EXHIBIT 99.1
INDEMNIFICATION AGREEMENT
AGREEMENT, made this 3rd day of November, 2004, between Xxxxxx Xxxxxxx
Ltd., a Bermuda company (the "Company"), _______________ (the "Indemnitee").
BACKGROUND:
A. The Indemnitee is a director and/or officer of the Company.
B. Highly competent persons have become more reluctant to serve
publicly-held companies as directors or in other capacities unless they are
provided with adequate protection through insurance and indemnification against
inordinate risks of claims and actions against them arising out of their service
to and activities on behalf of such companies.
C. Uncertainties relating to indemnification increase the difficulty of
attracting and retaining such persons.
D. The Board has determined that an inability to attract and retain such
persons is detrimental to the best interests of the Company and that the Company
should act to assure such persons that there will be increased certainty of such
protection in the future.
E. In recognition of Indemnitee's need for substantial protection against
personal liability in order to secure Indemnitee's continued service to the
Company and Indemnitee's reliance on the indemnity provisions of the Company's
Bye-Laws (the "Bye-Laws") contained in the Bye-Law 27 requiring indemnification
of the Indemnitee to the fullest extent permitted by law, and in part to provide
Indemnitee with specific contractual assurance that the protection promised by
such Bye-Law will be available to Indemnitee (regardless of, among other things,
any amendment to or revocation of such Bye-Law or any change in the composition
of the Company's Board of Directors (the "Board") or acquisition transaction
relating to the Company), the Company wishes to provide in this Agreement for
the indemnification of and the advancing of expenses to Indemnitee to the
fullest extent (whether partial or complete) permitted by law and as set forth
in this Agreement.
F. The Companies Act 1981 of Bermuda ("CA") expressly contemplates that
contracts may be entered into between the Company and members of the Board and
officers of the Company with respect to indemnification
G. It is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of Indemnitee to
the fullest extent permitted by applicable law so that Indemnitee will serve or
continue to serve the Company free from undue concern that Indemnitee will not
be so indemnified.
H. Indemnitee is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition that
Indemnitee be so indemnified.
I. This Agreement is a supplement to and in furtherance of the Bye-Laws and
any resolutions adopted pursuant thereto and shall not be deemed a substitute
therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
AGREEMENT:
Section 1. Agreement to Serve. Indemnitee agrees to continue to serve as a
director/officer of the Company. This Agreement does not create or otherwise
establish any right on the part of Indemnitee to be and continue to be elected
or appointed a director/officer of the Company or any other Group Company and
does not create an employment contract between the Company and Indemnitee.
Section 2. Basic Indemnification Agreement. (a) Subject to section 9, the
Company shall indemnify Indemnitee if Indemnitee was (in Indemnitee's capacity
as a director/officer), is or becomes a party to or witness or other participant
in, or is threatened to be made a party to or witness or other participant in, a
Claim (as defined in Section 11(f) herein) by reason of (or arising in part out
of) an Indemnifiable Event (as defined in Section 11(j) herein), such indemnity
to be to the fullest extent permitted by law as soon as practicable but in any
event no later than 30 Business Days after written demand is presented to the
Company, such indemnity to include indemnity against any and all Expenses (as
defined in Section 11(h) herein), judgments, fines, penalties and amounts paid
in settlement (including all interest, assessments and other charges paid or
payable in connection therewith) of such Claim actually and reasonably incurred
by or on behalf of Indemnitee in connection with such Claim and any federal,
state, local or foreign taxes imposed on Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement. If requested by Indemnitee
in writing, the Company shall advance (within 10 Business Days of such written
request) any and all Expenses to Indemnitee (an "Expense Advance").
Notwithstanding anything in this Agreement to the contrary, prior to a Change of
Control (as defined in Section 11(e) herein), and except as provided in Sections
2 (b), 4 and 8, Indemnitee shall not be entitled to indemnification pursuant to
this Agreement in connection with any Claim (i) initiated by Indemnitee against
the Company or any director or officer of the Company unless the Company has
joined in or consented to the initiation of such Claim; (ii) made on account of
Indemnitee's conduct which constitutes a breach of Indemnitee's duty of loyalty
to the Company or its shareholders or is an act or omission not in good faith or
which involves intentional misconduct or a knowing violation of the law; or
(iii) arising from the purchase and sale by Indemnitee of securities in
violation of Section 16(b) of the Securities Exchange Act of 1934, as amended.
