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EXHIBIT 10.5
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT ("Agreement") is made and entered into
as of the _____ day of January, 1998 by and between FACTUAL DATA CORP., INC., a
Colorado corporation ("Company"), and _______________ ("Indemnitee").
WHEREAS, competent and experienced persons are becoming more reluctant
to serve as directors and officers of corporations unless they are provided with
adequate protection against claims and actions against them for their activities
on behalf or at the request of such corporations, generally through insurance
and indemnification; and
WHEREAS, uncertainties in the interpretations of the statutes and
regulations, laws and public policies relating to indemnification of corporate
directors and officers are such as to make adequate, reliable assessment of the
risks to which directors and officers of corporations may be exposed difficult,
particularly in light of the proliferation of lawsuits against directors and
officers; and
WHEREAS, the Board of Directors of the Company, based upon the
foregoing and its business experience, has concluded that the Company should act
to provide its directors and officers with enhanced protection against
inordinate risks attendant on their positions in order to assure that the most
capable persons otherwise available will be attracted to such positions and, in
such connection, such directors have further concluded that it is not only
reasonable and prudent, but necessary, for the Company to contractually obligate
itself to indemnify to the fullest extent permitted by applicable law its
directors and certain of its officers and to assume, to the maximum extent
permitted by applicable law, financial responsibility for expenses and
liabilities which might be incurred by such individuals in connection with
claims lodged against them for their decisions, actions and omissions in such
capacities; and
WHEREAS, the Colorado Business Corporation Act empowers a corporation
organized in Colorado to indemnify persons who serve as directors, officers,
employees or agents of the corporation or persons who serve at the request of
the corporation as directors, officers, employees or agents of another
corporation or other entity; and
WHEREAS, the Articles of Incorporation of the Company provide for
indemnification in accordance with and to the fullest extent permitted by the
Colorado Business Corporation Act or any other applicable laws as presently or
hereinafter in effect; and
WHEREAS, the Company has (a) reviewed the type of insurance available
to insure the directors and officers of the Company and of its affiliates
against costs, expenses (including attorneys' fees and disbursements),
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by them in connection with any action, suit or proceeding to
which they are, or are threatened to be made, a party by reason of their status
and/or decisions or actions in such positions, (b) studied the nature and extent
of the coverage provided by such insurance and the cost thereof to the Company
and (c) concluded, notwithstanding such insurance, that it would be in the best
interests of the Company and its shareholders for the
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Company to enter into agreements to indemnify certain of such persons in the
form of this Agreement; and
WHEREAS, the Company desires to have Indemnitee serve or continue to
serve as a director and/or officer of the Company, and/or as a director,
officer, employee, partner, trustee, agent or fiduciary of such other
corporations or other entity (herein individually called a "Company Affiliate"
and collectively called "Company Affiliates") of which he has been or is
serving, or will serve, at the request of or for the convenience of or to
represent the interests of the Company, free from undue concern for
unpredictable, inappropriate or unreasonable claims for damages by reason of his
being an officer or director of the Company or a director, officer, employee,
partner, trustee, agent or fiduciary of a Company Affiliate or by reason of his
decisions or actions on their behalf, and
WHEREAS, Indemnitee is willing to serve, or to continue to serve, or to
take on additional service for, the Company and/or the Company Affiliates in
such aforesaid capacities on the condition that he be indemnified as provided
for herein;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company, Company Affiliates and Indemnitee do hereby
covenant and agree as follows:
1. Services to the Company. Indemnitee will serve and/or continue
to serve as a director, officer, employee and/or agent, as the case may be, of
the Company and/or Company Affiliate in good faith so long as he is duly elected
and qualified in accordance with the provisions of the Company's Bylaws or other
applicable constitutive documents thereof; provided that Indemnitee may, subject
to any other contract between Indemnitee and the Company and/or Company
Affiliate, at any time and for any reason resign from such position.
