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EXHIBIT 10.29
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and entered into as
of the _____ day of ____________, by Crescent Operating, Inc., a Delaware
corporation, (referred to herein as the "Company") and_______________, an
officer and director of the Company (the "Indemnitee").
W I T N E S S E T H:
WHEREAS, the interpretation of ambiguous statutes, regulations and bylaws
regarding indemnification of officers and directors may be too uncertain to
provide such officers and directors with adequate notice of the legal, financial
and other risks to which they may be exposed by virtue of their service as such;
and
WHEREAS, damages sought against officers and directors in stockholder or
similar litigation by class action plaintiffs may be substantial, and the costs
of defending such actions and of judgments in favor of plaintiffs or of
settlement therewith may be prohibitive for individual officers and directors,
without regard to the merits of a particular action and without regard to the
culpability of, or the receipt of improper personal benefit by, any named
officer or director to the detriment of the corporation; and
WHEREAS, the issues in controversy in such litigation usually relate to
the knowledge, motives and intent of the officer or director, who may be the
only person with first-hand knowledge of essential facts or exculpating
circumstances who is qualified to testify in his defense regarding matters of
such a subjective nature, and, the long period of time which may elapse before
final disposition of such litigation, may impose undue hardship and burden on an
officer or director or his estate in launching and maintaining a proper and
adequate defense of himself or his estate against claims for damages; and
WHEREAS, the Company is organized under the Delaware General Corporation
Law (the "DGCL"), and Section 145 of the DGCL empowers corporations to indemnify
and advance expenses of litigation to a person serving as an officer, director,
employee or agent of a corporation and to persons serving at the request of the
corporation, while a director of a corporation, as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, and further
provides that the indemnification and advancement of expenses set forth in said
section shall not be deemed "exclusive of any other rights, by indemnification
or otherwise, to which those [directors and officers] seeking indemnification
and expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors"; and
WHEREAS, the First Amended and Restated Certificate of Incorporation of
the Company, as they may be amended or amended and restated from time to time
(the "Charter"), provides that (subject to certain qualifications) the Company
shall indemnify current and former officers and
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directors to the full extent permitted by the DGCL, as it may be amended from
time to time; and the First Amended and Restated Bylaws of the Company provide
that the Company "shall indemnify its officers and directors to the full extent
permitted by the General Corporation Law of the State of Delaware as such may be
amended from time to time"; and
WHEREAS, Section 145(f) of the DGCL provides that the indemnification and
expense advancement provided by or granted pursuant to Section 145 are not
exclusive of any other rights of indemnification and expense advancement
Indemnitee may be entitled under the Bylaws, any agreement (including this
Agreement), vote of stockholders, vote of disinterested directors, or otherwise,
although judicial interpretation of that nonexclusivity provision does not
permit a corporation to indemnify without regard to limitations set forth in
other subsections of Section 145 and any indemnification rights provided beyond
statutory provisions must be consistent with substantive provisions of Section
145; and
WHEREAS, the Board of Directors of the Company (the "Board") has
concluded that it is reasonable and prudent for the Company contractually to
obligate itself to indemnify in a reasonable and adequate manner the Indemnitee
and to assume for itself maximum liability for expenses and damages in
connection with claims lodged against the Indemnitee for the Indemnitee's
decisions and actions as a director and/or officer or both of the Company;
NOW, THEREFORE, in consideration of the foregoing, and of other good and
valuable consideration, the receipt and sufficiency of which are acknowledged by
each of the parties hereto, the parties agree as follows:
I.
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below:
A. "BOARD" shall mean the Board of Directors of the Company.
B. "CHANGE IN CONTROL" shall mean a change in the ownership or power to
direct the Voting Securities of the Company or the acquisition by a person not
affiliated with the Company of the ability to direct the management of the
Company.
