EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
THIS AGREEMENT, made and entered into as of this __th day of July, 2002
("Agreement"), by and between MaxWorldwide, Inc., a Delaware corporation (the
"Corporation," which term shall include any one or more of its subsidiaries
where appropriate), and _________________ ("Indemnitee"):
WHEREAS, highly competent persons are becoming more reluctant to serve
corporations as directors or officers or in other capacities unless they are
provided with adequate protection through insurance and/or adequate
indemnification against inordinate risks of claims and actions against them
arising out of their service to, and activities on behalf of, such corporations;
and
WHEREAS, the Board of Directors of the Corporation (the "Board") has
determined that the difficulty in attracting and retaining such persons is
detrimental to the best interests of the Corporation's stockholders and that the
Corporation 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 Corporation
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Corporation free from undue concern that they will not be so indemnified; and
WHEREAS, Indemnitee is willing to serve, continue to serve and/or to
undertake additional service for or on behalf of the Corporation on the
condition that Indemnitee be so indemnified;
NOW, THEREFORE, in consideration of the promises and the covenants
contained herein, the Corporation and Indemnitee do hereby covenant and agree as
follows:
1. Services by Indemnitee. Indemnitee agrees to serve or continue to
serve as a director and/or officer of the Corporation for so long as Indemnitee
is duly elected or appointed and qualified or until such time as Indemnitee
(subject to any contractual obligation or any obligation imposed by operation of
law) tenders his resignation in writing or is removed as a director and/or
officer. This Agreement shall not impose any obligation on the Indemnitee or the
Corporation to continue the Indemnitee's position with the Corporation beyond
any period otherwise applicable.
2. General. The Corporation shall indemnify and hold harmless, and
shall advance Expenses (as hereinafter defined) to, Indemnitee as provided in
this Agreement and to the fullest extent permitted by law in effect on the date
hereof and to such greater extent as applicable law may thereafter from time to
time permit.
3. Proceedings Other Than Proceedings by or in the Right of the
Corporation. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 3 if, wholly or partly by reason of his Corporate
Status (as hereinafter defined), Indemnitee is, or is threatened to be made, a
party to or otherwise becomes involved (as a witness or otherwise) in any
threatened, pending or completed Proceeding (as hereinafter defined), other than
a Proceeding by or in the right of the Corporation. Pursuant to this Section 3,
Indemnitee shall be indemnified and held harmless against all Expenses,
liabilities and losses (including without limitation, judgments, fines, ERISA
excise taxes and penalties, amounts paid and to be paid in settlement, interest,
assessments or other charges imposed thereon, and any federal, state, local and
foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt
of any payments under this Section 3) actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in connection with such Proceeding or any
claim, issue or matter therein, if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal Proceeding, had
no reasonable cause to believe his conduct was unlawful.
4. Proceedings by or in the Right of the Corporation. Indemnitee shall
be entitled to the rights of indemnification provided in this Section 4 if, by
reason of Indemnitee's Corporate Status, Indemnitee is, or is threatened to be
made, a party to any threatened, pending or completed Proceeding brought by or
in the right of the Corporation to procure a judgment in its favor. Pursuant to
this Section 4, Indemnitee shall be indemnified and held harmless against
Expenses (as well as against any federal, state, local and foreign taxes imposed
on Indemnitee as a result of the actual or deemed receipt of any payments under
this Section 4) actually and reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with such Proceeding if Indemnitee acted in
good faith and in a manner Indemnitee believed to be in or not opposed to the
best interests of the Corporation and its stockholders. Notwithstanding the
foregoing, no indemnification against such Expenses shall be made in respect of
any claim, issue or matter as to which Indemnitee shall have been adjudged to be
liable to the Corporation if such indemnification is not permitted by Delaware
or other applicable law; provided, however, that indemnification against
Expenses shall nevertheless be made by the Corporation in such event to the
extent that the Court of Chancery of the State of Delaware or the court in which
such proceeding shall have been brought or is pending, shall determine.
5. 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 and held harmless against all Expenses (as well as against any
federal, state, local and foreign taxes imposed on Indemnitee as a result of the
actual or deemed receipt of any payments under this Section 5) actually and
reasonably incurred by Indemnitee or on Indemnitee's
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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 Corporation
shall indemnify and hold harmless Indemnitee against all Expenses (as well as
against any federal, state, local and foreign taxes imposed on Indemnitee as a
result of the actual or deemed receipt of any payments under this Section 5)
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection with each successfully resolved claim, issue or matter. For purposes
of this Section 5 and without limitation, the termination of any claim, issue or
matter in such a Proceeding by dismissal or withdrawal with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
6. Advance of Expenses. The Corporation shall advance all reasonable
Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding within twenty (20) days after the receipt by the Corporation of a
statement or statements from Indemnitee requesting such advance or advances from
time to time, whether prior to or after final disposition of such 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.