(b) Notwithstanding the foregoing, (i) the indemnification obligations of
the Company under Section 2(a) shall be subject to the condition that the
Reviewing Party shall not have determined (in a written opinion, in any case in
which the special independent counsel referred to in Section 3 hereof is
involved) that Indemnitee would not be permitted to be indemnified under
applicable law, and (ii) the obligation of the Company to make an Expense
Advance pursuant to Section 2(a) shall be subject to the condition that the
Company receives an undertaking that, if, when and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be reimbursed
by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if Indemnitee has commenced legal
proceedings in a court as specified in Section 18 herein (a "Court") to secure a
determination that Indemnitee should be indemnified under applicable law, any
determination made by the Reviewing Party that Indemnitee would not be permitted
to be indemnified under applicable law shall not be binding and Indemnitee shall
not be required to reimburse the Company for any Expense Advance until a final
judicial determination is made with respect thereto (as to which all rights of
appeal therefrom have been exhausted or lapsed). Indemnitee's obligation to
reimburse the Company for Expense Advances shall be unsecured and no interest
shall be charged thereon. If there has not been a Change in Control, the
Reviewing Party shall be selected by the Board, and if there has been such a
Change in Control, the Reviewing Party shall be the special independent counsel
referred to in Section 3 hereof. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that Indemnitee
substantively would not be permitted to be indemnified in whole or in part under
applicable law, Indemnitee shall have the right to commence litigation in a
Court seeking an initial determination by such Court or challenging any such
determination by the Reviewing Party or any aspect thereof and the Company
hereby consents to service of process and to appear in any such proceeding. Any
determination by the Reviewing Party otherwise shall be conclusive and binding
on the Company and Indemnitee. The Company shall indemnify Indemnitee for
Expenses incurred by Indemnitee in connection with the successful establishment
or enforcement, in whole or in part, by Indemnitee of Indemnitee's right to
indemnification or advances.
(c) Notwithstanding any other provision of this Agreement other than
Section 10, Indemnitee shall be indemnified against all expenses (including
attorneys' fees and disbursements) actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in defending any Claim referred to in
Section 1 (a) in which judgment is given in his favour, in which he is
acquitted, or in respect of which relief is granted to him by the Supreme Court
of Bermuda (the "Bermuda Court") under section 281 of the CA.
(d) Without limiting the scope of the indemnity provided under any other
provision of this Agreement, if the Indemnitee has reason to apprehend that any
claim will or might be made against him in respect of any negligence, default,
breach of duty or breach of trust, he may apply to the Bermuda Court for relief
pursuant to section 281 of the CA and, to the extent that the Bermuda Court
relieves him, either wholly or partly, from his liability in accordance with
section 281 of the CA, the Indemnitee shall be indemnified against any liability
incurred by him in defending any Claim in accordance with paragraph 98(2)(b) of
the CA.
Section 3. Change in Control. The Company agrees that if there is a Change
in Control of the Company (other than a Change in Control which has been
approved by two- thirds or more of the Board who were directors immediately
prior to such Change in Control) then with respect to all matters thereafter
arising concerning the rights of Indemnitee to indemnity payments and Expense
Advances under this Agreement or any other agreement, or the Bye-Laws now or
hereafter in effect relating to Claims for Indemnifiable Events, the Company
shall seek legal advice only from special independent counsel selected by
Indemnitee and approved by the Company (which approval shall not be unreasonably
withheld or delayed) and who has not otherwise performed services for the
Company within the last five years (other than in connection with such matters)
or for Indemnitee or any other party to the claim. In the event that Indemnitee
and the Company are unable to agree on the selection of the special independent
counsel, such special independent counsel shall be selected by lot from among at
least three law firms with offices in Bermuda having more than 10 attorneys, and
having attorneys who specialize in corporate law. Such selection shall be made
in the presence of Indemnitee (and his legal counsel or either of them, as
Indemnitee may elect). Such counsel, among other things, shall, within 90 days
of its retention, render its written opinion to the Company and Indemnitee as to
whether and to what extent Indemnitee would be permitted to be indemnified under
applicable law. The Company agrees to pay the reasonable fees of the special
independent counsel referred to above and to fully indemnify such counsel
against any and all expenses (including attorneys' fees), claims, liabilities,
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
Section 4. Additional Expenses/Expense Advance. The Company shall indemnify
Indemnitee against any and all expenses (including attorneys' fees) and, if
requested by Indemnitee in writing, shall (within 10 Business Days of such
written request) advance such expenses to Indemnitee, which are incurred by
Indemnitee in connection with any Claim asserted against or action brought by
Indemnitee for (i) indemnification or advance payment of Expenses by the Company
under this Agreement or any other agreement, the Bye-Laws now or hereafter in
effect relating to Claims for Indemnifiable Events and/or (ii) recovery under
any directors' and officers' liability insurance policies maintained by the
Company, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advance expense payment or insurance recovery,
as the case may be. The Indemnitee shall qualify for advances solely upon the
execution and delivery to the Company of an undertaking providing that the
Indemnitee undertakes to repay the advance to the extent that it is ultimately
determined that the Indemnitee is not entitled to be indemnified by the Company.
