ADEX MEDIA, INC. FORM OF DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
Exhibit
10.1
This
Director and Officer Indemnification Agreement, dated as of May 13, 2008 (this
“Agreement”),
is made by and between Adex Media, Inc., a Delaware corporation (the “Company”),
and _______________ (the “Indemnitee”).
RECITALS:
A. Section 141 of the Delaware General
Corporation Law provides that the business and affairs of a corporation shall be
managed by or under the direction of its board of directors.
B. By virtue of the managerial
prerogatives vested in the directors and officers of a Delaware corporation,
directors and officers act as fiduciaries of the corporation and its
stockholders.
C. Thus, it is critically important to the
Company and its stockholders that the Company be able to attract and retain the
most capable persons reasonably available to serve as directors and officers of
the Company.
D. In recognition of the need for
corporations to be able to induce capable and responsible persons to accept
positions in corporate management, Delaware law authorizes (and in some
instances requires) corporations to indemnify their directors and officers, and
further authorizes corporations to purchase and maintain insurance for the
benefit of their directors and officers.
E. The Delaware courts have recognized
that indemnification by a corporation serves the dual policies of (1) allowing
corporate officials to resist unjustified lawsuits, secure in the knowledge
that, if vindicated, the corporation will bear the expense of litigation, and
(2) encouraging capable women and men to serve as corporate directors and
officers, secure in the knowledge that the corporation will absorb the costs of
defending their honesty and integrity.
F. The number of lawsuits challenging the
judgment and actions of directors and officers of Delaware corporations, the
costs of defending those lawsuits and the threat to personal assets have all
materially increased over the past several years, chilling the willingness of
capable women and men to undertake the responsibilities imposed on corporate
directors and officers.
G. Recent federal legislation and rules
adopted by the Securities and Exchange Commission and the national securities
exchanges have exposed such directors and officers to new and substantially
broadened civil liabilities.
H. Under Delaware law, a director’s or
officer’s right to be reimbursed for the costs of defense of criminal actions,
whether such claims are asserted under state or federal law, does not depend
upon the merits of the claims asserted against the director or officer and is
separate and distinct from any right to indemnification the director may be able
to establish.
I. Indemnitee is, or will be, a director
and/or officer of the Company and his or her willingness to serve in such
capacity is predicated, in substantial part, upon the Company’s willingness to
indemnify him or her in accordance with the principles reflected above, to the
fullest extent permitted by the laws of the State of Delaware, and upon the
other undertakings set forth in this Agreement.
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J. Therefore, in recognition of the need
to provide Indemnitee with substantial protection against personal liability, in
order to procure Indemnitee’s continued service as a director and/or officer of
the Company and to enhance Indemnitee’s ability to serve the Company in an
effective manner, and in order to provide such protection pursuant to express
contract rights (intended to be enforceable irrespective of, among other things,
any amendment to the Company’s certificate of incorporation or bylaws
(collectively, the “Constituent
Documents”), any change in
the composition of the Company’s Board of Directors (the “Board”) or any change-in-control or business
combination transaction relating to the Company), the Company wishes to provide
in this Agreement for the indemnification and advancement of Expenses to
Indemnitee on the terms, and subject to the conditions, set forth in this
Agreement.
K. In light of the considerations referred
to in the preceding recitals, it is the Company’s intention and desire that the
provisions of this Agreement be construed liberally, subject to their express
terms, to maximize the protections to be provided to Indemnitee
hereunder.
AGREEMENT:
NOW,
THEREFORE, the parties hereby agree as follows:
1. Certain
Definitions. In addition
to terms defined elsewhere herein, the following terms have the following
meanings when used in this Agreement with initial capital
letters:
“Change in
Control” shall have occurred at such time, if any, as Incumbent Directors
cease for any reason to constitute a majority of Directors. For purposes of this
Section 1(a), “Incumbent
Directors” means the individuals who, as of the date hereof, are
Directors of the Company and any individual becoming a Director subsequent to
the date hereof whose election, nomination for election by the Company’s
stockholders, or appointment, was approved by a vote of at least a majority of
the then Incumbent Directors (either by a specific vote or by approval of the
proxy statement of the Company in which such person is named as a nominee for
director, without objection to such nomination); provided, however, that an
individual shall not be an Incumbent Director if such individual’s election or
appointment to the Board occurs as a result of an actual or threatened election
contest (as described in Rule 14a-12(c) of the Securities Exchange Act of 1934,
as amended) with respect to the election or removal of directors or other actual
or threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board.