C. "CORPORATE STATUS" shall mean the status of a person who is or was a
director, officer, employee or agent of the Company, or a member of any
committee of the Board, a director, officer, employee or agent of any past,
present or future direct or indirect subsidiary of the Company, a director,
officer, employee or agent of any predecessor of the Company in a merger,
consolidation, or other transaction in which the liabilities of the predecessor
are transferred to the Company by operation of law and in any other transaction
in which the Company assumes the liabilities of the predecessor but does not
specifically exclude liabilities to
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indemnify persons as contemplated hereby, and the status of a person who, while
a director or officer of the Company, is or was serving at the request of the
Company as a director, officer, partner, venturer, proprietor, trustee,
employee, agent, or similar functionary of another foreign or domestic
corporation, partnership, joint venture, sole proprietorship, trust, other
incorporated or unincorporated entity or enterprise or employee benefit plan.
D. "DISINTERESTED DIRECTOR" shall mean a director of the Company who, at
the time of the vote, is not a named defendant, respondent or otherwise a party
in or to the Proceeding in respect of which indemnification is being sought by
the Indemnitee.
E. "EXPENSES" shall mean any and all expenses of Proceedings, including,
without limitation, all attorneys' fees, retainers, court costs, transcript
costs, fees of experts, investigation fees and expenses, accounting and witness
fees, travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating or being or preparing to be a
witness in a Proceeding.
F. "GOOD FAITH ACT OR OMISSION" shall mean an act or omission of the
Indemnitee other than (i) one committed in bad faith or that was the result of
the Indemnitee's active or deliberate dishonesty; (ii) one from which the
Indemnitee actually received an improper personal benefit in money, property or
services; or (iii) in the case of a criminal Proceeding, one as to which the
Indemnitee had cause to believe his conduct was unlawful.
G. "LIABILITIES" shall mean liabilities of any type whatsoever,
including, without limitation, any judgments, fines, excise taxes and penalties
under the Employee Retirement Income Security Act of 1974, as amended, penalties
and amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such judgments,
fines, penalties or amounts paid in settlement) in connection with the
investigation, defense, settlement or appeal of any Proceeding or any claim,
issue or matter therein.
H. "PROCEEDING" shall mean any threatened, pending or completed action,
suit, proceeding, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing, or any other actual, threatened or
completed proceeding, whether civil, criminal, administrative, arbitrative or
investigative, any appeal or appeals therefrom, and any inquiry or investigation
that could lead to any of the foregoing.
I. "VOTING SECURITIES" shall mean any securities of the Company that are
entitled to vote generally in the election of directors.
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II.
TERM OF AGREEMENT
This Agreement shall continue until, and terminate upon the later to
occur of (i) the death of the Indemnitee; or (ii) the final termination of all
Proceedings (including possible Proceedings) in respect of which the Indemnitee
is granted rights of indemnification or advancement of Expenses hereunder and of
any Proceeding commenced by the Indemnitee regarding the interpretation or
enforcement of this Agreement.
III.
NOTICE OF PROCEEDINGS, DEFENSE OF CLAIMS
A. NOTICE OF PROCEEDINGS. The Indemnitee agrees to notify the Company
promptly in writing 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, but the Indemnitee's omission to so notify the Company shall
not relieve the Company from any liability which it may have to the Indemnitee
under this Agreement.
B. DEFENSE OF CLAIMS. The Company will be entitled to participate, at the
expense of the Company in any Proceeding of which the Company has notice. The
Company will be entitled to assume the defense of the Indemnitee therein, with
counsel reasonably satisfactory to the Indemnitee; provided, however, that the
Company shall not be entitled to assume the defense of the Indemnitee in any
Proceeding if there has been a Change in Control or if the Indemnitee has
reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee with respect to such Proceeding. The Company will not
be liable to the Indemnitee under this Agreement for any Expenses incurred by
the Indemnitee in connection with the defense of any Proceeding, other than
reasonable costs of investigation or as otherwise provided below, after notice
from the Company to the Indemnitee of its election to assume the defense of the
Indemnitee therein. The Indemnitee shall have the right to employ his own
counsel in any such Proceeding, but the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof
shall be at the expense of the Indemnitee unless (i) the employment of counsel
by the Indemnitee has been authorized by the Company; (ii) the Indemnitee shall
have reasonably concluded that counsel employed by the Company may not
adequately represent the Indemnitee and shall have so informed the Company; or
(iii) the Company shall not in fact have employed counsel to assume the defense
of the Indemnitee in such Proceeding or such counsel shall not, in fact, have
assumed such defense or such counsel shall not be acting, in connection
therewith, with reasonable diligence; and in each such case the fees and
expenses of the Indemnitee's counsel shall be advanced by the Company.