No amounts advanced hereunder shall be deemed to be an extension of credit by
the Company to the Indemnitee. Upon Indemnitee's request for indemnification or
Expense Advance, Indemnitee shall be presumed to be entitled to
indemnification/Expense Advance hereunder and the Company shall have the burden
of proof in the making of any determination contrary to such presumption.
Section 5. Partial Indemnity, Etc. Subject to Section 10, if Indemnitee is
entitled under any provisions of this Agreement to indemnification by the
Company of some or a portion of the Expenses, liabilities, judgments, fines,
penalties and amounts paid in settlement of a Claim but not, however, for all of
the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any or
all Claims relating in whole or in part to an Indemnifiable Event or in defense
of any issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith. In connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified hereunder the
burden of proof shall be on the Company to establish that Indemnitee is not so
entitled.
Section 6. No Presumption. For purposes of this Agreement, the termination
of any action, suit or proceeding by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of nolo contendere, or
its equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief.
Section 7. Notification and Defense of Claim. Within 30 days after receipt
by Indemnitee of notice of the commencement of a Claim which may involve an
Indemnifiable Event, Indemnitee will, if a claim in respect thereof is to be
made against the Company under this Agreement, submit to the Company a written
notice identifying the proceeding, but the omission so to notify the Company
will not relieve it from any liability which it may have to Indemnitee under
this Agreement unless the Company is materially prejudiced by such lack of
notice. With respect to any such Claim as to which Indemnitee notifies the
Company of the commencement thereof:
(a) the Company will be entitled to participate therein at its own expense;
(b) except as otherwise provided below, to the extent that it may wish, the
Company jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel selected by the Board and
reasonably satisfactory to Indemnitee. After notice from the Company to
Indemnitee of its election to assume the defense thereof, the Company will not
be liable to Indemnitee under this Agreement for any legal or other expenses
subsequently incurred by Indemnitee in connection with the defense thereof other
than reasonable costs of investigation or as otherwise provided below.
Indemnitee shall have the right to employ counsel in such action, suit or
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
Indemnitee unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) in the reasonable opinion of counsel to the
Indemnitee there may be a conflict of interest between the Company and the
Indemnitee in the conduct of the defense of such action, or (iii) the Company
shall not in fact have employed counsel to assume the defense of such action, in
each of which cases (subject to Section 10) the fees and expenses of counsel
shall be at the expense of the Company. The Company shall not be entitled to
assume the defense of any claim brought by or on behalf of the Company or as to
which Indemnitee shall have made the conclusion provided for in clause (ii)
above; and
(c) the Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. The Company shall not settle any action or claim in
any manner which would impose any penalty or limitation on Indemnitee without
Indemnitee's written consent. Neither the Company nor Indemnitee will
unreasonably withhold or delay their consent to any proposed settlement.
Section 8. Non-exclusivity, Etc. The rights of Indemnitee hereunder shall
be in addition to any other rights Indemnitee may have under the Bye-Laws, the
CA, any agreement, a vote of the Company shareholders, a resolution of the Board
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 acting on
behalf of the Company and at the request of the Company prior to such amendment,
alteration or repeal. To the extent that a change in the CA (whether by statute
or judicial decision) or the Bye-Laws permits greater indemnification by
agreement than would be afforded currently under the Bye-Laws and this
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits so afforded by such change. No right or
remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
Section 9. Liability Insurance. To the extent the Company maintains an
insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee shall be covered by such policy or policies in accordance
with its or their terms to the maximum extent of the coverage available for any
Company director or officer. If, at the time the Company receives notice from
any source of a Claim as to which Indemnitee is a party or a participant (as a
witness or otherwise), the Company has director and officer 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 necessary or desirable action to cause
such insurers to pay, on behalf of the Indemnitee, all amounts payable as a
result of such Claim in accordance with the terms of such policies. In the event
of a Potential Change in Control (as defined in Section 11(e) herein), the
Company shall maintain in force any and all insurance policies then maintained
by the Company providing directors' and officers' liability insurance, in
respect of Indemnitee, for a period of six years thereafter. The Company shall
indemnify Indemnitee for Expenses incurred by Indemnitee in connection with any
successful action brought by Indemnitee for recovery under any insurance policy
referred to in this Section 9 and shall advance to Indemnitee the Expenses of
such action in the manner provided in Section 4 above.