7. Procedure for Determination of Entitlement to Indemnification.
(a) To obtain indemnification under this Agreement, Indemnitee shall
submit to the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee and is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Secretary of the Corporation 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 7(a) hereof, a determination, if required by applicable law, with
respect to Indemnitee's entitlement thereto shall be made in the specific case:
(i) if a Change in Control (as hereinafter defined) shall have occurred, by
Independent Counsel (as hereinafter defined) in a written opinion to the Board,
a copy of which shall be delivered to Indemnitee (unless Indemnitee shall
request that such determination be made by the Board or the stockholders, in
which case the determination shall be made in the manner provided below in
clause (ii) or (iii) of this Section 7(b)); (ii) if a Change of Control shall
not have occurred, (A) by the Board by a majority vote of the Disinterested
Directors (as hereinafter defined), even though less than a quorum, (B) if no
Disinterested Directors exist, or even if Disinterested Directors exist, if such
Disinterested Directors so direct, by Independent Counsel in a written opinion
to the Board, a copy of which shall
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be delivered to Indemnitee, or (C) by the stockholders of the Corporation; or
(iii) as provided in Section 8(b) of this Agreement; and, if it is so determined
that Indemnitee is entitled to indemnification, payment to Indemnitee shall be
made within ten (10) days after such determination. Indemnitee shall cooperate
with the person, persons or entity making such determination with respect to
Indemnitee's entitlement to indemnification, including providing to such person,
persons or entity upon reasonable advance request any documentation or
information that is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys' fees and
disbursements) incurred by Indemnitee in so cooperating shall be borne by the
Corporation (irrespective of the determination as to Indemnitee's entitlement to
indemnification), and the Corporation hereby indemnifies and agrees to hold
harmless Indemnitee therefrom.
(c) If the determination of entitlement to indemnification is to be
made by Independent Counsel pursuant to Section 7(b) of this Agreement, the
Independent Counsel shall be selected as provided in this Section 7(c). If a
Change of Control shall not have occurred, the Independent Counsel shall be
selected by the Board, and the Corporation shall give written notice to
Indemnitee advising Indemnitee of the identity of the Independent Counsel so
selected. If a Change of Control shall have occurred, the Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request that such
selection be made by the Board, in which event the preceding sentence shall
apply), and Indemnitee shall give written notice to the Corporation advising it
of the identity of the Independent Counsel so selected. In either event,
Indemnitee or the Corporation, as the case may be, may, within seven (7) days
after such written notice of selection shall have been given, deliver to the
Corporation or to Indemnitee, as the case may be, a written objection to such
selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirement of "Independent
Counsel" as defined in Section 14 of this Agreement, and the objection shall set
forth with particularity the factual basis of such assertion. If such written
objection is made, the Independent Counsel so selected may not serve as
Independent Counsel unless and until a court 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 7(a) of this
Agreement, no Independent Counsel shall have been selected or, if selected,
shall have been objected to, in accordance with this Section 7(c), either the
Corporation or Indemnitee may petition the Court of Chancery of the State of
Delaware or other court of competent jurisdiction for resolution of any
objection that shall have been made by the Corporation or Indemnitee to the
other'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 an objection is
favorably resolved or the person so appointed shall act as Independent Counsel
under Section 7(b) of this Agreement. The Corporation shall pay any and all
reasonable fees and expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to Section 7(b) of this Agreement,
and the Corporation shall pay all reasonable fees and expenses
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incident to the procedures of this Section 7(c), regardless of the manner in
which such Independent Counsel was selected or appointed. Upon the due
commencement of any judicial proceeding or arbitration pursuant to Section
9(a)(iii) of this Agreement, Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
8. Presumptions and Effect of Certain Proceedings.
(a) If a Change of Control shall have occurred, in making a
determination with respect to entitlement to indemnification hereunder, the
person, 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 7(a) of this
Agreement, and the Corporation 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.