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C. SETTLEMENT OF CLAIMS. The Company shall not settle any Proceeding in
any manner which would impose any liability, penalty or limitation on the
Indemnitee without the written consent of the Indemnitee; provided, however,
that the Indemnitee will not unreasonably withhold or delay consent to any
proposed settlement. The Company shall not be liable to indemnify the Indemnitee
under this Agreement or otherwise for any amounts paid in settlement of any
Proceeding effected by the Indemnitee without the Company's written consent,
which consent shall not be unreasonably withheld or delayed.
IV.
INDEMNIFICATION
A. IN GENERAL. Upon the terms and subject to the conditions set forth in
this Agreement, the Company to the fullest extent required or permitted by
applicable law in effect on the date hereof and to such greater extent as
applicable law may hereafter from time to time require or permit shall hold
harmless and indemnify the Indemnitee against any and all Liabilities and
Expenses actually incurred by or for the Indemnitee in connection with any
Proceeding in which the Indemnitee is or becomes involved as a party, a witness
or otherwise is a participant in any role either by reason of the Indemnitee's
Corporate Status. For all matters for which the Indemnitee is entitled to
indemnification under this Article IV, the Indemnitee shall be entitled to
advancement of Expenses in accordance with Article V hereof.
B. INDEMNIFICATION OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL.
Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee is successful, on the merits or otherwise, in any Proceeding
described in A above, the Indemnitee shall be indemnified by the Company to the
maximum extent consistent with law, against all Expenses and Liabilities
actually incurred by or for him in connection therewith. If the Indemnitee is
not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall hold harmless and indemnify the Indemnitee to the
maximum extent consistent with law, against all Expenses and Liabilities
actually incurred by or for him in connection with each successfully resolved
claim, issue or matter in such Proceeding. Resolution of a claim, issue or
matter by dismissal, with or without prejudice, shall be deemed a successful
result as to such claim, issue or matter, so long as there has been no finding
(either adjudicated or pursuant to Article VI hereof) that the act(s) or
omissions) of the Indemnitee giving rise thereto was not a Good Faith Act(s) or
Omission(s).
C. INDEMNIFICATION FOR EXPENSES OF WITNESS. Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee, by reason of the
Indemnitee's Corporate Status, has prepared to serve or has served as a witness
in any Proceeding, or has participated in discovery proceedings or other trial
preparation, the Indemnitee shall be held harmless and indemnified against all
Expenses actually incurred by or for the Indemnitee in connection therewith.
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D. SPECIFIC LIMITATIONS ON INDEMNIFICATION. In addition to the other
limitations set forth in this Article IV, and notwithstanding anything in this
Agreement to the contrary, the Company shall not be obligated under this
Agreement to make any payment to the Indemnitee for indemnification with respect
to any Proceeding (or part thereof):
1. To the extent that payment is actually made to the Indemnitee
under any insurance policy or is made on behalf of the Indemnitee by or
on behalf of the Company otherwise than pursuant to this Agreement;
2. If a court in such Proceeding has entered a judgment or other
adjudication which is final and has become nonappealable and established
that a claim of the Indemnitee for such indemnification arose from: (i)
a breach by the Indemnitee of the Indemnitee's duty of loyalty to the
Company or its stockholders; or (ii) an act(s) or omission(s) of the
Indemnitee that is not a Good Faith Act(s) or Omission(s);
3. If there has been no Change in Control, for Liabilities in
connection with Proceedings settled without the consent of the Company;
or
4. For an accounting of profits made from the purchase or sale by
the Indemnitee of securities of the Company within the meaning of
section 16(b) of the Securities Exchange Act of 1934, as amended, or
similar provisions of any federal, state or local statute or regulation.
