INDEMNIFICATION AGREEMENT
Exhibit
10.7
This
Indemnification Agreement
("Agreement") is
entered into as of June 29, 2007 by and between Monarch Staffing, Inc., a Nevada
corporation (the
"Company") and Xxxx
Xxxx
("Indemnitee").
RECITALS
-------------
A. The
Company and
Indemnitee recognize the continued difficulty in obtaining liability insurance
for its directors, officers, employees, agents and fiduciaries, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance.
B. The
Company and
Indemnitee further recognize the substantial increase in corporate litigation
in
general, subjecting directors, officers, employees, agents and fiduciaries
to
expensive litigation risks at the same time as the availability and coverage
of
liability insurance has been severely limited.
C. Indemnitee
does not
regard the current protection available as adequate under the present
circumstances, and Indemnitee and other directors, officers, employees, agents
and fiduciaries of the Company may not be willing to continue to serve in such
capacities without additional protection.
D. The
Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company and, in part, in order
to
induce Indemnitee to continue to provide services to the Company, wishes to
provide for the indemnification and advancing of expenses to Indemnitee to
the
maximum extent permitted by law.
E. In
view of the considerations set forth above, the Company desires that Indemnitee
be indemnified by the Company as set forth herein.
NOW,
THEREFORE, the Company and Indemnitee hereby agree as
follows:
1. Indemnification.
(a) Indemnification
of Expenses. The Company shall indemnify to the fullest extent
permitted by law if Indemnitee was or 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, any threatened, pending or completed action, suit, proceeding
or
alternative dispute resolution mechanism, or any hearing, inquiry or
investigation that Indemnitee in good faith believes might lead to the
institution of any such action, suit, proceeding or alternative dispute
resolution mechanism, whether civil, criminal, administrative, investigative
or
other (hereinafter a
"Claim") by reason of
(or arising in part out of) any event or occurrence related to the fact that
Indemnitee is or was a director, officer, employee, agent or fiduciary of the
Company, or any subsidiary of the Company, or is or was serving at the request
of the Company as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action or inaction on the part of Indemnitee while serving in such
capacity (hereinafter an "Indemnifiable
Event") against any and all expenses (including
attorneys' fees and all other costs, expenses and obligations incurred in
connection with investigating, defending, being a witness in or participating
in
(including on appeal), or preparing to defend, be a witness in or participate
in, any such action, suit, proceeding, alternative dispute resolution mechanism,
hearing, inquiry or investigation), judgments, fines, penalties and amounts
paid
in settlement (if such settlement is approved in advance by the Company, which
approval shall not be unreasonably withheld) of 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 (collectively, hereinafter
"Expenses"), including
all interest, assessments and other charges paid or payable in connection with
or in respect of such Expenses. Such payment of Expenses shall be
made by the Company as soon as practicable but in any event no later than twenty
(20) days after written demand by Indemnitee therefor is presented to the
Company.
(b) Reviewing
Party. Notwithstanding the foregoing, (i) the obligations of the
Company under Section 1(a) shall be subject to the condition that the Reviewing
Party (as described in Section 10(e) hereof) shall not have determined (in
a
written opinion, in any case in which the Independent Legal Counsel referred
to
in Section 1(c) 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 advance payment of Expenses to Indemnitee pursuant to Section 2(a) (an
"Expense Advance")
shall be subject to the condition 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 or
thereafter commenced legal proceedings in a court of competent jurisdiction
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). The
Indemnitee's obligation to reimburse the Company for any Expense Advance shall
be unsecured and no interest shall be charged thereon. If there has
not been a Change in Control (as defined in Section 10(c) hereof), the Reviewing
Party shall be selected by the Board of Directors, and if there has been such
a
Change in Control (other than a Change in Control which has been approved by
a
majority of the Company's Board of Directors who were directors immediately
prior to such Change in Control), the Reviewing Party shall be the Independent
Legal Counsel referred to in Section 1(c) 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 seeking an initial determination by the court or challenging any
such
determination by the Reviewing Party or any aspect thereof, including the legal
or factual bases therefor, 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.