Section 10. Limitation of Indemnification. Notwithstanding any other terms
of this Agreement, nothing herein shall indemnify the Indemnitee against, or
exempt Indemnitee from, any liability in respect of the Indemnitee's fraud or
dishonesty.
Section 11. Certain Definitions.
(a) "Bermuda Court" has the meaning assigned in Section 2(b).
(b) "Business Day" means any day when the banks in New York and Bermuda are
open for business.
(c) The "Board" means the board of directors of the Company.
(d) "CA" has the meaning assigned in Recital F.
(e) "Change in Control" shall be deemed to have occurred if:
(1) any person, as that term is used in Section 13(d) and Section 14(d)(2)
of the Exchange Act, becomes, is discovered to be, or files a report
on Schedule 13D or 14D-1 (or any successor schedule, form or report)
disclosing that such person is a beneficial owner (as defined in Rule
13d-3 under the Exchange Act or any successor rule or regulation),
directly or indirectly, of securities of the Company representing 20%
or more of the total voting power of the Company's then outstanding
Voting Securities (unless such person becomes such a beneficial owner
in connection with the initial public offering of the Company);
(2) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board and any new director
whose election by the Board or nomination for election by the
Company's shareholders was approved by a vote of at least two-thirds
of the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute a
majority thereof;
(3) the Company, or any material subsidiary of the Company, is merged,
amalgamated, consolidated or reorganized into or with another company,
corporation or other legal person (an "Acquiring Person") or
securities of the Company are exchanged for securities of an Acquiring
Person, and immediately after such merger, amalgamation,
consolidation, reorganization or exchange less than a majority of the
combined voting power of the then outstanding securities of the
Acquiring Person immediately after such transaction are held, directly
or indirectly, in the aggregate by the holders of Voting Securities
immediately prior to such transaction;
(4) any Group Company, in any transaction or series of related
transactions, sells or otherwise transfers all or substantially all of
its assets to an Acquiring Person, and less than a majority of the
combined voting power of the then outstanding securities of the
Acquiring Person immediately after such sale or transfer is held,
directly or indirectly, in the aggregate by the holders of Voting
Securities immediately prior to such sale or transfer;
(5) any Group Company, in any transaction or series of related
transactions, sells or otherwise transfers business operations that
generated two thirds or more of the consolidated revenues (determined
on the basis of the Group Companies four most recently completed
fiscal quarters) of the Group Company immediately prior thereto;
(6) the Company files a report or proxy statement with the Securities and
Exchange Commission pursuant to the Exchange Act disclosing that a
change in control of the Company has or may have occurred or will or
may occur in the future pursuant to any then existing contract or
transaction; or
(7) any other transaction or series of related transactions occur that
have substantially the effect of the transactions specified in any of
the preceding clauses in this Section 11(a).
Notwithstanding the provisions of Section 11(e)(1) or 11(e)(4), unless otherwise
determined in a specific case by majority vote of the Board, a Change of Control
shall not be deemed to have occurred for purposes of this Agreement solely
because (i) the Company, (ii) an entity in which the Company directly or
indirectly beneficially owns 50% or more of the voting securities or (iii) any
Company sponsored employee stock ownership plan, or any other employee benefit
plan of the Company, either files or becomes obligated to file a report or a
proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K
or Schedule 14A (or any successor schedule, form or report or item therein)
under the Exchange Act, disclosing beneficial ownership by it of shares of stock
of the Company, or because the Company reports that a Change in Control of the
Company has or may have occurred or will or may occur in the future by reason of
such beneficial ownership.
(f) "Claim" means any threatened, pending or completed action, suit,
proceeding or alternative dispute resolution mechanism, or any inquiry, hearing
or investigation whether conducted by the Company or any other party, whether
civil, criminal, administrative, investigative or other and whether formal or
informal.
(g) "Expense Advance" has the meaning assigned in Section 2(a).