V.
ADVANCEMENT OF EXPENSES
Notwithstanding any provision to the contrary in Article VI hereof, the
Company shall advance to the Indemnitee all Expenses which were incurred by or
for the Indemnitee in connection with any Proceeding for which the Indemnitee is
entitled to indemnification pursuant to Article IV hereof, in advance of the
final disposition of such Proceeding, provided that, with respect to Expenses to
be advanced by the Company, the Company receive an undertaking by or on behalf
of the Indemnitee to repay Expenses advanced if it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified by the Company
hereunder in such form as may be required under applicable law as in effect at
the time of execution thereof (the "Undertaking"). The Undertaking shall
reasonably evidence the Expenses incurred by or for the Indemnitee and shall
contain a written affirmation by the Indemnitee of his good faith belief that
the standard of conduct necessary for indemnification has been met. The Company
shall advance such expenses within twenty days after the receipt by the Company
of the later of the Undertaking and a statement or statements from Indemnitee
requesting such advance or advances from time to time. The Indemnitee hereby
agrees to repay any Expenses advanced hereunder if it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified against such
Expenses. Any
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advances and the undertaking to repay pursuant to this Article V shall be
unsecured and interest free, and shall be made and accepted by the Company
without reference to the Indemnitee's financial ability to make repayment.
VI.
PROCEDURE FOR PAYMENT OF LIABILITIES;
DETERMINATION OF RIGHT TO INDEMNIFICATION
A. PROCEDURE FOR PAYMENT. To obtain indemnification for Liabilities under
this Agreement, the Indemnitee shall submit to the Company a written request for
payment, including with such request such documentation as is reasonably
available to the Indemnitee and reasonably necessary to determine whether, and
to what extent, the Indemnitee is entitled to indemnification and payment
hereunder. Any indemnification payment due hereunder shall be paid by the
Company no later than twenty days following the determination, pursuant to this
Article VI, that such indemnification payment is proper hereunder.
B. NO DETERMINATION NECESSARY WHEN THE INDEMNITEE WAS SUCCESSFUL. To the
extent the Indemnitee has been successful, on the merits or otherwise, in
defense of any Proceeding or in the defense of any claim, issue or matter in
such Proceeding, the Company shall indemnify the Indemnitee against all Expenses
actually incurred by or for the Indemnitee in connection with such Proceeding.
C. DETERMINATION OF GOOD FAITH ACT OR OMISSION. In the event that Section
VI.B. is inapplicable, the Company also shall hold harmless and indemnify the
Indemnitee, except that the Company shall have no liability to the Indemnitee
hereunder if the Company shall prove by clear and convincing evidence to a forum
listed in Section VI.D. below that the act(s) or omission(s) of the Indemnitee
giving rise to the Proceeding was not a Good Faith Act(s) or Omission(s).
D. FORUM FOR DETERMINATION. The Indemnitee shall be entitled to select
from among the following the forum in which the validity of the Company's claim
under Section VI.C. above that the Indemnitee is not entitled to indemnification
will be heard:
1. A quorum of the Board consisting of Disinterested Directors;
2. If such a quorum cannot be obtained, a committee of the Board,
designated to act in the matter by a majority vote of all Directors,
consisting of two or more Directors who are Disinterested Directors;
3. The stockholders of the Company;
4. Legal counsel selected by the Indemnitee, subject to the approval
of the Board, which approval shall not be unreasonably delayed or
denied, which counsel shall make such determination in a written
opinion; or
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5. A panel of three arbitrators, one of whom is selected by the
Company, another of whom is selected by the Indemnitee and the last of
whom is selected jointly by the first two arbitrators so selected.
