company and its
stockholders.
(d) Securities Act Liabilities. Any provision herein to
the contrary notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement to indemnify Indemnitee or otherwise act in violation of
any undertaking appearing in and required by the rules and regulations
promulgated under the Securities Act of 1933, as amended (the "Act"), or in any
registration statement filed with the SEC under the Act. Indemnitee acknowledges
that paragraph (h) of Item 512 of Regulation S-K currently generally requires
the Company to undertake in connection with any registration statement filed
under the Act to submit the issue of the enforceability of Indemnitee's rights
under this Agreement in connection with any liability under the Act on public
policy grounds to a court of appropriate jurisdiction and to be governed by any
final adjudication of such issue. Indemnitee specifically agrees that any such
undertaking shall supersede the provisions of this Agreement and to be bound by
any such undertaking. A determination that Indemnitee is not entitled to
indemnification pursuant to this Section 10(d) may be made by the Company upon
receipt of a written opinion from Independent Counsel, a copy of which opinion
shall be delivered to the Indemnitee. In the event Indemnitee disputes such
opinion, Indemnitee shall in any event be entitled to seek enforcement of its
rights hereunder pursuant to Section 7(c), and Indemnitee shall be indemnified
in connection with costs in seeking such enforcement pursuant to Section 7(d).
11. Nonexclusivity and Survival of Rights. 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 at any time be
entitled under any provision of applicable law, the Company's Certificate of
Incorporation, Bylaws or other agreements, both as to action in Indemnitee's
official capacity and Indemnitee's action as an agent of the Company, in any
court in which a proceeding is brought, and Indemnitee's rights hereunder shall
continue after Indemnitee has ceased acting as an agent of the Company and shall
inure to the benefit of the heirs, executors, administrators and assigns of
Indemnitee. The obligations and duties of the Company to Indemnitee under this
Agreement shall be binding on the Company and its successors and assigns until
terminated in accordance with its terms. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company, 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.
No amendment, alteration or repeal of this Agreement or of any
provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee in his or
her corporate status prior to such amendment, alteration or repeal. To the
extent that a change in the Code, whether by statute or judicial decision,
permits greater indemnification or advancement of expenses than would be
afforded currently under the Company's Certificate of Incorporation, Bylaws and
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. No
right or remedy herein conferred is intended to be exclusive of any other right
or remedy, and every other right and remedy shall be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, by Indemnitee shall not prevent the concurrent
assertion or employment of any other right or remedy by Indemnitee.
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12. Term. This Agreement shall continue until and terminate upon
the later of: (a) ten (10) years after the date that Indemnitee shall have
ceased to serve as a director or and/or officer, employee or agent of the
Company; or (b) one (1) year after the final termination of any proceeding,
including any appeal then pending, in respect to which Indemnitee was granted
rights of indemnification or advancement of expenses hereunder.
No legal action shall be brought and no cause of action shall
be asserted by or in the right of the Company against an Indemnitee or an
Indemnitee's estate, spouse, heirs, executors or personal or legal
representatives after the expiration of ten (10) 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 five-year period; provided, however, that if any
shorter period of limitations is otherwise applicable to such cause of action,
such shorter period shall govern.
13. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who, at the request and expense of the Company, shall
execute all papers 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.
14. Interpretation of Agreement. It is understood that the parties
hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to Indemnitee to the fullest extent now or hereafter permitted
by law.
15. Severability. If any provision of this Agreement shall be held
to be invalid, illegal or unenforceable for any reason whatsoever, (a) the
validity, legality and enforceability of the remaining provisions of the
Agreement (including without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby; and (b) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable and to give
effect to Section 14 hereof.
16. Amendment and Waiver. No supplement, modification, amendment,
or cancellation of this Agreement shall be binding unless executed in writing by
the parties hereto. 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.
17. Notice. Except as otherwise provided herein, any notice or
demand which, by the provisions hereof, is required or which may be given to or
served upon the parties hereto shall be in writing and, if by telegram, telecopy
or telex, shall be deemed to have been validly served, given or delivered when
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sent, if by overnight delivery, courier or personal delivery, shall be deemed to
have been validly served, given or delivered upon actual delivery and, if
mailed, shall be deemed to have been validly served, given or delivered three
(3) business days after deposit in the United States mail, as registered or
certified mail, with proper postage prepaid and addressed to the party or
parties to be notified at the addresses set forth on the signature page of this
Agreement (or such other address(es) as a party may designate for itself by like
notice). If to the Company, notices and demands shall be delivered to the
attention of the Secretary of the Company.
18. Governing Law. Subject to the applicable provisions of the
Code, this Agreement shall be governed exclusively by and construed according to
the laws of the State of New York, as applied to contracts between New York
residents entered into and to be performed entirely within New York.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute but one and the same Agreement. Only
one such counterpart need be produced to evidence the existence of this
Agreement.
20. Headings. The headings of the sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction hereof.
21. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings and negotiations, written and
oral, between the parties with respect to the subject matter of this Agreement;
provided, however, that this Agreement is a supplement to and in furtherance of
the Company's Certificate of Incorporation, Bylaws, the Code and any other
applicable law, and shall not be deemed a substitute therefor, and does not
diminish or abrogate any rights of Indemnitee thereunder.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
effective as of the date first above written.
COACTIVE MARKETING GROUP, INC.
Address
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00 Xxxxx Xxxxxx By: _________________________________
Xxx Xxxx, XX 00000 Name: ___________________________
Title: __________________________
____________________ _____________________________________
____________________ Signature of Indemnitee
_____________________________________
Print or Type Name of Indemnitee
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