(c) 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 a
majority of the Company's Board of Directors who were directors immediately
prior to such Change in Control) then, with respect to all matters thereafter
arising concerning the rights of Indemnitees to payments of Expenses and Expense
Advances under this Agreement or any other agreement or under the Company's
Articles of Incorporation, as amended, or Bylaws as now or hereafter in effect,
Independent Legal Counsel (as defined in Section 10(d) hereof) shall be selected
by Indemnitee and approved by the Company (which approval shall not be
unreasonably withheld). Such counsel, among other things, shall 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 and the
Company agrees to abide by such opinion. The Company agrees to pay the
reasonable fees of the Independent Legal 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.
(d) Mandatory
Payment of Expenses. Notwithstanding any other provision of this
Agreement other than Section 9 hereof, to the extent that Indemnitee has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any action, suit,
proceeding, inquiry or investigation referred to in Section (1)(a) hereof or
in
the defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against all Expenses incurred by Indemnitee in connection
therewith.
2. Expenses;
Indemnification Procedure.
(a) Advancement
of Expenses. The Company shall advance all Expenses incurred by
Indemnitee. The advances to be made hereunder shall be paid by the Company
to
Indemnitee as soon as practicable but in any event no later than twenty (20)
days after written demand by Indemnitee therefor to the Company.
(b) Notice/Cooperation
by Indemnitee. Indemnitee shall, as a condition precedent to
Indemnitee's right to be indemnified under this Agreement, give the Company
notice in writing as soon as practicable of any Claim made against Indemnitee
for which indemnification will or could be sought under this Agreement. Notice
to the Company shall be directed to the Board of Directors of the Company at
the
address set forth in Section 14(d)(i) hereof (or such other address as the
Company shall designate in writing to Indemnitee as provided in Section 14
hereof). In addition, Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within Indemnitee's
power.
(c) No
Presumptions; Burden of Proof. For purposes of this Agreement, the
termination of any Claim 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 or that a court
has
determined that indemnification is not permitted by applicable law. In addition,
neither the failure of the Reviewing Party to have made a determination as
to
whether Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by the Reviewing Party that
Indemnitee has not met such standard of conduct or did not have such belief,
prior to the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under applicable
law, shall be a defense to Indemnitee's claim or create a presumption that
Indemnitee has not met any particular standard of conduct or did not have any
particular belief. 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.
(d) Notice
to Insurers. If, at the time of the receipt by the Company of a
notice of a Claim pursuant to Section 2(b) hereof, the Company has liability
insurance in effect which may cover such Claim, the Company shall give prompt
notice of the commencement of such Claim 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 Indemnitee, all amounts payable as a result of such action, suit, proceeding,
inquiry or investigation in accordance with the terms of such
policies.
(e) Selection
of Counsel. In the event the Company shall be obligated hereunder to
pay the Expenses of any Claim, the Company shall be entitled to assume the
defense of such Claim with counsel approved by Indemnitee, which approval shall
not be unreasonably withheld, upon the delivery to Indemnitee of written notice
of its election so to do. After delivery of such notice, approval of such
counsel by Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to Indemnitee under this Agreement for any fees
of
counsel subsequently incurred by Indemnitee with respect to the same Claim;
provided that, (i) Indemnitee shall have the right to employ Indemnitee's
counsel in any such Claim at Indemnitee's expense and (ii) if (A) the employment
of counsel by Indemnitee has been previously authorized by the Company, (B)
Indemnitee shall have reasonably concluded that there is a conflict of interest
between the Company and Indemnitee in the conduct of any such defense, or (C)
the Company shall not continue to retain such counsel to defend such Claim,
then
the fees and expenses of Indemnitee's counsel shall be at the expense of the
Company. The Company shall have the right to conduct such defense as it sees
fit
in its sole discretion, including the right to settle any claim against
Indemnitee without the consent of the Indemnitee.
3. Additional
Indemnification Rights; Nonexclusivity.