As soon as practicable, and in no event later than thirty days after written
notice of the Indemnitee's choice of forum pursuant to this Section VI.D., the
Company shall, at the expense of the Company, submit to the selected forum in
such manner as the Indemnitee or the Indemnitee's counsel may reasonably
request, its claim that the Indemnitee is not entitled to indemnification, and
the Company shall act in the utmost good faith to assure the Indemnitee a
complete opportunity to defend against such claim. The fees and expenses of the
selected forum in connection with making the determination contemplated
hereunder shall be paid by the Company. If the Company shall fail to submit the
matter to the selected forum within thirty days after the Indemnitee's written
notice or if the forum so empowered to make the determination shall have failed
to make the requested determination within thirty days after the matter has been
submitted to it by the Company, the requisite determination that the Indemnitee
has the right to indemnification shall be deemed to have been made.
E. RIGHT TO APPEAL. Notwithstanding a determination by any forum listed
in Section VI.D. above that the Indemnitee is not entitled to indemnification
with respect to a specific Proceeding, the Indemnitee shall have the right to
apply to the court in which that Proceeding is or was pending, or to any other
court of competent jurisdiction, for the purpose of enforcing the Indemnitee's
right to indemnification pursuant to this Agreement. Such enforcement action
shall consider the Indemnitee's entitlement to indemnification de novo, and the
Indemnitee shall not be prejudiced by reason of a prior determination that the
Indemnitee is not entitled to indemnification. The Company shall be precluded
from asserting that the procedures and presumptions of this Agreement are not
valid, binding and enforceable. The Company further agrees to stipulate in any
such judicial proceeding that the Company is bound by all the provisions of this
Agreement and is precluded from making any assertion to the contrary.
F. RIGHT TO SEEK JUDICIAL DETERMINATION. Notwithstanding any other
provision of this Agreement to the contrary, at any time after thirty days after
a request for indemnification has been made to the Company (or upon earlier
receipt of written notice that a request for indemnification has been rejected)
and before the third anniversary of the making of such indemnification request,
the Indemnitee may petition a court of competent jurisdiction, whether or not
such court has jurisdiction over, or is the forum in which is pending, the
Proceeding, to determine whether the Indemnitee is entitled to indemnification
hereunder, and such court thereupon shall have the exclusive authority to make
such determination, unless and until such court dismisses or otherwise
terminates the Indemnitee's action without having made such determination. The
court, as petitioned, shall make an independent determination of whether the
Indemnitee is entitled to indemnification hereunder, without regard to any prior
determination in any other forum as provided hereby.
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G. EXPENSES UNDER THIS AGREEMENT. Notwithstanding any other provision in
this Agreement to the contrary, the Company shall indemnify the Indemnitee
against all Expenses incurred by the Indemnitee in connection with any hearing
or proceeding under this Section VI involving the Indemnitee and against all
Expenses incurred by the Indemnitee in connection with any other action between
the Company and the Indemnitee involving the interpretation or enforcement of
the rights of the Indemnitee under this Agreement, even if it is finally
determined that the Indemnitee is not entitled to indemnification in whole or in
part hereunder.
VII.
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS
A. BURDEN OF PROOF. In making a determination with respect to entitlement
to indemnification hereunder, the person, persons, entity or entities making
such determination shall presume that the Indemnitee is entitled to
indemnification under this Agreement and the Company shall have the burden of
proof to overcome that presumption.
B. EFFECT OF OTHER PROCEEDINGS. The termination of any Proceeding or of
any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, or an entry of
an order of probation prior to judgment, shall not of itself be determinative
that the act(s) or omission(s) giving rise to the Proceeding were not Good Faith
Act(s) or Omission(s).
C. RELIANCE AS SAFE HARBOR. For purposes of any determination of whether
any act or omission of the Indemnitee was a Good Faith Act or Omission, each act
of the Indemnitee shall be deemed to be a Good Faith Act or Omission if the
Indemnitee's action is based on the records or books of accounts of the Company,
including financial statements, or on information supplied to the Indemnitee by
the officers of the Company in the course of their duties, or on the advice of
legal counsel for the Company, or on information or records given or reports
made to the Company by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Company. The
provisions of this Section VII.C. shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the Indemnitee may be deemed
to have met the applicable standard of conduct set forth in this Agreement or
under applicable law.