(b) If the person, persons or entity empowered or selected under
Section 7 of this Agreement to determine whether Indemnitee is entitled to
indemnification shall not have made such determination within sixty (60) days
after receipt by the Corporation of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made, and Indemnitee shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee's statement not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; provided, however, that such sixty-day
period may be extended for a reasonable time, not to exceed an additional thirty
(30) days, if the person, persons or entity making the determination with
respect to entitlement to indemnification in good faith requires such additional
time for the obtaining or evaluating of documentation and/or information
relating thereto; and provided, further, that the foregoing provisions of this
Section 8(b) shall not apply (i) if the determination of entitlement to
indemnification is to be made by the stockholders pursuant to Section 7(b) of
this Agreement and if (A) within fifteen (15) days after receipt by the
Corporation of the request for such determination the Board has resolved to
submit such determination to the stockholders for their consideration at an
annual meeting thereof to be held within seventy-five (75) days after such
receipt and such determination is made thereat, or (B) a special meeting of
stockholders is called within fifteen (15) days after such receipt for the
purpose of making such determination, such meeting is held for such purpose
within sixty (60) days after having been so called and such determination is
made thereat, or (ii) if the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to Section 7(b) of this Agreement.
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(c) 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 adversely affect the right of Indemnitee
to indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner that Indemnitee reasonably believed to be in or not
opposed to the best interests of the Corporation or, with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to believe that
Indemnitee's conduct was unlawful.
9. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to Section 7 of this
Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 6
of this Agreement, (iii) the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to Section 7(b) of this Agreement and
such determination shall not have been made and delivered in a written opinion
within ninety (90) days after receipt by the Corporation of the request for
indemnification, (iv) payment of indemnification is not made pursuant to Section
5 of this Agreement within ten (10) days after receipt by the Corporation of a
written request therefor or (v) payment of indemnification is not made within
ten (10) days after a determination has been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to
Section 7 or 8 of this Agreement, Indemnitee shall be entitled to an
adjudication in the Court of Chancery of the State of Delaware, or in any other
court of competent jurisdiction, of his entitlement to such indemnification or
advancement of Expenses. Alternatively, Indemnitee, at Indemnitee's option, may
seek an award in arbitration to be conducted by a single arbitrator, pursuant to
the rules of the American Arbitration Association. Indemnitee shall commence
such proceeding seeking an adjudication or an award in arbitration within one
hundred eighty (180) days following the date on which Indemnitee first has the
right to commence such proceeding pursuant to this Section 9(a). The Corporation
shall not oppose Indemnitee's right to any such adjudication or award in
arbitration.
(b) In the event that a determination shall have been made pursuant
to Section 7 of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 9 shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. If a Change of Control shall have occurred, in any
judicial proceeding or arbitration commenced pursuant to this Section 9, the
Corporation shall have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have been
made pursuant to Section 7 or 8 of this Agreement that Indemnitee is entitled to
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indemnification, the Corporation shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 9, absent
(i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee's statement not materially
misleading, in connection with the request for indemnification or (ii) a
prohibition of such indemnification under applicable law.
(d) The Corporation shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 9 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Corporation is bound by all the provisions of this Agreement.
(e) If Indemnitee, pursuant to this Section 9, seeks a judicial
adjudication of or an award in arbitration to enforce Indemnitee's rights under,
or to recover damages for breach of, this Agreement, Indemnitee shall be
entitled to recover from the Corporation, and shall be indemnified by the
Corporation against, any and all expenses (of the types described in the
definition of Expenses in Section 14 of this Agreement) actually and reasonably
incurred by Indemnitee in such judicial adjudication or arbitration, but only if
Indemnitee prevails therein. If it shall be determined in said judicial
adjudication or arbitration that Indemnitee is entitled to receive part but not
all of the indemnification or advancement of Expenses sought, the expenses
incurred by Indemnitee in connection with such judicial adjudication or
arbitration shall be appropriately prorated.
10. Security. To the extent requested by the Indemnitee and approved by
the Board, the Corporation may at any time and from time to time provide
security to the Indemnitee for the Corporation's obligations hereunder through
an irrevocable bank line of credit, funded trust or other collateral. Any such
security, once provided to the Indemnitee, may not be revoked or released
without the prior written consent of Indemnitee.
11. Non-Exclusivity; Duration of Agreement; Insurance; Subrogation.
(a) The rights to be indemnified 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 Corporation's Certificate of Incorporation or Bylaws, any other
agreement, a vote of stockholders or a resolution of directors, or otherwise.
This Agreement shall continue until, and terminate upon, the later of: (a) ten
(10) years after the date that Indemnitee shall have ceased to serve as a
director and officer of the Corporation or fiduciary of any other domestic or
foreign corporation, partnership, joint venture, limited liability company,
trust, employee benefit plan or other enterprise that Indemnitee served at the
request of the Corporation; or (b) the final termination of all pending
Proceedings in
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respect of which Indemnitee is granted rights of indemnification or advancement
of Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 9 of this Agreement relating thereto. This Agreement shall be binding
upon the Corporation and its successors and assigns and shall inure to the
benefit of Indemnitee and Indemnitee's heirs, executors and administrators.
