INDEMNITY AGREEMENT
This
Indemnity Agreement (“Agreement”)
is
made as of June __, 2007 by and between BPO Management Services, Inc., a
Delaware corporation (the “Company”),
and
__________________ (“Indemnitee”).
RECITALS
WHEREAS,
qualified persons have become more reluctant to serve publicly-held corporations
as directors or Named Executive Officers (as hereinafter defined) unless they
are provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of such corporation;
WHEREAS,
the Board of Directors of the Company (the “Board”)
has
determined that the increased difficulty in attracting and retaining such
persons is detrimental to the best interests of the Company’s stockholders and
that the Company should act to assure such persons that there will be increased
certainty of such protection in the future;
WHEREAS,
it is reasonable, prudent and necessary for the Company to agree contractually
to indemnify such persons so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified;
and
WHEREAS,
the Company desires and intends hereby to indemnify Indemnitee to the fullest
extent permitted by law.
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein
and for other good and valuable consideration, the receipt and adequacy of
which
are hereby acknowledged, the Company and Indemnitee do hereby covenant and
agree
as follows:
1. Services
to the Company.
Indemnitee will serve or continue to serve, at the will of the Company, as
a
director of the Company for so long as Indemnitee is duly elected or until
Indemnitee tenders his resignation. If Indemnitee is a Named Executive Officer,
Indemnitee will serve or continue to serve, at the will of the Company, as
an
officer of the Company for so long as provided in any employment agreement
between the Company and Indemnitee, if any, or as provided in the Company’s
policies.
2. Indemnity
of Indemnitee.
The
Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest
extent permitted by applicable law, as such may be amended from time to time.
In
furtherance of the foregoing indemnification, and without limiting the
generality thereof:
(a) Proceedings
Other Than Proceedings by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 2(a) if, by reason of his Corporate Status (as hereinafter defined),
Indemnitee is, or is threatened to be made, a party to any Proceeding (as
hereinafter defined), other than a Proceeding by or in the right of the Company.
Pursuant to this Section 2(a), Indemnitee shall be indemnified against
all
Expenses
(as hereinafter defined), judgments, fines, penalties and amounts paid in
settlement actually and reasonably incurred by Indemnitee or on his behalf
in
connection with such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in good faith and in a manner he reasonably believed to be
in
or not opposed to the best interests of the Company and, in the case of a
criminal Proceeding, had no reasonable cause to believe that his conduct was
unlawful.
(b) Proceedings
by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 2(b) if, by reason of his Corporate Status, Indemnitee is, or is
threatened to be made, a party to any Proceeding brought by or in the right
of
the Company to procure a judgment in its favor. Pursuant to this
Section 2(b), Indemnitee shall be indemnified against all Expenses actually
and reasonably incurred by him or on his behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Company; provided,
however,
if
applicable law so provides, no indemnification for such Expenses shall be made
in respect of any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Company, unless and
only
to the extent that any court in which the Proceeding was brought or the Delaware
Court (as defined below) shall determine 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 Delaware Court or such other court shall deem proper.
(c) Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified
to the maximum extent permitted by law, as such may be amended from time to
time, against all Expenses actually and reasonably incurred by him or on his
behalf in connection therewith. If 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
indemnify and hold harmless Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a Proceeding
by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.
(d) Indemnification
for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding
to
which Indemnitee is not a party, he shall be indemnified against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith.
3. Additional
Indemnification.
In
addition to, and without regard to any limitations on, the indemnification
provided for in Section 2 of this Agreement, the Company shall indemnify and
hold harmless Indemnitee against all Expenses, judgments, fines, penalties
and
amounts paid in settlement actually and reasonably incurred by Indemnitee or
on
his behalf if, by reason of his Corporate Status, he is, or is threatened to
be
made, a party to any Proceeding
-2-
(including
a Proceeding by or in the right of the Company); provided that, prior to any
payments being made to Indemnitee under this Section, Indemnitee shall deliver
to the Company an undertaking to repay any Expenses advanced if it shall be
finally determined (under the procedures, and subject to the presumptions,
set
forth in Section 6 hereof) that Indemnitee is not entitled to be indemnified
against such Expenses or that such indemnification would be unlawful.
4. Exclusions.
Notwithstanding any provision in this Agreement, the Company shall not be
obligated under this Agreement to make any indemnity in connection with any
claim made against Indemnitee: (a) for which payment has actually been received
by or on behalf of Indemnitee under any insurance policy of the Company or
other
indemnity provision of the Company, except with respect to any excess beyond
the
amount actually received under any insurance policy of the Company or other
indemnity provision of the Company; (b) for an accounting of profits made from
the purchase and sale (or sale and purchase) by Indemnitee of securities of
the
Company within the meaning of Section 16(b) of the Exchange Act of 1934, as
amended, or similar provisions of state statutory law or common law; or (c)
in
connection with any Proceeding (or any part of any Proceeding) initiated by
Indemnitee (other than a Proceeding (or any part of a Proceeding) initiated
by
Indemnitee to enforce the provisions of this Agreement), including any
Proceeding (or any part of any Proceeding) initiated by Indemnitee against
the
Company or its directors, officers, employees or other indemnitees, unless
(i)
the Board of the Company authorized the Proceeding (or any part of any
Proceeding) prior to its initiation or (ii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers vested in the
Company under applicable law.
