Exhibit 10.2
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "AGREEMENT") is made and entered
into this __ day of June, 2006, by and between Optium Corporation, a Delaware
corporation (the "COMPANY," which term shall include, where appropriate, any
Entity (as hereinafter defined) controlled, directly or indirectly, by the
Company) and _________________ (the "INDEMNITEE"):
WHEREAS, it is essential to the Company that it be able to retain and
attract as directors and executive officers the most capable persons available;
WHEREAS, increased corporate litigation has subjected directors and
executive officers to litigation risks and expenses, and the limitations on the
availability of directors and officers liability insurance have made it
increasingly difficult for the Company to attract and retain such persons;
WHEREAS, the Company's By-laws, as amended from time to time (the
"BY-LAWS") require it to indemnify its directors and executive officers to the
fullest extent permitted by law and permit it to make other indemnification
arrangements and agreements;
WHEREAS, the Company desires to provide Indemnitee with specific
contractual assurance of Indemnitee's rights to full indemnification against
litigation risks and expenses (regardless, among other things, of any amendment
to or revocation of the Company's Fifth Amended and Restated Certificate of
Incorporation, as amended from time to time (the "CERTIFICATE OF INCORPORATION")
or By-laws or any change in the ownership of the Company or the composition of
its Board of Directors);
WHEREAS, the Company intends that this Agreement provide Indemnitee
with greater protection than that which is provided by the Company's By-laws;
and
WHEREAS, Indemnitee is relying upon the rights afforded under this
Agreement in becoming or continuing as a director or executive officer of the
Company.
NOW, THEREFORE, in consideration of the promises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. DEFINITIONS.
(a) "Corporate Status" describes the status of a person who is
serving or has served (i) as a director of the Company, (ii) as an
executive officer of the Company, (iii) in any capacity with respect
to any employee benefit plan of the Company, or (iv) as a director,
partner, trustee, officer, employee, or agent of any other Entity at
the request of the Company. For purposes of subsection (iv) of this
Section 1(a), if Indemnitee is serving or has served as a director,
partner, trustee,
officer, employee or agent of a Subsidiary, Indemnitee shall be
deemed to be serving at the request of the Company.
(b) "Entity" shall mean any corporation, partnership, limited
liability company, joint venture, trust, foundation, association,
organization or other legal entity.
(c) "Enterprise" shall mean the Company and any other corporation,
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, employee, agent or fiduciary.
(d) "Expenses" shall mean all fees, costs and expenses incurred by
Indemnitee in connection with any Proceeding (as defined below),
including, without limitation, attorneys' fees, disbursements and
retainers (including, without limitation, any such fees,
disbursements and retainers incurred by Indemnitee pursuant to
Sections 13 and 14(c) of this Agreement), fees and disbursements of
expert witnesses, private investigators and professional advisors
(including, without limitation, accountants and investment bankers),
court costs, transcript costs, fees of experts, travel expenses,
duplicating, printing and binding costs, telephone and fax
transmission charges, postage, delivery services, secretarial
services, and other disbursements and expenses.
(e) "Indemnifiable Amounts" shall have the meaning ascribed to that
term in Section 3 below.
(f) "Liabilities" shall mean judgments, damages, liabilities,
losses, penalties, excise taxes, fines and amounts paid in
settlement.
(g) "Proceeding" shall mean any threatened, pending or completed
claim, action, suit, arbitration, alternate dispute resolution
process, investigation, administrative hearing, appeal, or any other
proceeding, whether civil, criminal, administrative, arbitrative or
investigative, whether formal or informal, including a proceeding
initiated by Indemnitee pursuant to Section 13 of this Agreement to
enforce Indemnitee's rights hereunder.
(h) "Subsidiary" shall mean any corporation, partnership, limited
liability company, joint venture, trust or other Entity of which the
Company owns (either directly or through or together with another
Subsidiary of the Company) either (i) a general partner, managing
member or other similar interest or (ii) (A) 50% or more of the
voting power of the voting capital equity interests of such
corporation, partnership, limited liability company, joint venture
or other Entity, or (B) 50% or more of the outstanding voting
capital stock or other voting equity interests of such corporation,
partnership, limited liability company, joint venture or other
Entity.