(b) If the Corporation maintains an insurance policy or policies
providing liability insurance for directors or officers of the Corporation or
fiduciaries of any other domestic or foreign corporation, partnership, joint
venture, limited liability company, trust, employee benefit plan or other
enterprise that such person serves at the request of the Corporation, Indemnitee
shall be covered by such policy or policies in accordance with the terms thereof
to the maximum extent of the coverage available for any such director or officer
under such policy or policies.
(c) If any payment is made under this Agreement, the Corporation
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 Corporation to bring suit to enforce such rights.
(d) The Corporation shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable hereunder if and to the extent
that Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
12. Severability. If any provision or 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 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 (b) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, each
portion of any Section 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
by the provision held invalid, illegal or unenforceable.
13. Exception to Right of Indemnification or Advancement of Expenses.
Notwithstanding any other provision of this Agreement, Indemnitee shall not be
entitled to indemnification or advancement of Expenses under this Agreement with
respect to any Proceeding, or any claim, issue or matter therein, brought or
made by Indemnitee against the Corporation, except as may be provided in Section
9(e) of this Agreement.
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14. Definitions. For purposes of this Agreement:
(a) "Change in Control" means a change in control of the Corporation
of a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in response to any similar item or any
similar schedule or form) promulgated under the Securities Exchange Act of 1934,
as amended (the "Act"), whether or not the Corporation is then subject to such
reporting requirement; provided, however, that, without limitation, such a
Change in Control shall be deemed to have occurred if (i) any "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the Act) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Corporation representing 20% or
more of the combined voting power of the Corporation's then outstanding
securities without the prior approval of at least two-thirds of the members of
the Board in office immediately prior to such person attaining such percentage
interest; (ii) the Corporation is a party to a merger, consolidation, sale of
assets or other reorganization, or a proxy contest, as a consequence of which
members of the Board in office immediately prior to such transaction or event
constitute less than a majority of the Board thereafter; or (iii) during any
period of two (2) consecutive years, individuals who at the beginning of such
period constituted the Board (including for this purpose any new director whose
election or nomination for election by the Corporation's stockholders was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board.
(b) "Corporate Status" describes the status of a person who is or
was or has agreed to become a director of the Corporation, or is or was an
officer, employee, agent or fiduciary of the Corporation or of any other
domestic or foreign corporation, partnership, joint venture, limited liability
company, trust, employee benefit plan or other enterprise that such person is or
was serving at the request of the Corporation.
(c) "Disinterested Director" means a director of the Corporation who
is not and was not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(d) "Expenses" shall include all reasonable attorneys' fees and
expenses, retainers, court costs, transcript costs, fees and expenses of experts
and witnesses, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other disbursements
or expenses of the type customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, being a witness in or investigating
a Proceeding.
(e) "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither at the time
of designation is, nor in the five years immediately preceding such designation
was, retained
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to represent: (i) the Corporation or Indemnitee in any matter material to either
such party or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term "Independent
Counsel" shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Corporation or Indemnitee in an action to determine
Indemnitee's rights under this Agreement arising on or after the date of this
Agreement, regardless of when the Indemnitee's act or failure to act occurred.
(f) "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing and any
other proceeding (including any appeals from any of the foregoing) whether
civil, criminal, administrative or investigative, except one initiated by
Indemnitee pursuant to Section 9 of this Agreement to enforce Indemnitee's
rights under this Agreement.
15. Headings. The headings of the sections of this Agreement are
inserted for convenience of reference only and shall not be deemed to constitute
part of this Agreement or to affect the construction thereof.
16. Modification and Waiver. This Agreement may be amended from time to
time to reflect changes in Delaware law or for other reasons. No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by both of the parties hereto. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
17. Notice by Indemnitee. Indemnitee agrees promptly to notify the
Corporation in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter that may be subject to indemnification or advancement of Expenses
covered hereunder; provided, however, that the failure to give any such notice
shall not disqualify the Indemnitee from indemnification hereunder.
18. 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 and receipted for by the party to whom said notice or other
communication shall have been directed, at the time of delivery, or (ii) if
mailed by certified mail (return receipt requested) with postage prepaid, on the
third business day after the date on which it is so mailed, and addressed:
(a) if to Indemnitee, to:
_____________________
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(b) if to the Corporation, to:
MaxWorldwide, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
or to such other address as may have been furnished by like notice to Indemnitee
by the Corporation or to the Corporation by Indemnitee, as the case may be.
19. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware applicable to contracts made and to be performed in such state
without giving effect to the principles of conflicts of laws.
[Execution Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above set forth.
MAXWORLDWIDE, INC.
By:
--------------------------------
An Authorized Officer
INDEMNITEE
By:
--------------------------------
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