(h) "Expenses" means attorneys' fees and all other costs, fees, expenses
and obligations of any nature whatsoever paid or incurred in connection with
investigating, defending, being a witness in or participating in (including
appeal), or preparing to defend, be a witness in or participate in any Claim
relating to any Indemnifiable Event.
(i) "Group Companies" means the Company and each subsidiary of the Company
(j) "Indemnifiable Event" means any event or occurrence (whether before or
after the date hereof) related to the fact that Indemnitee is or was a director,
officer, employee, consultant, agent or fiduciary of or to the Company, or any
subsidiary of the Company, or is or was serving at the request of the Company as
a director, officer, employee, trustee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, or by reason of anything done or not done by Indemnitee in any such
capacity.
(k) Potential Change in Control" will be deemed to have occurred if (i) the
Company enters into an agreement, the consummation of which would result in the
occurrence of a Change in Control; (ii) any person (including the Company)
publicly announces an intention to take or to consider taking actions which, if
consummated, would constitute a Change in Control; (iii) any person, other than
a trustee or other fiduciary holding securities under an employee benefit plan
of the Company or a corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions as their
ownership of shares of the Company, who is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing 9.5% or more
of the combined voting power of the Company's then outstanding Voting
Securities, increases such person's beneficial ownership of such securities by
five percentage points or more over the initial percentage of such securities;
or (iv) the Board adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control has occurred.
(l) "Reviewing Party" means (i) the Board (provided that a majority of
directors are not parties to the particular Claim for which Indemnitee is
seeking indemnification) or (ii) any other person or body appointed by the
Board, who is not a party to the particular Claim for which Indemnitee is
seeking indemnification, or (iii) if there has been a Change in Control, the
special independent counsel referred to in Section 3 hereof.
(m) "Voting Securities" means any securities of the Company which vote
generally in the election of directors to the Board.
Section 12. Amendments, Termination and Waiver. No supplement,
modification, amendment or termination 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 provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
Section 13. Contribution. If the indemnification provided in Sections 2 and
4 of this Agreement is unavailable, then, in respect of any Claim in which the
Company is jointly liable with Indemnitee (or would be if joined in the Claim),
the Company shall contribute to the amount of Expenses, judgments, fines,
penalties and amounts paid in settlement as appropriate to reflect: (i) the
relative benefits received by the Company, on the one hand, and Indemnitee, on
the other hand, from the transaction from which the Claim arose, and (ii) the
relative fault of the Company, on the one hand, and of Indemnitee, on the other,
in connection with the events which resulted in such Expenses, judgments, fines,
penalties and amounts paid in settlement, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of Indemnitee, on the other, shall be determined by reference to, among
other things, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent the circumstances resulting in such Expenses
and Liabilities. The Company agrees that it would not be just and equitable if
contribution pursuant to this Section 13 were determined by pro rata allocation
or any other method of allocation which does not take account of the equitable
considerations described in this Section 13.
Section 14. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
Section 15. No Duplication of Payments. The Company shall not be liable
under this Agreement to make any payment in connection with any Claim made
against Indemnitee to the extent Indemnitee has otherwise actually received
payment (under insurance policy or otherwise) of the amounts otherwise
indemnifiable hereunder.
Section 16. Binding Effect, Etc. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors, assigns, including any direct or indirect successor by
purchase, merger, amalgamation, consolidation or otherwise to all or
substantially all of the business or assets of the Company, spouse, heirs, and
personal and legal representatives. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as a director or officer (or
in one of the capacities enumerated in Section 10(d) hereof) of the Company or
of any other enterprise at the Board's request.
Section 17. Severability. The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest extent permitted by
law.
Section 18. 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 Bermuda, 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 any state or federal court in the State
of New Jersey, United States of America and not in any court in any other
country, (ii) consent to submit to the exclusive jurisdiction of such courts for
purposes of any action or proceeding arising out of or in connection with this
Agreement, (iii) appoint, irrevocably, to the extent such party is not a
resident of New Jersey, United States of America, specify agent for service in
New Jersey as its agent in New Jersey, United States of America 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 New Jersey, United States of America,
(iv) waive any objection to the laying of venue of any such action or proceeding
in the New Jersey, United States of America, and (v) waive, and agree not to
plead or to make, any claim that any such action or proceeding brought in the
such courts has been brought in an improper or inconvenient forum.
Section 19. 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.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
Executed this 3rd day of November, 2004.
Xxxxxx Xxxxxxx Ltd.
By:
Xxxxxx X. Xxxxxx
Assistant Secretary
Indemnitee
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