“Claim”
means (i) any threatened, asserted, pending or completed claim, demand, action,
suit or proceeding, whether civil, criminal, administrative, arbitrative,
investigative or other, and whether made pursuant to federal, state or other
law; and (ii) any inquiry or investigation, whether made, instituted or
conducted by the Company or any other Person, including, without limitation, any
federal, state or other governmental entity, that Indemnitee reasonably
determines might lead to the institution of any such claim, demand, action, suit
or proceeding. For the avoidance of doubt, the Company intends indemnity to be
provided hereunder in respect of acts or failure to act prior to, on or after
the date hereof.
“Controlled
Affiliate” means any corporation, limited liability company, partnership,
joint venture, trust or other entity or enterprise, whether or not for profit,
that is directly or indirectly controlled by the Company. For purposes of this
definition, “control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of an entity or enterprise, whether
through the ownership of voting securities, through other voting rights, by
contract or otherwise; provided that direct or
indirect beneficial ownership of capital stock or other interests in an entity
or enterprise entitling the holder to cast 15% or more of the total number of
votes generally entitled to be cast in the election of directors (or persons
performing comparable functions) of such entity or enterprise shall be deemed to
constitute control for purposes of this definition.
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“Disinterested
Director” means a director of the Company who is not and was not a party
to the Claim in respect of which indemnification is sought by
Indemnitee.
“Expenses”
means attorneys’ and experts’ fees and expenses and all other costs and expenses
paid or payable in connection with investigating, defending, being a witness in
or participating in (including on appeal), or preparing to investigate, defend,
be a witness in or participate in (including on appeal), any Claim.
“Indemnifiable
Claim” means any Claim based upon, arising out of or resulting from (i)
any actual, alleged or suspected act or failure to act by Indemnitee in his or
her capacity as a director, officer, employee or agent of the Company or as a
director, officer, employee, member, manager, trustee or agent of any other
corporation, limited liability company, partnership, joint venture, trust or
other entity or enterprise, whether or not for profit, as to which Indemnitee is
or was serving at the request of the Company, (ii) any actual, alleged or
suspected act or failure to act by Indemnitee in respect of any business,
transaction, communication, filing, disclosure or other activity of the Company
or any other entity or enterprise referred to in clause (i) of this sentence, or
(iii) Indemnitee’s status as a current or former director, officer, employee or
agent of the Company or as a current or former director, officer, employee,
member, manager, trustee or agent of the Company or any other entity or
enterprise referred to in clause (i) of this sentence or any actual, alleged or
suspected act or failure to act by Indemnitee in connection with any obligation
or restriction imposed upon Indemnitee by reason of such status. In addition to
any service at the actual request of the Company, for purposes of this
Agreement, Indemnitee shall be deemed to be serving or to have served at the
request of the Company as a director, officer, employee, member, manager,
trustee or agent of another entity or enterprise if Indemnitee is or was serving
as a director, officer, employee, member, manager, agent, trustee or other
fiduciary of such entity or enterprise and (i) such entity or enterprise is or
at the time of such service was a Controlled Affiliate, (ii) such entity or
enterprise is or at the time of such service was an employee benefit plan (or
related trust) sponsored or maintained by the Company or a Controlled Affiliate,
or (iii) the Company or a Controlled Affiliate (by action of the Board, any
committee thereof or the Company’s Chief Executive Officer (“CEO”) (other than
as the CEO him or herself)) caused or authorized Indemnitee to be nominated,
elected, appointed, designated, employed, engaged or selected to serve in such
capacity.