5. Advances
of Expenses; Defense of Claim.
(a) Notwithstanding
any provision of this Agreement to the contrary, the Company shall advance
the
Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days
after the receipt by the Company of a statement or statements requesting such
advance or advances from time to time, whether prior to or after final
disposition of any Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by Indemnitee and shall include or be preceded
or
accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that Indemnitee is not
entitled to be indemnified against such Expenses. This Section 5(a) shall not
apply to any claim made by Indemnitee for which indemnity is excluded pursuant
to Section 4.
(b) The
Company will be entitled to participate in the Proceeding at its own expense.
6. Procedures
and Presumptions for Determination of Entitlement to
Indemnification.
It is
the intent of this Agreement to secure for Indemnitee rights of indemnity that
are as favorable as may be permitted under the Delaware General Corporation
Law
and public policy of the State of Delaware. Accordingly, the parties agree
that
the following procedures and presumptions shall apply in the event of any
question as to whether Indemnitee is entitled to indemnification under this
Agreement:
-3-
(a) Indemnitee
agrees to promptly notify the Company in writing within five (5) days after
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. Failure
to promptly notify the Company shall not terminate the Company’s obligation to
Indemnitee with respect to such Proceeding under this Agreement unless such
failure materially prejudices the Company’s ability to defend such claim, and
the failure to so notify the Company shall not relieve the Company from any
liability that it may have to Indemnitee outside of this Agreement. Further,
Indemnitee shall submit to the Company a written request, including therein
or
therewith such documentation and information as is reasonably available to
Indemnitee, is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification, and is subsequently reasonably
requested by the person or persons or entity making such determination. The
Secretary of the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board in writing that Indemnitee has requested
indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to Section 6(a),
a
determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case by one of the following
methods, which shall be at the election of the Board: (i) by a majority vote
of
the Disinterested Directors (as hereinafter defined), even though less than
a
quorum of the Board; (ii) by a committee of Disinterested Directors designated
by a majority vote of the Disinterested Directors, even though less than a
quorum; (iii) if there are no Disinterested Directors or if the Disinterested
Directors so direct, by Independent Counsel (as hereinafter defined) in a
written opinion to the Board, a copy of which shall be delivered to Indemnitee;
or (iv) by the stockholders of the Company. If it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee shall be made
within ten (10) days after such determination.
(c) In
the
event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 6(b) hereof, the Independent Counsel
shall be selected as provided in this Section 6(c). The Independent Counsel
shall be selected by the Board, which shall give written notice to Indemnitee
advising him of the identity of the Independent Counsel so selected. Indemnitee
may, within ten (10) days after such written notice of selection shall have
been
received, deliver to the Company 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 meet the requirements of “Independent Counsel” as defined
in Section 11(e) of this Agreement, 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 so made and substantiated, the Independent Counsel so
selected may not serve as Independent Counsel unless and until such objection
is
withdrawn or a court of competent jurisdiction has determined that such
objection is without merit. If, within twenty (20) days after submission by
Indemnitee of a written request for indemnification pursuant to Section 6(a)
hereof, no Independent Counsel shall have been selected and not objected to,
either the Company or Indemnitee may petition the Delaware Court or other court
of competent jurisdiction for resolution of any objection which shall have
been
made by Indemnitee to the Company’s selection of Independent Counsel and/or for
the appointment as Independent Counsel of a person selected by the court or
by
such other person as the court shall designate, and the person with respect
to
whom all objections are so resolved or
-4-
the
person so appointed shall act as Independent Counsel under Section 6(b) hereof.
The Company agrees to pay the reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with acting pursuant
to Section 6(b) hereof, and the Company shall pay all reasonable fees and
expense incident to the procedures of this Section 6(c), regardless of the
manner in which such Independent Counsel was selected or appointed.
(d) In
making
a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement if Indemnitee
has
submitted a request for indemnification in accordance with Section 6(a) of
this
Agreement, and the Company shall have the burden of proof to overcome that
presumption in connection with the making by any person, persons or entity
of
any determination contrary to that presumption.
(e) 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, shall not (except as otherwise expressly provided in this Agreement)
of itself create a presumption that Indemnitee did not act in good faith and
in
a manner which he reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his conduct was unlawful.