2. SERVICES OF INDEMNITEE. In consideration of the Company's covenants
and commitments hereunder, Indemnitee agrees to serve or continue to serve as a
director or
executive officer of the Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue Indemnitee's service to the
Company beyond any period otherwise required by law or by other agreements or
commitments of the parties, if any. Indemnitee may at any time and for any
reason resign from such position (subject to any other contractual obligation or
any obligation imposed by operation of law), upon which event the Company shall
have no obligation under this Agreement to continue Indemnitee in such position.
Notwithstanding the forgoing, this Agreement shall continue in force after
Indemnitee has ceased to serve as a director or executive officer of the
Company.
3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is,
or is threatened to be made, by reason of Indemnitee's Corporate Status, a party
to or a participant in any Proceeding, other than a Proceeding by or in the
right of the Company to procure a judgment in its favor. Pursuant to this
Section 3, Indemnitee shall be indemnified against all Expenses and Liabilities
actually and reasonably incurred by Indemnitee or on his behalf in connection
with such Proceeding or any claim, issue or matter therein (indemnifiable
Expenses and Liabilities collectively referred herein as "INDEMNIFIABLE
AMOUNTS"), 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 not reasonable cause to believe that his
conduct was unlawful. Indemnitee shall not enter into any settlement in
connection with a Proceeding without the consent of the Company, which shall not
be unreasonably held or delayed.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The
Company shall indemnify Indemnitee in accordance with the provisions of this
Section 4 if Indemnitee is, or is threatened to be made, by reason of
Indemnitee's Corporate Status, a party to or a participant in any Proceeding by
or in the right of the Company to procure a judgment in its favor. Pursuant to
this Section 4, 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. No indemnification for Expenses shall be made under
this Section 4 in respect of any claim, issue or matter as to which Indemnitee
shall have been finally adjudged by a court to be liable to the Company, unless
and only to the extent that the Delaware Court of Chancery (the "DELAWARE
CHANCERY COURT") or any court in which the Proceeding was brought 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 Chancery Court or
such other court shall deem proper.
5. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY
SUCCESSFUL. 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
Indemnitee against: (a) all Expenses reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with each successfully resolved claim, issue
or matter; and (b) any claim, issue or matter related to any such successfully
resolved claim, issue or matter. For purposes of this Agreement, the termination
of any claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, by reason of settlement, judgment, order or otherwise, shall be
deemed to be a successful result as to such claim, issue or matter.
6. PROCEDURE FOR PAYMENT OF INDEMNIFIABLE AMOUNTS. Indemnitee shall
submit to the Company a written request specifying the Indemnifiable Amounts for
which Indemnitee seeks payment under Sections 3, 4 or 5 of this Agreement and
the basis for the claim. The Company shall pay such Indemnifiable Amounts to
Indemnitee promptly upon receipt of its request. At the request of the Company,
Indemnitee shall furnish such documentation and information as are reasonably
available to Indemnitee and necessary to establish that Indemnitee is entitled
to indemnification hereunder.
7. 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.
8. EFFECT OF CERTAIN RESOLUTIONS. Neither the settlement or termination
of any Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create a presumption that
Indemnitee is not entitled to indemnification hereunder. In addition, the
termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of NOLO CONTENDERE or its equivalent shall not create a presumption
that Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company
or, with respect to any criminal Proceeding, had reasonable cause to believe
that Indemnitee's action was unlawful.
9. EXCLUSIONS. Notwithstanding any provision in this Agreement to the
contrary, 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 made to or on behalf of
Indemnitee under any insurance policy or other indemnity provision,
except with respect to any excess beyond the amount paid under any
insurance policy or other indemnity provisions;
(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 Securities Exchange Act of 1934,
as amended, or similar provisions of state statutory law or common
law; or
(c) for which payment is prohibited by applicable law.
10. AGREEMENT TO ADVANCE EXPENSES; UNDERTAKING. The Company shall
advance all Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding, including a Proceeding by or in the right of the Company, in
which Indemnitee is involved by reason of such Indemnitee's Corporate Status
within thirty (30) calendar days after the receipt by the Company of a written
statement from Indemnitee requesting such advance or advances from time to time,
whether prior to or after final disposition of such Proceeding. Advances shall
be unsecured and interest free. Advances shall be made without regard to
Indemnitee's ability to repay the
expenses and without regard to Indemnitee's ultimate entitlement to
indemnification under the other provisions of this Agreement. To the extent
required by Delaware law, Indemnitee hereby undertakes to repay any and all of
the amount of indemnifiable Expenses paid to Indemnitee if it is finally
determined by a court of competent jurisdiction that Indemnitee is not entitled
under this Agreement to indemnification with respect to such Expenses. This
undertaking is an unlimited general obligation of Indemnitee.