“Indemnifiable
Losses” means any and all Losses relating to, arising out of or resulting
from any Indemnifiable Claim; provided, however, that
Indemnifiable Losses shall not include Losses incurred by Indemnitee in respect
of any Indemnifiable Claim (or any matter or issue therein) as to which
Indemnitee shall have been adjudged liable to the Company, unless and only to
the extent that the Delaware Court of Chancery or the court in which such
Indemnifiable Claim was brought shall have determined upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, Indemnitee is fairly and reasonably entitled to indemnification for
such Expenses as the court shall deem proper.
“Independent
Counsel” means a nationally recognized law firm, or a member of a
nationally recognized law firm, that is experienced in matters of Delaware
corporate law and neither presently is, nor in the past five years has been,
retained to represent: (i) the Company (or any subsidiary) or Indemnitee in any
matter material to either such party (other than with respect to matters
concerning the Indemnitee under this Agreement, or of other indemnitees under
similar indemnification agreements) or (ii) any other named (or, as to a
threatened matter, reasonably likely to be named) party to the Indemnifiable
Claim giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee’s rights under this Agreement.
“Losses”
means any and all Expenses, damages, losses, liabilities, judgments, fines,
penalties (whether civil, criminal or other) and amounts paid or payable in
settlement, including, without limitation, all interest, assessments and other
charges paid or payable in connection with or in respect of any of the
foregoing.
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“Person”
means any individual, entity or group, within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended.
“Standard of
Conduct” means the standard for conduct by Indemnitee that is a condition
precedent to indemnification of Indemnitee hereunder against Indemnifiable
Losses relating to, arising out of or resulting from an Indemnifiable Claim. The
Standard of Conduct is (i) good faith and a reasonable belief by Indemnitee that
his action was in or not opposed to the best interests of the Company and, with
respect to any criminal action or proceeding, that Indemnitee had no reasonable
cause to believe that his conduct was unlawful, or (ii) any other applicable
standard of conduct that may hereafter be substituted under Section 145(a) or
(b) of the Delaware General Corporation Law or any successor to such
provision(s).
2. Indemnification
Obligation. Subject only
to Section 7 and to the proviso in this Section, the Company shall indemnify,
defend and hold harmless Indemnitee, to the fullest extent permitted or required
by the laws of the State of Delaware in effect on the date hereof or as such
laws may from time to time hereafter be amended to increase the scope of such
permitted indemnification, against any and all Indemnifiable Claims and
Indemnifiable Losses; provided,
however, that, except as
provided in Section 5, Indemnitee shall not be entitled to indemnification
pursuant to this Agreement in connection with (i) any Claim initiated by
Indemnitee against the Company or any director or officer of the Company unless
the Company has joined in or consented to the initiation of such Claim, or (ii)
the purchase and sale by Indemnitee of securities in violation of Section 16(b)
of the Securities Exchange Act of 1934, as amended. The Company acknowledges
that the foregoing obligation may be broader than that now provided by
applicable law and the Company’s Constituent Documents and intends that it be
interpreted consistently with this Section and the recitals to this
Agreement.
3. Advancement
of Expenses. Indemnitee shall have the right to
advancement by the Company prior to the final disposition of any Indemnifiable
Claim of any and all actual and reasonable Expenses relating to, arising out of
or resulting from any Indemnifiable Claim paid or incurred by Indemnitee.
Without limiting the generality or effect of any other provision hereof,
Indemnitee’s right to such advancement is not subject to the satisfaction of any
Standard of Conduct. Without limiting the generality or effect of the foregoing,
within five business days after any request by Indemnitee that is accompanied by
supporting documentation for specific reasonable Expenses to be reimbursed or
advanced, the Company shall, in accordance with such request (but without
duplication), (a) pay such Expenses on behalf of Indemnitee, (b) advance to
Indemnitee funds in an amount sufficient to pay such Expenses, or (c) reimburse
Indemnitee for such Expenses; provided that Indemnitee shall repay, without
interest, any amounts actually advanced to Indemnitee that, at the final
disposition of the Indemnifiable Claim to which the advance related, were in
excess of amounts paid or payable by Indemnitee in respect of Expenses relating
to, arising out of or resulting from such Indemnifiable Claim. In connection
with any such payment, advancement or reimbursement, at the request of the
Company, Indemnitee shall execute and deliver to the Company an undertaking,
which need not be secured and shall be accepted without reference to
Indemnitee’s ability to repay the Expenses, by or on behalf of the Indemnitee,
to repay any amounts paid, advanced or reimbursed by the Company in respect of
Expenses relating to, arising out of or resulting from any Indemnifiable Claim
in respect of which it shall have been determined, following the final
disposition of such Indemnifiable Claim and in accordance with Section 7, that
Indemnitee is not entitled to indemnification hereunder.