2. Indemnification.
(a) Except as otherwise expressly provided in this
Agreement or prohibited by applicable law, the Company, within 30 days (or such
longer period, if any, as may be permitted by Section 4(a) hereof) after receipt
of a written statement from Indemnitee requesting indemnification and reasonably
evidencing the costs, expenses, judgments, penalties, fines and amounts in
settlement incurred by him, shall, in accordance with the applicable provisions
of this Agreement, fully indemnify Indemnitee if Indemnitee is or was made a
party or is threatened to be made a party to any Proceeding (as hereinafter
defined) by reason of the fact that he is or was a director, officer, employee
or agent of the Company or Company Affiliate, or by reason of anything done or
not done by him in any such capacity (all of the foregoing reasons being herein
collectively called "Qualifying Reasons"), against costs, expenses (including
attorneys' fees and disbursements), judgments, penalties, fines and amounts in
settlement incurred by him in connection with such Proceeding (including, but
not limited to, the investigation, defense, settlement or appeal thereof). If
both the foregoing sentence and Section 2(b) hereof would be applicable to the
indemnification being sought, the provisions of Section 2(b) shall govern. For
purposes of this Agreement, (i) a "Proceeding"
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shall mean any threatened, pending or completed investigation, action, suit,
arbitration, alternate dispute resolution mechanism or any other proceeding
(including any appeals therefrom), whether civil, criminal, administrative or
investigative in nature and whether in a court or arbitration, or before or
involving a governmental, administrative or private entity (including, but not
limited to, an investigation initiated by the Company, a Company Affiliate, or
the Board of Directors or fiduciaries of any thereof) and (ii) references to
"fines" shall include, without limitation, any excise taxes assessed on
Indemnitee with respect to any employee benefit or welfare plan.
(b) Notwithstanding any other provisions of this
Agreement (except as set forth in Section 2(c) hereof), and without a
requirement for any determination as described in Section 4(a) hereof, to the
extent Indemnitee (i) has prepared to serve or has served as a witness in any
Proceeding in any way relating to the Company, any Company Affiliate, any
affiliate (as defined in Rule 405 under the Securities Act of 1933, as amended)
of the Company ("Securities Act Affiliate"), any associate (as defined in such
Rule 405) of the Company or of any Securities Act Affiliate or Company
Affiliate, or anything done or not done by Indemnitee as a director, officer,
employee, partner, trustee, agent or fiduciary of the Company or any Company
Affiliate or (ii) has been successful on the merits or otherwise (including,
without limitation, the dismissal of an action without prejudice) in defense of
any Proceeding arising out of a Qualifying Reason, or in the defense of any
claim, issue or matter involved therein, whether in the final adjudication,
arbitration or alternate dispute resolution mechanism or on appeal, the Company
shall fully indemnify him against all costs and expenses (including attorneys'
fees and disbursements) incurred by him in connection therewith (including, but
not limited to, the preparation or service as a witness or the investigation,
defense or appeal in connection with any such Proceeding) within 30 days after
receipt by the Company from Indemnitee of a statement requesting such
indemnification, reasonably evidencing the expenses and costs so incurred by him
and averring that they do not relate to matters of the type described in clauses
(i) or (ii) of Section 2(c) hereof.
(c) Notwithstanding anything to the contrary in the
foregoing provisions of this Section 2 (and except as provided in the proviso
clause of this sentence), Indemnitee shall not be entitled, as a matter of
right, to indemnification pursuant to this Section 2: (i) except as provided in
Section 4(e) or 5 hereof, against costs and expenses incurred in connection with
any Proceeding commenced by Indemnitee against the Company, any Company
Affiliate, any Securities Act Affiliate or any person who is or was a director
or officer, in his or her respective capacity as such, of the Company, any
Company Affiliate or any Securities Act Affiliate; or (ii) against costs and
expenses incurred by Indemnitee in connection with preparing to serve or
serving, prior to a Change in Control (as defined in Section 4(d)(i) hereof), as
a witness in cooperation with any party or entity, who or which has threatened
or commenced any Proceeding against the Company, any Company Affiliate or
Securities Act Affiliate, or any director, officer, employee, partner, trustee,
agent or fiduciary of any thereof in his or her respective capacity as such; or
(iii) to the extent that Indemnitee has theretofore received payment pursuant to
any directors' and officers' liability insurance policy maintained by the
Company; provided, however, that indemnification may be provided by the Company
in any
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specific case as contemplated by Section 6 hereof notwithstanding the
applicability of the foregoing clause (i) or (ii).