(f) For
purposes of any determination of good faith, Indemnitee shall be deemed to
have
acted in good faith if Indemnitee’s action is based on the records or books of
account of the Enterprise (as hereinafter defined), including financial
statements, or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of legal counsel
for
the Enterprise or on information or records given or reports made to the
Enterprise by an independent certified public accountant or by an appraiser
or
other expert selected by the Enterprise. The provisions of this Section 6(f)
shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed or found to have met the
applicable standard of conduct set forth in this Agreement.
(g) The
knowledge and/or actions, or failure to act, of any other director, officer,
trustee, partner, managing member, fiduciary, agent or employee of the
Enterprise shall not be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement.
7. Non-exclusivity;
Survival of Rights; Insurance; Subrogation.
(a) The
rights of indemnification and to receive advancement of Expenses as provided
by
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the Company’s
Certificate of Incorporation (as may be amended or restated from time to time),
the Company’s Bylaws, any agreement, a vote of stockholders, a resolution of
directors, or otherwise. 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 Corporate Status prior to such amendment, alteration or repeal. To the
extent that a change
-5-
in
Delaware law, whether by statute or judicial decision, permits greater
indemnification or advancement of Expenses than would be afforded currently
under the Company’s Bylaws or this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change.
(b) To
the
extent that the Company maintains an insurance policy or policies providing
liability insurance for directors or officers of the Company or of any other
Enterprise in respect of which such person serves at the request of the Company,
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 or officer under such policy or policies. If, at the time the Company
receives notice from any source of a Proceeding as to which Indemnitee is a
party or a participant (as a witness or otherwise), the Company has director
liability insurance in effect, the Company shall give prompt notice of such
Proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all reasonably necessary
or desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such Proceeding in accordance with the terms
of such policies.
(c) 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 Indemnitee,
who
shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
(d) The
Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee
who is or was serving at the request of the Company as a director, officer,
trustee, partner, managing member, fiduciary, employee or agent of any other
Enterprise shall be reduced by any amount Indemnitee has actually received
as
indemnification or advancement of expenses from such Enterprise or from any
insurance policy maintained by such Enterprise.
8. Duration
of Agreement.
All
agreements and obligations of the Company contained herein shall continue during
the period Indemnitee is a director or a Named Executive Officer of the Company
(or is or was serving at the request of the Company as a director, officer,
trustee, partner, managing member, fiduciary, employee or agent of any other
Enterprise) and shall continue thereafter so long as Indemnitee shall be subject
to any Proceeding by reason of his Corporate Status, whether or not he is acting
or serving in any such capacity at the time any liability or expense is incurred
for which indemnification can be provided under this Agreement. The Indemnitee’s
rights under this Agreement shall inure to the benefit of his heirs, executors
and administrators.
9. Severability.
If any
provision nor provisions 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 this Agreement (including without
limitation, each portion of any Section, paragraph or sentence of this Agreement
containing any such provision held to be invalid, illegal or unenforceable,
that
is not itself invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby and shall remain enforceable to the fullest extent
permitted by law; (b) such provision or provisions shall be deemed reformed
to
the extent
-6-
necessary
to conform to applicable law and to give the maximum effect to the intent of
the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section, paragraph
or sentence of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested thereby.
10. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof.
11. Definitions.
For
purposes of this Agreement, the following terms shall have the following means:
(a) “Corporate
Status”
describes the status of a person who is or was a director or Named Executive
Officer of the Company or a director, officer, trustee, general partner,
managing member, fiduciary, employee or agent of any other Enterprise which
such
person is or was serving at the request of the Company.
(b) “Disinterested
Director”
means
a
director of the Company who is not and was not a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.
(c) “Enterprise”
shall
mean the Company 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, trustee, general partner, managing member, fiduciary, employee or
agent.
(d) “Expenses”
shall
include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing
to be a witness in, or otherwise participating in, a Proceeding. Expenses also
shall include Expenses incurred in connection with any appeal resulting from
any
Proceeding, including without limitation the premium, security for, and other
costs relating to any cost bond, supersedeas bond, or other appeal bond or
its
equivalent. Expenses, however, shall not include amounts paid in settlement
by
Indemnitee or the amount of judgments, fines or penalties against Indemnitee.
(e) “Independent
Counsel”
means
a
law firm, or a member of 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 (other than with respect to matters concerning
the
Indemnitee under this Agreement, or of other indemnitees under similar
indemnification agreements with the Company), 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
-7-
conflict
of interest in representing either the Company or Indemnitee in an action to
determine Indemnitee’s rights under this Agreement.