4. Indemnification
for Additional Expenses. Without limiting the generality or
effect of the foregoing, the Company shall indemnify and hold harmless
Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee
for, or advance to Indemnitee, within five business days of such request
accompanied by supporting documentation for specific Expenses to be reimbursed
or advanced, any and all actual and reasonable Expenses paid or incurred by
Indemnitee in connection with any Claim made, instituted or conducted by
Indemnitee for (a) indemnification or reimbursement or advance payment of
Expenses by the Company under any provision of this Agreement, or under any
other agreement or provision of the Constituent Documents now or hereafter in
effect relating to Indemnifiable Claims, and/or (b) recovery under any
directors’ and officers’ liability insurance policies maintained by the Company;
provided,
however, if it is
ultimately determined that the Indemnitee is not entitled to such
indemnification, reimbursement, advance or insurance recovery, as the case may
be, then the Indemnitee shall be obligated to repay any such Expenses to the
Company; provided
further, that, regardless
in each case of whether Indemnitee ultimately is determined to be entitled to
such indemnification, reimbursement, advance or insurance recovery, as the case
may be, Indemnitee shall return, without interest, any such advance of Expenses
(or portion thereof) which remains unspent at the final disposition of the Claim
to which the advance related.
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5. Partial
Indemnity. If Indemnitee
is entitled under any provision of this Agreement to indemnification by the
Company for some or a portion of any Indemnifiable Loss but not for all of the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled.
6. Procedure
for Notification. To
obtain indemnification under this Agreement in respect of an Indemnifiable Claim
or Indemnifiable Loss, Indemnitee shall submit to the Company a written request
therefore, including a brief description (based upon information then available
to Indemnitee) of such Indemnifiable Claim or Indemnifiable Loss. If, at the
time of the receipt of such request, the Company has directors’ and officers’
liability insurance in effect under which coverage for such Indemnifiable Claim
or Indemnifiable Loss is potentially available, the Company shall give prompt
written notice of such Indemnifiable Claim or Indemnifiable Loss to the
applicable insurers in accordance with the procedures set forth in the
applicable policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
Indemnifiable Claims and Indemnifiable Losses in accordance with the terms of
such policies. The Company shall provide to Indemnitee a copy of such notice
delivered to the applicable insurers, substantially concurrently with the
delivery thereof by the Company. The failure by Indemnitee to timely notify the
Company of any Indemnifiable Claim or Indemnifiable Loss shall not relieve the
Company from any liability hereunder unless, and only to the extent that, the
Company did not otherwise learn of such Indemnifiable Claim or Indemnifiable
Loss and to the extent that such failure results in forfeiture by the Company of
substantial defenses, rights or insurance coverage.
7.
Determination of Right to Indemnification.
To the
extent that Indemnitee shall have been successful on the merits or otherwise in
defense of any Indemnifiable Claim or any portion thereof or in defense of any
issue or matter therein, including, without limitation, dismissal without
prejudice, Indemnitee shall be indemnified against all Indemnifiable Losses
relating to, arising out of or resulting from such Indemnifiable Claim in
accordance with Section 2 and no Standard of Conduct Determination (as defined
in Section 7(b)) shall be required.