D. ACTIONS OF OTHERS. Neither the knowledge, actions, or failure to act,
of any director, officer, agent or employee of the Company shall be imputed to
the Indemnitee for purposes of determining the right to indemnification under
this Agreement.
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VIII.
INSURANCE; OTHER INDEMNIFICATION ARRANGEMENTS
A. INSURANCE. In the event that the Company maintains officers' and
directors' or similar liability insurance to protect itself and any director or
officer of the Company against any expense, liability or loss, such insurance
shall cover the Indemnitee to at least the same degree as each other director
and/or officer of the Company.
B. OTHER ARRANGEMENTS. The Charter and Bylaws of the Company permit the
Company to purchase and maintain insurance or furnish comparable protection or
make other arrangements, including but not limited to providing a trust fund,
letter of credit, or surety bond (collectively, "Indemnification Arrangements")
on behalf of the Indemnitee against any Liability asserted against or incurred
by the Indemnitee or any Expenses incurred by the Indemnitee or on the
Indemnitee's behalf in connection with actions taken or omissions by the
Indemnitee in the Indemnitee's Corporate Status, whether or not the Company
would have the power to indemnify the Indemnitee under this Agreement or under
the DGCL, as it may be in effect from time to time. The purchase, establishment
or maintenance, or any combination thereof, of any such Indemnification
Arrangement shall in no way affect or limit the rights and obligations of the
Indemnitee or the Company hereunder, except as expressly provided herein, and
the execution and delivery of this Agreement by the Indemnitee and the Company
shall in no way affect or limit the rights and obligations of such parties under
or with respect to any other such Indemnification Arrangement.
IX.
OBLIGATIONS OF THE COMPANY UPON A CHANGE IN CONTROL
In the event of a Change in Control, upon written request of the
Indemnitee the Company shall establish a trust for the benefit of the Indemnitee
hereunder (a "Trust") and from time to time, upon written request from the
Indemnitee, shall fund the Trust in an amount sufficient to satisfy all amounts
actually paid hereunder as indemnification for Liabilities or Expenses
(including those paid in advance) or which the Indemnitee reasonably determines
and demonstrates, from time to time, may be payable by the Company hereunder.
The amount or amounts to be deposited in the Trust shall be determined by legal
counsel selected by the Indemnitee and approved by the Company, which approval
shall not be unreasonably withheld. The terms of the Trust shall provide that
(i) the Trust shall not be dissolved or the principal thereof invaded without
the written consent of the Indemnitee; (ii) the trustee of the Trust (the
"Trustee") shall be selected by the Indemnitee; (iii) the Trustee shall make
advances to the Indemnitee for Expenses within ten business days following
receipt of a written request therefor (and the Indemnitee hereby agrees to
reimburse the Trust under the circumstances under which the Indemnitee would be
required to reimburse the Company under Article V hereof; (iv) the Company shall
continue to fund the Trust from time to time in accordance with its funding
obligations hereunder; (v) the Trustee promptly shall pay to the Indemnitee all
amounts as to which indemnification is due under this Agreement; (vi) unless the
Indemnitee agrees otherwise
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in writing, the Trust for the Indemnitee shall be kept separate from any other
trust established for any other person to whom indemnification might be due by
the Company; and (vii) all unexpended funds in the Trust shall revert to the
Company upon final, nonappealable determination by a court of competent
jurisdiction that the Indemnitee has been indemnified to the full extent
required under this Agreement.
X.