11. PROCEDURE FOR ADVANCE PAYMENT OF EXPENSES. Indemnitee shall submit
to the Company a written request specifying the Expenses for which Indemnitee
seeks an advancement under Section 10 of this Agreement, together with
documentation evidencing that Indemnitee has incurred such Expenses (which shall
include invoices received by Indemnitee in connection with such Expenses but, in
the case of invoices in connection with legal services, any reference to legal
work performed or to expenditures made that would cause Indemnitee to waive any
privilege accorded by applicable law shall not be included with the invoice).
Advances under Section 10 shall be made no later than thirty (30) calendar days
after the Company's receipt of such request. If a claim for advancement of
Expenses hereunder by Indemnitee is not paid in full by the Company within
thirty (30) calendar days after receipt by the Company of documentation of
Expenses and the required undertaking, Indemnitee may at any time thereafter
bring suit against the Company to recover the unpaid amount of the claim and if
successful in whole or in part, Indemnitee shall also be entitled to be paid the
expenses of prosecuting such claim. The burden of proving that Indemnitee is not
entitled to an advancement of expenses shall be on the Company.
12. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) In making a determination required to be made under Delaware
law 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 6 of this Agreement, and the Company shall
have the burden of proof to overcome that presumption in connection
with the making of any determination contrary to that presumption.
Neither the failure of the Company or of any person, persons or
entity to have made a determination prior to the commencement of
any action pursuant to this Agreement that indemnification is
proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination by the
Company or by any person, persons or entity that Indemnitee has not
met such applicable standard of conduct, shall be a defense to the
action or create a presumption that Indemnitee has not met the
applicable standard of conduct.
(b) 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 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.
(c) 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,
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 the
Board of Directors or counsel selected by any committee of the
Board of Directors or on information or records given or reports
made to the Enterprise by an independent certified public
accountant or by an appraiser, investment banker or other expert
selected with reasonable care by the Company or the Board of
Directors or any committee of the Board of Directors. The
provisions of this Section 12(c) shall not be deemed to be
exclusive or to limit in any way the other circumstances in which
the Indemnitee may be deemed to have met the applicable standard of
conduct set forth in this Agreement.
(d) The knowledge and/or actions, or failure to act, of any
director, officer, agent or employee of the Enterprise shall not be
imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
13. REMEDIES OF INDEMNITEE.
(a) RIGHT TO PETITION COURT. In the event that Indemnitee makes a
request for payment of Indemnifiable Amounts under Sections 3, 4
and 5 above or a request for an advancement of Expenses under
Sections 10 and 11 above and the Company fails to make such payment
or advancement in a timely manner pursuant to the terms of this
Agreement, Indemnitee may petition the Delaware Chancery Court to
enforce the Company's obligations under this Agreement.
(b) BURDEN OF PROOF. In any judicial proceeding brought under
Section 13(a) above, the Company shall have the burden of proving
that Indemnitee is not entitled to payment of Indemnifiable Amounts
hereunder.
(c) EXPENSES. The Company agrees to reimburse Indemnitee in full
for any Expenses incurred by Indemnitee in connection with
investigating, preparing for, litigating, defending or settling any
action brought by Indemnitee under Section 13(a) above, or in
connection with any claim or counterclaim brought by the Company in
connection therewith, if Indemnitee is successful in whole or in
part in connection with any such action.
(d) FAILURE TO ACT NOT A DEFENSE. The failure of the Company
(including its Board of Directors or any committee thereof,
independent legal counsel, or stockholders) to make a determination
concerning the permissibility of the payment of Indemnifiable
Amounts or the advancement of indemnifiable Expenses under this
Agreement shall not be a defense in any action brought under
Section 13(a) above, and shall not create a presumption that such
payment or advancement is not permissible.