To the
extent that the provisions of Section 7(a) are inapplicable to an Indemnifiable
Claim that shall have been finally disposed of, any determination of whether
Indemnitee has satisfied the applicable Standard of Conduct (a “Standard of
Conduct Determination”) shall be made as follows: (i) if a Change in
Control shall not have occurred, or if a Change in Control shall have occurred
but Indemnitee shall have requested that the Standard of Conduct Determination
be made pursuant to this clause (i), (A) by a majority vote of the Disinterested
Directors, even if less than a quorum of the Board, (B) if such Disinterested
Directors so direct, by a majority vote of a committee of Disinterested
Directors designated by a majority vote of all Disinterested Directors, or (C)
if there are no such Disinterested Directors, or if a majority of the
Disinterested Directors so direct, by Independent Counsel in a written opinion
addressed to the Board, a copy of which shall be delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred and Indemnitee shall not have
requested that the Standard of Conduct Determination be made pursuant to clause
(i) above, by Independent Counsel in a written opinion addressed to the Board, a
copy of which shall be delivered to Indemnitee.
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If (i)
Indemnitee shall be entitled to indemnification hereunder against any
Indemnifiable Losses pursuant to Section 7(a), (ii) no determination of whether
Indemnitee has satisfied any applicable standard of conduct under Delaware law
is a legally required condition precedent to indemnification of Indemnitee
hereunder against any Indemnifiable Losses, or (iii) Indemnitee has been
determined or deemed pursuant to Section 7(b) to have satisfied the applicable
Standard of Conduct, then the Company shall pay to Indemnitee, within five
business days after the later of (x) the Notification Date in respect of the
Indemnifiable Claim or portion thereof to which such Indemnifiable Losses are
related, out of which such Indemnifiable Losses arose or from which such
Indemnifiable Losses resulted, and (y) the earliest date on which the applicable
criterion specified in clause (i), (ii) or (iii) above shall have been
satisfied, an amount equal to the amount of such Indemnifiable Losses. Nothing
herein is intended to mean or imply that the Company is intending to use Section
145(f) of the Delaware General Corporation Law to dispense with a requirement
that Indemnitee meet the applicable Standard of Conduct where it is otherwise
required by such statute.
If a
Standard of Conduct Determination is required to be, but has not been, made by
Independent Counsel pursuant to Section 7(b)(i), the Independent Counsel shall
be selected by the Board or a committee of the Board, and the Company shall give
written notice to Indemnitee advising him or her of the identity of the
Independent Counsel so selected. If a Standard of Conduct Determination is
required to be, or to have been, made by Independent Counsel pursuant to Section
7(b)(ii), the Independent Counsel shall be selected by Indemnitee, and
Indemnitee shall give written notice to the Company advising it of the identity
of the Independent Counsel so selected. In either case, Indemnitee or the
Company, as applicable, may, within five business days after receiving written
notice of selection from the other, deliver to the other a written objection to
such selection; provided,
however, that such objection may be asserted only on the ground that the
Independent Counsel so selected does not satisfy the criteria set forth in the
definition of “Independent Counsel” in Section 1(h), and the objection shall set
forth with particularity the factual basis of such assertion. Absent a proper
and timely objection, the Person so selected shall act as Independent Counsel.
If such written objection is properly and timely made and substantiated, (i) the
Independent Counsel so selected may not serve as Independent Counsel unless and
until such objection is withdrawn or a court has determined that such objection
is without merit and (ii) the non-objecting party may, at its option, select an
alternative Independent Counsel and give written notice to the other party
advising such other party of the identity of the alternative Independent Counsel
so selected, in which case the provisions of the two immediately preceding
sentences and clause (i) of this sentence shall apply to such subsequent
selection and notice. If applicable, the provisions of clause (ii) of the
immediately preceding sentence shall apply to successive alternative selections.
If no Independent Counsel that is permitted under the foregoing provisions of
this Section 7(d) to make the Standard of Conduct Determination shall have been
selected within 30 calendar days after the Company gives its initial notice
pursuant to the first sentence of this Section 7(d) or Indemnitee gives its
initial notice pursuant to the second sentence of this Section 7(d), as the case
may be, either the Company or Indemnitee may petition the Court of Chancery of
the State of Delaware for resolution of any objection which shall have been made
by the Company or Indemnitee to the other’s selection of Independent Counsel
and/or for the appointment as Independent Counsel of a person or firm selected
by the Court or by such other person as the Court shall designate, and the
person or firm with respect to whom all objections are so resolved or the person
or firm so appointed will act as Independent Counsel. In all events, the Company
shall pay all of the actual and reasonable fees and expenses of the Independent
Counsel incurred in connection with the Independent Counsel’s determination
pursuant to Section 7(b).