NON-EXCLUSIVITY, SUBROGATION AND MISCELLANEOUS
A. NON-EXCLUSIVITY. The rights of the Indemnitee hereunder shall not be
deemed exclusive of any other rights to which the Indemnitee may at any time be
entitled under any provision of law, the Charter, the Bylaws of the Company, as
the same may be in effect from time to time, any other agreement, a vote of
stockholders of the Company or any general or specific action of the Board of
Directors of the Company or otherwise, and to the extent that during the term of
this Agreement the rights of the then-existing directors and officers of the
Company are more favorable to such directors or officers than the rights
currently provided to the Indemnitee under this Agreement, the Indemnitee shall
be entitled to the full benefits of such more favorable rights. No amendment,
alteration, rescission or replacement of this Agreement or any provision hereof
which would in any way limit the benefits and protections afforded to an
Indemnitee hereby shall be effective as to such Indemnitee with respect to any
action or inaction by such Indemnitee in the Indemnitee's Corporate Status prior
to such amendment, alteration, rescission or replacement.
B. SUBROGATION. In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all documents required and take
all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such
rights.
C. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (i) if
delivered by hand, by courier or by telegram and receipted for by the party to
whom said notice or other communication shall have been directed at the time
indicated on such receipt; (ii) if by facsimile at the time shown on the
confirmation of such facsimile transmission; or (iii) if by U.S. certified or
registered mail, with postage prepaid, on the third business day after the date
on which it is so mailed:
If to the Indemnitee, as shown with the Indemnitee's signature below.
If to the Company to:
Crescent Operating, Inc.
000 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Facsimile No. (000) 000-0000
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or to such other address as may have been furnished to the Indemnitee by the
Company or to the Company by the Indemnitee, as the case may be.
D. GOVERNING LAW. The parties agree that this Agreement shall be governed
by, and construed and enforced in accordance with, the substantive laws of the
State of Delaware, without regard to conflicts of laws principles.
E. BINDING EFFECT. Except as otherwise provided in this Agreement, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their heirs, executors, administrators, successors, legal representatives
and permitted assigns. The Company shall require any successor or assignee
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of their respective assets or businesses, by written
agreement in form and substance reasonably satisfactory to the Indemnitee,
expressly to assume and agree to be bound by and to perform this Agreement in
the same manner and to the same extent as the Company would be required to
perform absent such succession or assignment.
F. WAIVER. No termination, cancellation, modification, amendment,
deletion, addition or other change in this Agreement, or any provision hereof,
or waiver of any right or remedy herein, shall be effective for any purpose
unless specifically set forth in a writing signed by the party or parties to be
bound thereby. The waiver of any right or remedy with respect to any occurrence
on one occasion shall not be deemed a waiver of such right or remedy with
respect to such occurrence on any other occasion.
G. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding among the parties hereto in reference to the subject matter
hereof; provided, however, that the parties acknowledge and agree that the
Charter and Bylaws of the Company contain provisions on the subject matter
hereof and that this Agreement is not intended to, and does not, limit the
rights or obligations of the parties hereto pursuant to such instruments.
H. TITLES. The titles to the articles and sections of this Agreement are
inserted for convenience of reference only and should not be deemed a part
hereof or affect the construction or interpretation of any provisions hereof.
I. INVALIDITY OF PROVISIONS. Every provision of this Agreement is
severable, and the invalidity or unenforceability of any term or provision shall
not affect the validity or enforceability of the remainder of this Agreement. In
addition, it is the intention of the Company and
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Indemnitee that in the event a provision of this Agreement is not valid or
enforceable as written, there shall be substituted therefor a provision as
nearly like the offensive provision in meaning, intent, operation and effect (so
that the respective rights and duties of the Company and Indemnitee are as
nearly like their respective rights and duties as established under the
offensive provision) as is valid and enforceable.
J. PRONOUNS AND PLURALS. Whenever the context may require, any pronoun
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns, pronouns and verbs shall include
the plural and vice versa.
K. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together constitute one agreement binding on all the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
CRESCENT OPERATING, INC.
a Delaware corporation
By:
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Name:
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Title:
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------------------------------------------,
as INDEMNITEE
Name:
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Title:
-------------------------------------
Address:
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Facsimile No.:
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