(d) Notwithstanding any other provision of this
Agreement, indemnification shall also be made to the extent that the State
Courts of the State of Colorado or the court in which a Proceeding was brought
shall determine that Indemnitee is fairly and reasonably entitled to
indemnification for such costs and expenses as such court shall deem proper.
(e) The rights of the Indemnitee under this Agreement
shall not be limited, diminished or reduced by the right of the Indemnitee to
seek or receive payments with respect to the matters covered by this Agreement
from any person other than the Company or under the insurance policies
maintained by the Company. In addition, the Indemnitee shall be under no
obligation to seek or accept any settlement offer and the failure to accept a
settlement offer shall not be a basis for refusing indemnification or any
diminution thereof.
3. Partial Indemnification. If Indemnitee is only partially
successful in the defense of any Proceeding arising out of a Qualifying Reason,
or in the defense of any claim, issue or matter involved therein, whether in the
initial adjudication, arbitration or alternate dispute resolution mechanism or
on appeal, the Company shall nevertheless indemnify Indemnitee, as a matter of
right pursuant to Section 2(b) hereof, to the extent Indemnitee has been
partially successful.
4. Determination of Entitlement to Indemnification Pursuant to
Section 2(a).
(a) Upon written request by Indemnitee for
indemnification pursuant to the first sentence of Section 2(a) hereof, a
determination, if required by Colorado law, with respect to Indemnitee's
entitlement thereto shall be made not later than 30 days after the Company shall
have received such request (i) if a Change in Control (as hereinafter defined)
shall have occurred, by Independent Counsel (as hereinafter defined) (unless
Indemnitee shall make a request which is timely under the circumstances that
such determination be made by the Board of Directors or shareholders, in which
case pursuant to clause (ii)(A) or (ii)(D) of this Section 4(a) as requested by
Indemnitee) in a written opinion to the Board of Directors, a copy of which
(including each prior draft thereof) shall be simultaneously delivered to
Indemnitee, and (ii) in all other cases (A) by the Board of Directors of the
Company by a majority vote of a quorum consisting of Disinterested Directors (as
hereinafter defined), or (B) if a quorum is not obtainable, by a majority vote
of a quorum of a committee of Disinterested Directors, or (C) if such a quorum
is not obtainable or, even if obtainable, if the Board of Directors by the
majority vote of Disinterested Directors so directs, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be
simultaneously delivered to Indemnitee, or (D) by the shareholders of the
Company. Indemnitee shall cooperate with the person or entity making such
determination of Indemnitee's entitlement to indemnification, including
providing to such person or entity upon reasonable advance request any
documentation or information reason ably available to Indemnitee and necessary
to such determination but not including documents or information which are
within the scope of Indemnitee's attorney-client privilege. Any costs or
expenses (including attorneys' fees and disbursements) incurred by Indemnitee
in so
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cooperating with the person or entity making such determination shall be bome by
the Company (irrespective of the determination as to Indemnitee's entitlement to
indemnification pursuant to Section 2(a) hereof), and the Company hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) In making a determination of entitlement pursuant to
Section 4(a) or 4(e) hereof, the person or entity making such determination
shall presume that Indemnitee is entitled to indemnification pursuant to Section
2(a) hereof and that the Company has the burden of proof in the making of any
determination contrary to such presumption. If no determination pursuant to
Section 4(a) hereof is made within 30 days of the Company's receipt of the
request therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be absolutely entitled to
such indemnification, absent (i) a misstatement of a material fact necessary to
make the statements in such request not materially misleading with respect to
the information necessary for the determination of entitlement to
indemnification, (ii) a prohibition of such indemnification under applicable law
or the Company's Articles of Incorporation or Bylaws, or (iii) failure of the
Indemnitee to cooperate in a timely manner with the person or entity making the
determination of entitlement to indemnification.
(c) The termination of any Proceeding by judgment, order,
settlement or conviction, or upon a plea of a nolo contendere or its equivalent,
shall not, in and of itself, affect the rights of Indemnitee to indemnification
or the presumptions to which Indemnitee is otherwise entitled pursuant to the
provisions of this Agreement.