8. Cooperation. Indemnitee shall cooperate with
reasonable requests of the Company in connection with any Indemnifiable Claim
and any individual or firm making such Standard of Conduct Determination,
including providing to such Person documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to defend the Indemnifiable
Claim or make any Standard of Conduct Determination without incurring any
unreimbursed cost in connection therewith. The Company shall indemnify and hold
harmless Indemnitee against and, if requested by Indemnitee, shall reimburse
Indemnitee for, or advance to Indemnitee, within five business days of such
request accompanied by supporting documentation for specific costs and expenses
to be reimbursed or advanced, any and all costs and expenses (including
attorneys’ and experts’ fees and expenses) actually and reasonably incurred by
Indemnitee in so cooperating with the Person defending the Indemnifiable Claim
or making such Standard of Conduct Determination.
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9. Presumption
of Entitlement.
Notwithstanding any other provision hereof, in making any Standard of Conduct
Determination, the Person making such determination shall presume that
Indemnitee has satisfied the applicable Standard of Conduct.
10. No Other
Presumption. For purposes
of this Agreement, the termination of any Claim by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of nolo
contendere or its equivalent, will not create a presumption that Indemnitee did
not meet any applicable Standard of Conduct or that indemnification hereunder is
otherwise not permitted.
11. Non-Exclusivity. The rights of Indemnitee hereunder
will be in addition to any other rights Indemnitee may have under the
Constituent Documents, or the substantive laws of the Company’s jurisdiction of
incorporation, any other contract or otherwise (collectively, “Other
Indemnity Provisions”);
provided,
however, that (a) to the
extent that Indemnitee otherwise would have any greater right to indemnification
under any Other Indemnity Provision, Indemnitee will without further action be
deemed to have such greater right hereunder, and (b) to the extent that any
change is made to any Other Indemnity Provision which permits any greater right
to indemnification than that provided under this Agreement as of the date
hereof, Indemnitee will be deemed to have such greater right hereunder. The
Company may not, without the consent of Indemnitee, adopt any amendment to any
of the Constituent Documents the effect of which would be to deny, diminish or
encumber Indemnitee’s right to indemnification under this
Agreement.
12. Liability
Insurance and Funding. For
the duration of Indemnitee’s service as a director and/or officer of the Company
and for a reasonable period of time thereafter, which such period shall be
determined by the Company in its sole discretion, the Company shall use
commercially reasonable efforts (taking into account the scope and amount of
coverage available relative to the cost thereof) to cause to be maintained in
effect policies of directors’ and officers’ liability insurance providing
coverage for directors and/or officers of the Company, and, if applicable, that
is substantially comparable in scope and amount to that provided by the
Company’s current policies of directors’ and officers’ liability insurance. Upon
reasonable request, the Company shall provide Indemnitee or his or her counsel
with a copy of all directors’ and officers’ liability insurance applications,
binders, policies, declarations, endorsements and other related materials. In
all policies of directors’ and officers’ liability insurance obtained by the
Company, Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits, subject to the same limitations, as are
accorded to the Company’s directors and officers most favorably insured by such
policy. Notwithstanding the foregoing, (i) the Company may, but shall not be
required to, create a trust fund, grant a security interest or use other means,
including, without limitation, a letter of credit, to ensure the payment of such
amounts as may be necessary to satisfy its obligations to indemnify and advance
expenses pursuant to this Agreement and (ii) in renewing or seeking to renew any
insurance hereunder, the Company will not be required to expend more than 2.0
times the premium amount of the immediately preceding policy period (equitably
adjusted if necessary to reflect differences in policy
periods).
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 related rights of recovery of Indemnitee against other Persons (other
than Indemnitee’s successors), including any entity or enterprise referred to in
clause (i) of the definition of “Indemnifiable Claim” in Section 1(f).