(a) Scope. The
Company hereby agrees to indemnify Indemnitee to the fullest extent permitted
by
law, notwithstanding that such indemnification is not specifically authorized
by
the other provisions of this Agreement, the Company's Articles of Incorporation,
as amended, the Company's Bylaws or by statute. In the event of any change
after
the date of this Agreement in any applicable law, statute or rule which expands
the right of a Nevada corporation to indemnify a member of its Board of
Directors or an officer, employee, agent or fiduciary, it is the intent of
the
parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits afforded by such change. In the event of any change in any applicable
law, statute or rule which narrows the right of a Nevada corporation to
indemnify a member of its Board of Directors or an officer, employee, agent
or
fiduciary, such change, to the extent not otherwise required by such law,
statute or rule to be applied to this Agreement, shall have no effect on this
Agreement or the parties' rights and obligations hereunder except as set forth
in Section 8(a) hereof.
(b) Nonexclusivity. The
indemnification provided by this Agreement shall be in addition to any rights
to
which Indemnitee may be entitled under the Company's Articles of Incorporation,
as amended, its Bylaws, any agreement, any vote of stockholders or directors,
the Nevada Revised Statutes, or otherwise. The indemnification provided under
this Agreement shall continue as to Indemnitee for any action Indemnitee took
or
did not take while serving in an indemnified capacity even though Indemnitee
may
have ceased to serve in such capacity.
4. 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 any insurance policy, Article of Incorporation, as amended, Bylaw or
otherwise) of the amounts otherwise indemnifiable hereunder.
5. Partial
Indemnification. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of
Expenses incurred in connection with any Claim, but not, however, for the total
amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion of such Expenses to which Indemnitee is entitled.
6. Mutual
Acknowledgment. Both the Company and Indemnitee acknowledge that in
certain instances, Federal law or applicable public policy may prohibit the
Company from indemnifying its directors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future
to
undertake with the Securities and Exchange Commission to submit the question
of
indemnification to a court in certain circumstances for a determination of
the
Company's right under public policy to indemnify Indemnitee.
7. Liability
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 reputable insurance companies
providing the officers and directors of the Company with coverage for losses
from wrongful acts, or to ensure the Company's performance of its
indemnification obligations under this Agreement. Among other considerations,
the Company will weigh the costs of obtaining such insurance coverage against
the protection afforded by such coverage. In all policies of directors' and
officers' 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 directors, if Indemnitee is a
director; of the Company's officers, if Indemnitee is not a director of the
Company but is an officer; of the Company's key employees, if Indemnitee is
not
an officer or director but is a key employee; or of any combination of the
foregoing in which Indemnitee serves, if Indemnity serves in more capacities
than just a director, an officer or a key employee. 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, if the coverage provided
by
such insurance is limited by exclusions so as to provide an insufficient
benefit, or if Indemnitee is covered by similar insurance maintained by a
subsidiary or parent of the Company.
8. Exceptions. Any
other provision herein to the contrary notwithstanding, the Company shall not
be
obligated pursuant to the terms of this Agreement:
(a) Excluded
Action or Omissions. To indemnify Indemnitee for Expenses resulting
from acts, omissions or transactions for which Indemnitee is prohibited from
receiving indemnification under this Agreement or applicable law;
(b) Claims
Initiated by Indemnitee. To indemnify or advance expenses to
Indemnitee with respect to Claims initiated or brought voluntarily by Indemnitee
and not by way of defense, except (i) with respect to actions or proceedings
brought to establish or enforce a right to indemnification under this Agreement
or any other agreement or insurance policy or under the Company's Articles
of
Incorporation, as amended, or Bylaws now or hereafter in effect relating to
Claims for Indemnifiable Events, (ii) in specific cases if the Board of
Directors has approved the initiation or bringing of such Claim, or (iii) as
otherwise required under the Nevada Revised Statutes, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be;
(c) Lack
of Good Faith. To indemnify Indemnitee for any expenses incurred by
Indemnitee with respect to any proceeding instituted by Indemnitee to enforce
or
interpret this Agreement, if a court of competent jurisdiction determines that
each of the material assertions made by Indemnitee in such proceeding was not
made in good faith or was frivolous; or
(d) Claims
Under Section 16(b). To indemnify Indemnitee for expenses and the
payment of profits 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, or any similar successor statute.