(d) For purposes of this Agreement:
(i) "Change in Control" shall mean a change in
control of the Company 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 on any
similar schedule or form) promulgated under the Securities
Exchange Act of 1934 ("Act"), whether or not the Company is
then subject to such reporting requirement; provided however,
that, without limitation, such a Change in Control shall be
deemed to have occurred (irrespective of the applicability of
the initial clause of this definition) if (A) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Act, but
excluding any employee benefit plan or employee stock plan of
the Company or any subsidiary of the Company, or any entity
organized, appointed, established or holding securities of the
Company with voting power for or pursuant to the terms of any
such plan) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Act), directly or indirectly, of
securities of the Company representing 35% or more of the
combined voting power of the Company's then outstanding
securities without the prior approval of at least two-thirds
of the members of the Board of Directors of the Company in
office immediately prior to such persons attaining such
interest; (B) the Company 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
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Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the
Board of Directors thereafter; or (C) during any period of two
consecutive years, individuals who at the beginning of such
period constituted the Board of Directors (including for this
purpose any new director whose election or nomination for
election by the Company's share holders 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 of
Directors.
(ii) "Disinterested Director" with respect to
any request by Indemnitee for indemnification hereunder shall
mean (x) a director of the Company who neither is nor was a
party to the Proceeding in respect of which indemnification is
being sought by Indemnitee, and (x) is not an immediate
family member of the Indemnitee.
(iii) "Independent Counsel" shall mean a law firm
or a member of a law firm (A) that neither is nor in the past
five years has been retained to represent in any material
matter the Company, any Company Affiliate or any Securities
Act Affiliate, or Indemnitee or any other party to the
Proceeding giving rise to a claim for indemnification
hereunder and (B) which, under applicable standards of
professional conduct then prevailing, would not have a
conflict of interest in representing either the Company or
Indemnitee in an action to determine Indemnitee's right to
indemnification under this Agreement and (C) that is
reasonably acceptable to the Company and Indemnitee. If the
parties are unable to agree on the selection of Independent
Counsel, such counsel shall be selected by lot from among the
Colorado law firms generally reputed to be experienced in
corporate law and having more than 12 attorneys and which meet
the requirements of Section 4(d)(iii)(A) and (B) hereof. Such
selection shall be made in the presence of Indemnitee (or his
representative), and the parties shall contact, in the order
of their selection by lot, such law firms, requesting each
such firm to accept an engagement to make the determination
required hereunder until one of such firms accepts such
engagement. The fees and expenses of counsel in connection
with making any determination contemplated hereunder
(irrespective of the determination as to Indemnitee's
entitlement to indemnification) shall be paid by the Company
and, if requested by such counsel, the Company shall promptly
give such counsel an appropriate written agreement with
respect to the payment of its fees and expenses and such other
matters as may be reasonably requested by such counsel.
(e) If pursuant to Section 4(a) hereof a determination is
made that Indemnitee shall not be entitled to indemnification hereunder in
respect of all or any part of a claim made by Indemnitee therefor, Indemnitee
shall nevertheless be entitled, at his option, to seek court-ordered
indemnification pursuant to the Colorado Business Corporation Act.
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(f) If the person or entity (including the Board of
Directors, a committee of the Board of Directors, Independent Counsel,
shareholders or court) making the determination as to the entitlement of
Indemnitee to indemnification hereunder shall determine that Indemnitee is not
entitled to indemnification in respect of all claims, issues or matters involved
in a Proceeding in respect of which indemnification is sought hereunder but is
entitled to indemnification for some of such claims, issues or matters, such
person or entity shall equitably allocate such costs, expenses (including
attorneys' fees and disbursements), judgments, penalties, fines and amounts in
settlement incurred in connection with such Proceeding among the claims, issues
or matters involved therein and determine those for which Indemnitee shall be
indemnified hereunder.