14. DEFENSE OF THE UNDERLYING PROCEEDING.
(a) NOTICE BY INDEMNITEE. Indemnitee agrees to notify the Company
promptly upon being served with any summons, citation, subpoena,
complaint, indictment, information, or other document relating to
any Proceeding which may result in the payment of Indemnifiable
Amounts or the advancement of Expenses hereunder; provided,
however, that the failure to give any such notice shall not
disqualify Indemnitee from the right, or otherwise affect in any
manner any right of Indemnitee, to receive payments of
Indemnifiable Amounts or advancements of Expenses unless the
Company's ability to defend in such Proceeding is materially and
adversely prejudiced thereby.
(b) DEFENSE BY COMPANY. Subject to the provisions of the last
sentence of this Section 14(b) and of Section 14(c) below, the
Company shall have the right to defend Indemnitee in any Proceeding
which may give rise to the payment of Indemnifiable Amounts
hereunder; provided, however that the Company shall notify
Indemnitee of any such decision to defend within thirty (30)
calendar days of receipt of notice of any such Proceeding under
Section 14(a) above. The Company shall not, without the prior
written consent of Indemnitee, consent to the entry of any judgment
against Indemnitee or enter into any settlement or compromise which
(i) includes an admission of fault of Indemnitee or (ii) does not
include, as an unconditional term thereof, the full release of
Indemnitee from all liability in respect of such Proceeding, which
release shall be in form and substance reasonably satisfactory to
Indemnitee. This Section 14(b) shall not apply to a Proceeding
brought by Indemnitee under Section 13(a) above or pursuant to
Section 22 below.
(c) INDEMNITEE'S RIGHT TO COUNSEL. Notwithstanding the provisions
of Section 14(b) above, if in a Proceeding to which Indemnitee is a
party by reason of Indemnitee's Corporate Status, (i) Indemnitee
reasonably concludes that he or she may have separate defenses or
counterclaims to assert with respect to any issue which may not be
consistent with the position of other defendants in such
Proceeding, (ii) a conflict of interest or potential conflict of
interest exists between Indemnitee and the Company, or (iii) if the
Company fails to assume the defense of such proceeding in a timely
manner, Indemnitee shall be entitled to be represented by a
separate legal counsel of Indemnitee's choice at the expense of the
Company. In addition, if the Company fails to comply with any of
its obligations under this Agreement or in the event that the
Company or any other person takes any action to declare this
Agreement void or unenforceable, or institutes any action, suit or
proceeding to deny or to recover from Indemnitee the benefits
intended to be provided to Indemnitee hereunder, Indemnitee shall
have the right to retain a counsel of Indemnitee's choice, at the
expense of the Company, to represent Indemnitee in connection with
any such matter.
15. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Indemnitee as follows:
(a) AUTHORITY. The Company has all necessary power and authority to
enter into, and be bound by the terms of, this Agreement, and the
execution, delivery and performance of the undertakings
contemplated by this Agreement have been duly authorized by the
Company.
(b) ENFORCEABILITY. This Agreement, when executed and delivered by
the Company in accordance with the provisions hereof, shall be a
legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the
enforcement of creditors' rights generally.
16. INSURANCE. The Company shall, from time to time, make the good
faith determination whether or not it is practicable for the Company to obtain
and maintain a policy or policies of insurance with a reputable insurance
company providing the Indemnitee with coverage for losses from wrongful acts.
For so long as Indemnitee shall remain a director or executive officer of the
Company and with respect to any such prior service, in all policies of director
and officer liability insurance, Indemnitee shall be named as an insured in such
a manner as to provide Indemnitee the same rights and benefits as are accorded
to the most favorably insured of the Company's officers and directors.
Notwithstanding the foregoing, the Company shall have no obligation to obtain or
maintain such insurance if the Company determines in good faith that such
insurance is not reasonably available, if the premium costs for such insurance
are disproportionate to the amount of coverage provided, or if the coverage
provided by such insurance is limited by exclusions so as to provide an
insufficient benefit. The Company shall promptly notify Indemnitee of any good
faith determination not to provide such coverage.