(f) References
to “other
enterprises”
shall
include employee benefit plans; references to “fines” shall include any excise
tax assessed with respect to any employee benefit plan; references to “serving
at the request of the Company” shall include any service as a director, officer,
employee or agent of the Company which imposes duties on, or involves services
by, such director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in
good
faith and in a manner he reasonably believed to be in the best interests of
the
participants and beneficiaries of an employee benefit plan shall be deemed
to
have acted in a manner “not opposed to the best interests of the Company” as
referred to in this Agreement.
(g) “Named
Executive Officer”
shall
have the meaning ascribed to such term in Item 402(a)(2) of Regulation S-B
of
the Securities Act of 1933, as amended.
(h) The
term
“Proceeding”
shall
include 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, in which Indemnitee was, is or will
be
involved as a party or otherwise by reason of the fact that Indemnitee is or
was
a director or Named Executive Officer of the Company, by reason of any action
taken by him or of any inaction on his part while acting as a director or Named
Executive Officer of the Company, or by reason of the fact that he is or was
serving at the request of the Company as a director, officer, trustee, general
partner, managing member, fiduciary, employee or agent of any other Enterprise,
in each case whether or not serving in such capacity at the time any liability
or expense is incurred for which indemnification, reimbursement, or advancement
of expenses can be provided under this Agreement.
12. Modification
and Waiver.
No
supplement, modification or amendment 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
provisions of this Agreement nor shall any waiver constitute a continuing
waiver.
13. Notices.
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given (a) upon personal
delivery to the party to be notified, (b) when sent by confirmed facsimile if
sent during normal business hours of the recipient, and if not so confirmed,
then on the next business day, (c) five (5) business days after having been
sent
by registered or certified mail, return receipt requested, postage prepaid,
or
(d) one (1) business day after deposit with a nationally recognized overnight
courier, specifying next business day delivery, with written verification of
receipt. All communications shall be sent:
(i) If
to
Indemnitee, at the address indicated on the signature page of this Agreement,
or
such other address as Indemnitee shall provide in writing to the Company.
-8-
(ii) If
to the
Company to:
BPO
Management Services, Inc.
0000
X.
Xxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxxx 00000
Attention:
Chairman & CEO
Facsimile
No.: (000) 000-0000
with
copies to (which copies shall not constitute notice):
Xxxxx
Xxxx LLP
0000
Xxxx
Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxxxx X. Xxxx, Esq.
Facsimile
No.: (000) 000-0000
and
Xxxxxxx
& Xxxxxx
00000
XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxx X. Xxxxxxx, Esq.
Facsimile
No.: (000) 000-0000
or
to any
other address as may have been furnished to Indemnitee in writing by the
Company.
14. Contribution.
To the
fullest extent permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to Indemnitee in whole or in part for
any
reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall
contribute to the amount incurred by Indemnitee, whether for judgments, fines,
penalties, excise taxes, amounts paid or to be paid in settlement and/or for
Expenses, in connection with any claim relating to an indemnifiable event under
this Agreement, in such proportion as is deemed fair and reasonable in light
of
all of the circumstances of such Proceeding in order to reflect (i) the relative
benefits received by the Company and Indemnitee as a result of the event(s)
and/or transaction(s) giving cause to such Proceeding; and (ii) the relative
fault of the Company (and its directors, officers, employees and agents) and
Indemnitee in connection with such event(s) and/or transaction(s).
15. Applicable
Law and Consent to Jurisdiction.
This
Agreement and the legal relations among the parties shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to its conflict of laws rules. The Company and Indemnitee hereby
irrevocably and unconditionally (i) agree that any action or proceeding arising
out of or in connection with this Agreement shall be brought only in the Court
of Chancery of the State of Delaware (the “Delaware
Court”),
and
not in any other state or federal court in the United States of America or
any
court in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action or proceeding arising out
of or
in connection with this Agreement, (iii) appoint, to the extent such party
is
not a resident of
-9-
the
State
of Delaware, irrevocably ___________________________ as its agent in the State
of Delaware as such party’s agent for acceptance of legal process in connection
with any such action or proceeding against such party with the same legal force
and validity as if served upon such party personally within the State of
Delaware, (iv) waive any objection to the laying of venue of any such action
or
proceeding in the Delaware Court, and (v) waive, and agree not to plead or
to
make, any claim that any such action or proceeding brought in the Delaware
Court
has been brought in an improper or inconvenient forum.
16. Identical
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 one and the same Agreement.
17. Miscellaneous.
Use of
the masculine pronoun shall be deemed to include usage of the feminine pronoun
where appropriate. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
-10-
IN
WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement
on and as of the day and year first above written.
BPO
MANAGEMENT SERVICES, INC.
By:
Name:
Title:
-11-
IN
WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement
on and as of the day and year first above written.
DIRECTOR:
______________________________________
Name:
Address:
__________________________
__________________________
__________________________
[SIGNATURE
PAGE TO INDEMNIFICATION AGREEMENT - DIRECTOR]
-12-