5. Advancement of Costs and Expenses.
(a) All costs and expenses (including attorneys' fees,
retainers and advances of disbursements required of Indemnitee) incurred by
Indemnitee in preparing to serve or serving as a witness in a Proceeding of the
type described in clause (i) of Section 2(b) hereof, or in investigating,
defending or appealing any Proceeding relating to a Qualifying Reason (and not
excluded by clause (i) or (ii) of Section 2(c), or relating to a Proceeding
described in or arising pursuant to Section 5 hereof, shall be paid by the
Company (in advance of the final disposition of such Proceeding) at the request
of Indemnitee within 30 days after the receipt from time to time by the Company
from Indemnitee of a statement or statements requesting such advance or
advances, affirming the Indemnitee's good faith belief that he has met the
standard of conduct required by the Colorado Business Corporation Act,
reasonably evidencing the expenses and costs incurred by him in connection
therewith and averring that they do not relate to matters described in the
aforesaid clause (i) or (ii) of Section 2(c), together with a written
undertaking by Indemnitee to repay such amount if it is ultimately determined
(in a final adjudication or conclusion of an arbitration pursuant to Section
4(e) hereof, if Indemnitee elects to seek such an adjudication, and otherwise in
a determination, if required hereunder, pursuant to Section 4(a) hereof) that
Indemnitee is not entitled to be indemnified against such costs and expenses by
the Company as provided by this Agreement (or, if Indemnitee has sought advances
pursuant to Section 4(e) or 5 hereof, if there is a specific judicial finding
that Indemnitee's suit was frivolous).
(b) If and to the extent it is finally determined
hereunder that Indemnitee is not entitled to indemnification, or is entitled
only to partial indemnification, Indemnitee shall reimburse the Company for all
costs and expenses advanced or prepaid pursuant to Indemnitee's prior request or
requests hereunder, or the proper proportion thereof, as the case may be, within
90 days after receipt of an itemized written statement therefor from the
Company, provided that Indemnitee shall have no obligation to reimburse the
Company for any of Indemnitee's costs and expenses relating to (i) cooperating
with the Company in making its determination, as provided in Section 4(a)
hereof, (ii) an adjudication of his entitlement to indemnification hereunder, as
provided in Section 4(e) hereof or (iii) a Proceeding described in or arising
under Section 5 hereof (unless, in the case of the foregoing clause (ii) or
(iii), there is a specific judicial finding that Indemnitee's suit was
frivolous).
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(c) Indemnitee shall have the right to employ counsel
during the pendency of any Proceeding which is the subject of this Agreement,
but the fees and expenses of such counsel shall be at Indemnitee's expense
unless (i) all Indemnitees who are made a party or threatened to be made a party
to any Proceeding within the scope of this Agreement agree to use the same legal
counsel; (ii) the employment of counsel by Indemnitee has been authorized by the
Company; (iii) the Company acknowledges that there is a conflict of interest
between the Company and Indemnitee in the conduct of the defense of such
Proceeding, in which case, counsel selected by Indemnitee must be reasonably
satisfactory to Company; and provided further that if other persons who are
potential targets of any Proceeding are being separately represented because of
the same or substantially same conflict of interest, Indemnitee shall, upon the
Company's demand, use the same counsel as engaged on behalf of the other persons
(unless a conflict also exists between Indemnitee and such other persons); (iv)
following ten (10) days written notice, the Company shall in fact not have
employed counsel to assume the defense of such Proceeding; or (v) counsel
selected by the Company moves to withdraw from representing Indemnitee, and the
Company does not, within ten (10) days of receiving notice of such motion employ
substitute counsel.
6. Other Rights to Indemnification. The indemnification and
advancement of costs and expenses (including attorneys' fees and disbursements)
provided by this Agreement shall not be deemed exclusive of any other rights to
which Indemnitee may now or in the future be entitled under any provision of
applicable law, the Articles of Incorporation or any Bylaw of the Company or any
other agreement or any vote of directors or shareholders or otherwise, whether
as to action in his official capacity or in another capacity while occupying any
of the positions or having any of the relationships referred to in Section 2 of
this Agreement.