17. CONTRACT RIGHTS NOT EXCLUSIVE. The rights to payment of
Indemnifiable Amounts and advancement of indemnifiable Expenses provided by this
Agreement shall be in addition to, but not exclusive of, any other rights which
Indemnitee may have at any time under applicable law, the Company's Certificate
of Incorporation or By-laws, or any other agreement, vote of stockholders or
directors (or a committee of directors), or otherwise, both as to action in
Indemnitee's official capacity and as to action in any other capacity as a
result of Indemnitee's serving as a director or executive officer of the
Company.
18. SUCCESSORS. This Agreement shall be (a) binding upon all successors
and assigns of the Company (including any transferee of all or a substantial
portion of the business, stock and/or assets of the Company and any direct or
indirect successor by merger or consolidation or otherwise by operation of law)
and (b) binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of Indemnitee. This Agreement
shall continue for the benefit of Indemnitee and such heirs, personal
representatives, executors and administrators after Indemnitee has ceased to
have Corporate Status.
19. SUBROGATION. In the event of any payment of Indemnifiable Amounts
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of contribution or recovery of Indemnitee against
other persons, and Indemnitee shall take, at the request of the Company, all
reasonable action necessary to secure such rights, including the execution of
such documents as are necessary to enable the Company to bring suit to enforce
such rights.
20. CHANGE IN LAW. To the extent that a change in Delaware law (whether
by statute or judicial decision) shall permit broader indemnification or
advancement of expenses than is provided under the terms of the By-laws and this
Agreement, Indemnitee shall be entitled to such broader indemnification and
advancements, and this Agreement shall be deemed to be amended to such extent.
21. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause thereof,
shall be determined by a court of competent jurisdiction to be illegal, invalid
or unenforceable, in whole or in part, such provision or clause shall be limited
or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions
and clauses of this Agreement shall remain fully enforceable and binding on the
parties.
22. INDEMNITEE AS PLAINTIFF. Except as provided in Section 13(c) of
this Agreement and in the next sentence, Indemnitee shall not be entitled to
payment of Indemnifiable Amounts or advancement of indemnifiable Expenses with
respect to any Proceeding brought by Indemnitee against the Company, any Entity
which it controls, any director or officer thereof, or any third party, unless
the Board of Directors of the Company has consented to the initiation of such
Proceeding. This Section 22 shall not apply to counterclaims or affirmative
defenses asserted by Indemnitee in an action brought against Indemnitee.
23. MODIFICATIONS AND WAIVER. Except as provided in Section 20 above
with respect to changes in Delaware law which broaden the right of Indemnitee to
be indemnified by the Company, no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by each 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 of this Agreement (whether or
not similar), nor shall such waiver constitute a continuing waiver.
24. GENERAL NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:
(i) If to Indemnitee, to:
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(ii) If to the Company, to:
Optium Corporation
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
or to such other address as may have been furnished in the same manner by any
party to the others.
25. GOVERNING LAW; CONSENT TO JURISDICTION; SERVICE OF PROCESS. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to its rules of conflict of laws. Each of the
Company and the Indemnitee hereby irrevocably and unconditionally consents to
submit to the exclusive jurisdiction of the Delaware Chancery Court and the
courts of the United States of America located in the State of Delaware (the
"DELAWARE COURTS") for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to commence
any litigation relating thereto except in such courts), waives any objection to
the laying of venue of any such litigation in the Delaware Courts and agrees not
to plead or claim in any Delaware Court that such litigation brought therein has
been brought in an inconvenient forum. Each of the parties hereto agrees, (a) to
the extent such party is not otherwise subject to service of process in the
State of Delaware, to appoint and maintain an agent in the State of Delaware as
such party's agent for acceptance of legal process, and (b) that service of
process may also be made on such party by prepaid certified mail with a proof of
mailing receipt validated by the United States Postal Service constituting
evidence of valid service. Service made pursuant to (a) or (b) above shall have
the same legal force and effect as if served upon such party personally within
the State of Delaware. For purposes of implementing the parties' agreement to
appoint and maintain an agent for service of process in the State of Delaware,
each such party does hereby appoint The Corporation Trust Company, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000, as such agent and each
such party hereby agrees to complete all actions necessary for such appointment.
26. OTHER AGREEMENTS. This Agreement shall supersede and replace any
other agreement regarding indemnification between the Company and the
Indemnitee.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
OPTIUM CORPORATION
By:
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Name:
Title:
INDEMNITEE
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