9. Period
of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or in the right of the Company against Indemnitee,
Indemnitee's estate, spouse, heirs, executors or personal or legal
representatives after the expiration of one (1) year from the date of accrual
of
such cause of action, and any claim or cause of action of the Company shall
be
extinguished and deemed released unless asserted by the timely filing of a
legal
action within such one-year period; provided, however, that if any shorter
period of limitations is otherwise applicable to any such cause of action,
such
shorter period shall govern.
10. Construction
of Certain Phrases.
(a) For
purposes of this Agreement, references to the
"Company" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power
and
authority to indemnify its directors, officers, employees, agents or
fiduciaries, so that if Indemnitee is or was a director, officer, employee,
agent or fiduciary of such constituent corporation, or is or was serving at
the
request of such constituent corporation as a director, officer, employee, agent
or fiduciary of another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, Indemnitee shall stand in the same
position under the provisions of this Agreement with respect to the resulting
or
surviving corporation as Indemnitee would have with respect to such constituent
corporation if its separate existence had continued.
(b) For
purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans;
references to "fines"
shall include any excise taxes assessed on Indemnitee with respect to an
employee benefit plan; and references to "serving at
the request of the Company" shall include any
service as a director, officer, employee, agent or fiduciary of the Company
which imposes duties on, or involves services by, such director, officer,
employee, agent or fiduciary with respect to an employee benefit plan, its
participants or its beneficiaries; and if Indemnitee acted in good faith and
in
a manner Indemnitee reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan, Indemnitee shall
be
deemed to have acted in a manner "not opposed to the
best interests of the Company" as referred to in
this Agreement.
(c) For
purposes of this Agreement a "Change in
Control" shall be deemed to have occurred if, on
or after the date of this Agreement, (i) any
"person" (as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as
amended), other than a trustee or other fiduciary holding securities under
an
employee benefit plan of the Company acting in such capacity or a corporation
owned directly or indirectly by the stockholders of the Company in substantially
the same proportions as their ownership of stock of the Company, becomes the
"beneficial owner" (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities
of
the Company representing more than 50% of the total voting power represented
by
the Company's then outstanding Voting Securities (as defined in Section 10(f)
hereof), (ii) during any period of two (2) consecutive years, individuals who
at
the beginning of such period constitute the Board of Directors of the Company
and any new director whose election by the Board of Directors or nomination
for
election by the Company's stockholders was approved by a vote of at least two
thirds (2/3) 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,
or (iii) the stockholders of the Company approve a merger or consolidation
of
the Company with any other corporation other than a merger or consolidation
which would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving
entity) at least 80% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding immediately
after
such merger or consolidation, or the stockholders of the Company approve a
plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of (in one transaction or a series of related
transactions) all or substantially all of the Company's assets.
(d) For
purposes of this Agreement, "Independent Legal
Counsel" shall mean an attorney or firm of
attorneys, selected in accordance with the provisions of Section 1(c) hereof,
who shall not have otherwise performed services for the Company or Indemnitee
within the last three (3) years (other than with respect to matters concerning
the rights of Indemnitee under this Agreement, or of other indemnitees under
similar indemnity agreements).
(e) For
purposes of this Agreement, a "Reviewing
Party" shall mean any appropriate person or body
consisting of a member or members of the Company's Board of Directors or any
other person or body appointed by the Board of Directors who is not a party
to
the particular Claim for which Indemnitee are seeking indemnification, or
Independent Legal Counsel.
(f) For
purposes of this Agreement, "Voting
Securities" shall mean any securities of the
Company that vote generally in the election of directors.
11. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original.