7. Enforcement.
(a) The Company unconditionally and irrevocably agrees
that its execution of this Agreement shall also constitute a stipulation by
which it shall be irrevocably bound in any court or arbitration in which a
Proceeding by Indemnitee for enforcement of his rights shall have been
commenced, continued or appealed that its obligations set forth in this
Agreement are unique and special, and that failure of the Company to comply with
the provisions of this Agreement will cause irreparable and irremediable injury
to Indemnitee, for which a remedy at law will be inadequate. As a result, in
addition to any other right or remedy he may have at law or in equity with
respect to a violation of this Agreement, Indemnitee shall be entitled to
injunctive or mandatory relief directing specific performance by the Company of
its obligations under this Agreement. The Company further irrevocably stipulates
and agrees that (i) it shall not, except in good faith, raise any objections not
specifically relating to the merits of Indemnitee's claim, (ii) if a
determination was made or deemed to have been made pursuant to the provisions of
Section 4 hereof that Indemnitee is entitled to indemnification, the Company
shall be bound by such determination and shall be precluded from asserting that
such determination has not been made or that the procedure by which such
determination was made is not valid, binding and enforceable, (iii) the Company
shall be bound, in any such Proceeding, by all provisions of this Agreement
(including, but not limited to, Sections 4(b) and 4(c) hereof)
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and (iv) the Company shall not assert any rights of set-off against Indemnitee
except for money borrowed by Indemnitee from the Company.
(b) If Indemnitee is subject to or intervenes in any
legal action in which the validity or enforceability of this Agreement is at
issue or institutes any legal action, for specific performance or otherwise, to
enforce his rights under, or to recover damages for breach of, this Agreement,
Indemnitee shall, within 30 days after written request to the Company therefor
(and submission of reasonable evidence of the amount thereof), and unless there
is a specific judicial finding that Indemnitee's suit was frivolous, be
indemnified by the Company against all costs and expenses (including attorneys'
fees and disbursements) incurred by him in connection therewith.
8. Duration of Agreement.
(a) This Agreement shall continue until and terminate
upon the later of (i) the tenth anniversary after Indemnitee has ceased to
occupy any of the positions or have any of the relationships described in
Section 2(a) of this Agreement or (ii) (A) the final termination or resolution
of all Proceedings with respect to Indemnitee commenced during such 10 year
period and (B) either (x) receipt by Indemnitee of the indemnification to which
he is entitled hereunder with respect thereto or (y) a final adjudication or
binding arbitration that Indemnitee is not entitled to any further
indemnification with respect thereto, as the case may be.
(b) This Agreement shall be binding upon the Company and
its successors and assigns and shall inure to the benefit of Indemnitee and his
heirs, devisees, executors, administrators or other legal representatives.
9. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable under any particular
circumstances or for any reason whatsoever (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including, without
limitation, all other portions of any Section, paragraph or clause of this
Agreement that contains any provision that has been found to be invalid, illegal
or unenforceable, that are not themselves invalid, illegal or unenforceable), or
the validity, legality or enforceability under any other circumstances shall not
in any way be affected or impaired thereby and (b) to the fullest extent
possible consistent with applicable law, the provisions of this Agreement
(including, without limitation, all other portions of any Section, paragraph or
clause of this Agreement that contains any such provision that has been found to
be invalid, illegal or unenforceable, that are not themselves invalid, illegal
or unenforceable) shall be deemed revised, and shall be construed so as to give
effect to the intent manifested by this Agreement (including the provision held
invalid, illegal or unenforceable).
10. 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.
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11. Headings. The headings of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction thereof.
12. Modification and Waiver. 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.
13. Notification and Defense of Claim. Indemnitee agrees to
promptly notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any matter which may be subject to indemnification covered
hereunder, whether civil, criminal or investigative; provided, however, that the
failure of Indemnitee to give such notice to the Company shall not adversely
affect Indemnitee's rights under this Agreement except to the extent the Company
shall have been materially prejudiced as a direct result of such failure.
Nothing in this Agreement shall constitute a waiver of the Company's right to
seek participation at its own expense in any Proceeding which may give rise to
indemnification hereunder.
14. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, (ii) mailed by certified
or registered mail with postage prepaid, on the fourth business day after the
date on which it is so mailed, or (iii) sent by facsimile transmission with the
effective transmission confirmed by receipt, in all cases:
(a) if to Indemnitee, at the address indicated on the
signature page hereof, and
(b) if to the Company:
Factual Data Corp.
0000 XXX Xxxxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
or to such other address as may have been furnished to either party by the other
party.
15. Governing law. The parties hereto agree that this Agreement
shall be governed by, and construed and enforced in accordance with, the laws of
the State of Colorado.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
FACTUAL DATA CORP.
By:
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Name:
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Title:
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INDEMNITEE
By:
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Print Name:
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Address:
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