Indemnitee shall execute all papers reasonably required to evidence such rights
(all of Indemnitee’s reasonable Expenses, including attorneys’ fees and charges,
related thereto to be reimbursed by or, at the option of Indemnitee, advanced by
the Company).
14. No
Duplication of Payments.
The Company shall not be liable under this Agreement to make any payment to
Indemnitee in respect of any Indemnifiable Losses to the extent Indemnitee has
otherwise already actually received payment (net of Expenses incurred in
connection therewith) under any insurance policy, the Constituent Documents and
Other Indemnity Provisions or otherwise (including from any entity or enterprise
referred to in clause (i) of the definition of “Indemnifiable Claim” in Section
1(f)) in respect of such Indemnifiable Losses otherwise indemnifiable
hereunder.
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15. Defense of
Claims. Subject to the
provisions of applicable policies of directors’ and officers’ liability
insurance, if any, the Company shall be entitled to participate in the defense
of any Indemnifiable Claim or to assume or lead the defense thereof with counsel
reasonably satisfactory to the Indemnitee; provided that if Indemnitee determines, after
consultation with counsel selected by Indemnitee, that (a) the use of counsel
chosen by the Company to represent Indemnitee would present such counsel with an
actual or potential conflict, (b) the named parties in any such Indemnifiable
Claim (including any impleaded parties) include both the Company and Indemnitee
and Indemnitee shall conclude 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, (c) any such representation by such counsel would be
precluded under the applicable standards of professional conduct then
prevailing, or (d) Indemnitee has interests in the claim or underlying subject
matter that are different from or in addition to those of other Persons against
whom the Claim has been made or might reasonably be expected to be made, then
Indemnitee shall be entitled to retain separate counsel (but not more than one
law firm plus, if applicable, local counsel in respect of any particular
Indemnifiable Claim for all indemnitees in Indemnitee’s circumstances) at the
Company’s expense. The Company shall not be liable to Indemnitee under this
Agreement for any amounts paid in settlement of any threatened or pending
Indemnifiable Claim effected without the Company’s prior written consent. The
Company shall not, without the prior written consent of the Indemnitee, effect
any settlement of any threatened or pending Indemnifiable Claim 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 the
Indemnitee from all liability on any claims that are the subject matter of such
Indemnifiable Claim. Neither the Company nor Indemnitee shall unreasonably
withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent
to any settlement that does not provide a complete and unconditional release of
Indemnitee.
16. Mutual
Acknowledgment. Both the Company and the 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 in the future to undertake to the Securities and Exchange
Commission 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 and, in that event, the Indemnitee’s rights and the
Company’s obligations hereunder shall be subject to that
determination.
17. Successors
and Binding Agreement.
This
Agreement shall be binding upon and inure to the benefit of the Company and any
successor to the Company, including, without limitation, any Person acquiring
directly or indirectly all or substantially all of the business or assets of the
Company whether by purchase, merger, consolidation, reorganization or otherwise
(and such successor will thereafter be deemed the “Company” for purposes of this
Agreement), but shall not otherwise be assignable or delegatable by the
Company.
This
Agreement shall inure to the benefit of and be enforceable by the Indemnitee’s
personal or legal representatives, executors, administrators, heirs,
distributees, legatees and other successors.
This
Agreement is personal in nature and neither of the parties hereto shall, without
the consent of the other, assign or delegate this Agreement or any rights or
obligations hereunder except as expressly provided in Sections 17(a) and 17(b).
Without limiting the generality or effect of the foregoing, Indemnitee’s right
to receive payments hereunder shall not be assignable, whether by pledge,
creation of a security interest or otherwise, other than by a transfer by the
Indemnitee’s will or by the laws of descent and distribution, and, in the event
of any attempted assignment or transfer contrary to this Section 17(c), the
Company shall have no liability to pay any amount so attempted to be assigned or
transferred.