12. Binding
Effect; Successors and Assigns. 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, consolidation or otherwise to all or substantially all of
the
business and/or assets of the Company, spouses, heirs, and personal and legal
representatives. The Company shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or otherwise)
to
all, substantially all, or a substantial part, of the business and/or assets
of
the Company, by written agreement in form and substance satisfactory to
Indemnitee, expressly to assume and agree to perform this Agreement in the
same
manner and to the same extent that the Company would be required to perform
if
no such succession had taken place. This Agreement shall continue in
effect with respect to Claims relating to Indemnifiable Events regardless of
whether Indemnitee continues to serve as a director, officer, employee, agent
or
fiduciary of the Company or of any other enterprise at the Company's
request.
13. Attorneys'
Fees. In the event that any action is instituted by Indemnitee under
this Agreement or under any liability insurance policies maintained by the
Company to enforce or interpret any of the terms hereof or thereof, Indemnitee
shall be entitled to be paid all Expenses incurred by Indemnitee with respect
to
such action, regardless of whether Indemnitee is ultimately successful in such
action, and shall be entitled to the advancement of Expenses with respect to
such action, unless, as a part of such action, a court of competent jurisdiction
over such action determines that each of the material assertions made by
Indemnitee as a basis for such action was not made in good faith or was
frivolous. In the event of an action instituted by or in the name of
the Company under this Agreement to enforce or interpret any of the terms of
this Agreement, Indemnitee shall be entitled to be paid all Expenses incurred
by
Indemnitee in defense of such action (including costs and expenses incurred
with
respect to Indemnitee's counterclaims and cross-claims made in such action),
and
shall be entitled to the advancement of Expenses with respect to such action,
unless, as a part of such action, a court having jurisdiction over such action
determines that each of Indemnitee's material defenses to such action was made
in bad faith or was frivolous.
14. Notice. All
notices and other communications required or permitted hereunder shall be in
writing, shall be effective when given, and shall in any event be deemed to
be
given (a) five (5) days after deposit with the U.S. Postal Service or other
applicable postal service, if delivered by first class mail, postage prepaid,
(b) upon delivery, if delivered by hand, (c) one (1) business day after the
business day of deposit with Federal Express or similar overnight courier,
freight prepaid, or (d) one (1) day after the business day of delivery by
facsimile transmission, if delivered by facsimile transmission, with copy by
first class mail, postage prepaid, to the parties and the following
addresses:
(i)
if to
the Company,
to: Attention:
Board of Directors
00000 Xxxxxx Xxxxx Xx #000
Address
San Juan Xxxxxxxxxx, XX 00000
Address
(ii)
if to Indemnitee,
to: Xxxx
Xxxx
Address
Address
or
at
such other address as such party may designate by ten (10) days' advance written
notice to the other party hereto.
15. Consent
to Jurisdiction. The Company and Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Nevada for all
purposes in connection with any action or proceeding which arises out of or
relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the courts of
the
State of Nevada, which shall be the exclusive and only proper forum for
adjudicating such a claim.
16. 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. Furthermore, to the fullest extent
possible, the provisions of this Agreement (including, without limitations,
each
portion of this Agreement containing any provision held to be invalid, void
or
otherwise unenforceable that is not itself invalid, void or unenforceable)
shall
be construed so as to give effect to the intent manifested by the provision
held
invalid, illegal or unenforceable.
17. Choice
of Law. This Agreement shall be governed by and its provisions
construed and enforced in accordance with the laws of the State of Nevada,
as
applied to contracts between Nevada residents, entered into and to be performed
entirely within the State of Nevada, without regard to the conflict of laws
principles thereof.
18. 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 documents required and shall do all acts that may be necessary
to secure such rights and to enable the Company effectively to bring suit to
enforce such rights.
19. Amendment
and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed
by both 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.
20. Integration
and Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous
written and oral negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties hereto.
21. No
Construction as Employment Agreement. Nothing contained in this
Agreement shall be construed as giving Indemnitee any right to be retained
in
the employ of the Company or any of its subsidiaries.
22. Faxed
Signatures. For purposes of this Agreement a faxed signature shall
constitute an original signature.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
By:
____________________
Name: Xxxxx
X. Xxxxx
Title: Director
AGREED
TO AND ACCEPTED BY:
_______________________________
Xxxx
Xxxx