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18. Notices. For all purposes of this Agreement,
all communications, including without limitation notices, consents, requests or
approvals, required or permitted to be given hereunder must be in writing and
shall be deemed to have been duly given when hand delivered or dispatched by
electronic facsimile transmission (with receipt thereof orally confirmed), or
one business day after having been sent for next-day delivery by a nationally
recognized overnight courier service, addressed to the Company (to the attention
of the Secretary of the Company) and to Indemnitee at the applicable address
shown on the signature page hereto, or to such other address as any party may
have furnished to the other in writing and in accordance herewith, except that
notices of changes of address will be effective only upon
receipt.
19. Governing
Law. The validity, interpretation,
construction and performance of this Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Delaware,
without giving effect to the principles of conflict of laws of such State. The
Company and Indemnitee each hereby irrevocably consent to the jurisdiction of
the Chancery Court of the State of Delaware for all purposes in connection with
any action or proceeding which arises out of or relates to this Agreement, waive
all procedural objections to suit in that jurisdiction, including, without
limitation, objections as to venue or inconvenience, agree that service in any
such action may be made by notice given in accordance with Section 18 and also
agree that any action instituted under this Agreement shall be brought only in
the Chancery Court of the State of Delaware.
20. Validity. If any provision of this Agreement or
the application of any provision hereof to any Person or circumstance is held
invalid, unenforceable or otherwise illegal, the remainder of this Agreement and
the application of such provision to any other Person or circumstance shall not
be affected, and the provision so held to be invalid, unenforceable or otherwise
illegal shall be reformed to the extent, and only to the extent, necessary to
make it enforceable, valid or legal. In the event that any court or other
adjudicative body shall decline to reform any provision of this Agreement held
to be invalid, unenforceable or otherwise illegal as contemplated by the
immediately preceding sentence, the parties thereto shall take all such action
as may be necessary or appropriate to replace the provision so held to be
invalid, unenforceable or otherwise illegal with one or more alternative
provisions that effectuate the purpose and intent of the original provisions of
this Agreement as fully as possible without being invalid, unenforceable or
otherwise illegal.
21. Miscellaneous. No
provision of this Agreement may be waived, modified or discharged unless such
waiver, modification or discharge is agreed to in writing signed by Indemnitee
and the Company. No waiver by either party hereto at any time of any breach by
the other party hereto or compliance with any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, expressed
or implied with respect to the subject matter hereof have been made by either
party that are not set forth expressly in this Agreement.
22. Certain
Interpretive Matters.
Unless the context of this Agreement otherwise requires, (1) “it” or “its” or
words of any gender include each other gender, (2) words using the singular or
plural number also include the plural or singular number, respectively, (3) the
terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this
entire Agreement, (4) the terms “Article,” “Section,” “Annex” or “Exhibit” refer
to the specified Article, Section, Annex or Exhibit of or to this Agreement, (5)
the terms “include,” “includes” and “including” will be deemed to be followed by
the words “without limitation” (whether or not so expressed), and (6) the word
“or” is disjunctive but not exclusive. Whenever this Agreement refers to a
number of days, such number will refer to calendar days unless business days are
specified and whenever action must be taken (including the giving of notice or
the delivery of documents) under this Agreement during a certain period of time
or by a particular date that ends or occurs on a non-business day, then such
period or date will be extended until the immediately following business day. As
used herein, “business
day” means any day other
than Saturday, Sunday or a United States federal holiday.
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23. Entire
Agreement. This Agreement
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties hereto with respect
to the subject matter of this Agreement. Any prior agreements or understandings
between the parties hereto with respect to indemnification are hereby terminated
and of no further force or effect. This Agreement is not the exclusive means of
securing indemnification rights of Indemnitee and is in addition to any rights
Indemnitee may have under any Constituent Documents.
24. Counterparts. This Agreement may be executed in one
or more counterparts, each of which will be deemed to be an original but all of
which together shall constitute one and the same agreement.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, Indemnitee has
executed and the Company has caused its duly authorized representative to
execute this Agreement as of the date first above
written.
By:
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____________________________________________________
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Name:
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Title:
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INDEMNITEE:
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_______________________________________________________
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Name:
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Address:
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_________________________________________________
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_______________________________________________________
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_______________________________________________________
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Signature
Page to Director and Officer Indemnification Agreement
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