▇▇▇▇▇▇.▇▇▇, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is effective as of
_____________________ by and between ▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation,
(the "Company"), and________________________________(an "Indemnified Person").
WHERAS, the Company desires to attract and retain the services of
highly qualified individuals, such as Indemnified Person, to serve the Company
and its related entities;
WHEREAS, in order to induce Indemnified Person to continue to provide
services to the Company, the Company wishes to provide for the indemnification
of, and the advancement of expenses to, Indemnified Person to the maximum extent
permitted by law;
WHEREAS, the Company and Indemnified Person recognize the continued
difficulty in obtaining liability insurance for the Company's 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;
WHEREAS, the Company and Indemnified Person 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; and
WHEREAS, in view of the considerations set forth above, the Company
desires that Indemnified Person shall be indemnified and advanced expenses by
the Company as set forth herein;
NOW, THEREFORE, the Company and Indemnified Person hereby agree as set
forth below.
1. CERTAIN DEFINITIONS.
(a) "Change in Control" shall mean, and 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, (ii) during any period of two 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 50% 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.
(b) "Claim" shall mean, with respect to a Covered Event, any
threatened, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation, that Indemnified
Person 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.
(c) References to the "Company" shall include, in addition to
▇▇▇▇▇▇.▇▇▇, Inc. any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger to which ▇▇▇▇▇▇.▇▇▇, Inc. (or
any of its wholly owned subsidiaries) is a party 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 Indemnified
Person 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, Indemnified Person shall stand in the same position under the
provisions of this Agreement with respect to the resulting or surviving
corporation as Indemnified Person would have with respect to such constituent
corporation if its separate existence had continued.
(d) "Covered Event" shall mean any event or occurrence related
to the fact that Indemnified Person 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
Indemnified Person while serving in such capacity.
(e) "Expenses" shall mean 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, to be a witness in or to
participate in, any 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
2
withheld) of any Claim; and any federal, state, local or foreign taxes imposed
on the Indemnified Person as a result of the actual or deemed receipt of any
payments under this Agreement.
(f) "Expense Advance" shall mean a payment to Indemnified
Person pursuant to Section 3 of Expenses in advance of the settlement of or
final judgement in any action, suit, proceeding or alternative dispute
resolution mechanism, hearing, inquiry or investigation which constitutes a
Claim.
(g) "Independent Legal Counsel" shall mean an attorney or firm
of attorneys, selected in accordance with the provisions of Section 2(d) hereof,
who shall not have otherwise performed services for the Company or Indemnified
Person within the last three years (other than with respect to matters
concerning the rights of Indemnified Person under this Agreement, or of other
Indemnified Persons under similar indemnity agreements).
(h) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes assessed on
Indemnified Person 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 Indemnified Person acted in good faith and in a manner Indemnified Person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, Indemnified Person shall be deemed to have acted in
a manner "not opposed to the best interests of the Company" as referred to in
this Agreement.
(i) "Reviewing Party" shall mean, subject to the provisions of
Section 2(d), any person or body appointed by the Board of Directors in
accordance with applicable law to review the Company's obligations hereunder and
under applicable law, which may include a member or members of the Company's
Board of Directors, Independent Legal Counsel or any other person or body not a
party to the particular Claim for which Indemnified Person is seeking
indemnification.
(j) "Section" refers to a section of this Agreement unless
otherwise indicated.
(k) "Voting Securities" shall mean any securities of the
Company that vote generally in the election of directors.
2. INDEMNIFICATION.
(a) INDEMNIFICATION OF EXPENSES. Subject to the provisions of
Section 2(b) below, the Company shall indemnify Indemnified Person for Expenses
to the fullest extent permitted by law if Indemnified Person 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 Claim (whether by reason
of or arising in part out of a Covered Event), including all interest,
assessments and other charges paid or payable in connection with or in respect
of such Expenses.
3
(b) REVIEW OF INDEMNIFICATION OBLIGATIONS. Notwithstanding the
foregoing, in the event any Reviewing Party shall have determined (in a written
opinion, in any case in which Independent Legal Counsel is the Reviewing Party)
that Indemnified Person is not entitled to be indemnified hereunder under
applicable law, (i) the Company shall have no further obligation under Section
2(a) to make any payments to Indemnified Person not made prior to such
determination by such Reviewing Party, and (ii) the Company shall be entitled to
be reimbursed by Indemnified Person (who hereby agrees to reimburse the Company)
for all Expenses theretofore paid to Indemnified Person to which Indemnified
Person is not entitled hereunder under applicable law; provided, however, that
if Indemnified Person has commenced or thereafter commences legal proceedings in
a court of competent jurisdiction to secure a determination that Indemnified
Person is entitled to be indemnified hereunder under applicable law, any
determination made by any Reviewing Party that Indemnified Person is not
entitled to be indemnified hereunder under applicable law shall not be binding
and Indemnified Person shall not be required to reimburse the Company for any
Expenses theretofore paid in indemnifying Indemnified Person until a final
judicial determination is made with respect thereto (as to which all rights of
appeal therefrom have been exhausted or lapsed). Indemnified Person's obligation
to reimburse the Company for any Expenses shall be unsecured and no interest
shall be charged thereon.
(c) INDEMNIFIED PERSON'S RIGHTS ON UNFAVORABLE DETERMINATION,
BINDING EFFECT. If any Reviewing Party determines that Indemnified Person
substantively is not entitled to be indemnified hereunder in whole or in part
under applicable law, Indemnified Person shall have the right to commence
litigation seeking an initial determination by the court or challenging any such
determination by such Reviewing Party or any aspect thereof, including the legal
or factual bases therefor, and, subject to the provisions of Section 16, the
Company hereby consents to service of process and to appear in any such
proceeding. Absent such litigation, any determination by any Reviewing Party
shall be conclusive and binding on the Company and Indemnified Person.
(d) SELECTION OF REVIEWING PARTY, CHANGE IN CONTROL. If there
has not been a Change in Control, any 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),
any Reviewing Party with respect to all matters thereafter arising concerning
the rights of Indemnified Person to indemnification of Expenses under this
Agreement or any other agreement or under the Company's Certificate of
Incorporation or Bylaws as now or hereafter in effect, or under any other
applicable law, if desired by Indemnified Person, shall be Independent Legal
Counsel selected by Indemnified Person 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 Indemnified Person as to
whether and to what extent Indemnified Person would be entitled to be
indemnified hereunder 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 indemnify fully such counsel against any
and all expenses (including reasonable attorneys' fees), claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant
hereto. Notwithstanding any other provision of this Agreement, the Company
4
shall not be required to pay Expenses of more than one Independent Legal Counsel
in connection with all matters concerning a single Indemnified Person, and such
Independent Legal Counsel shall be the Independent Legal Counsel for any or all
other Indemnified Persons unless (i) the Company otherwise determines or (ii)
any Indemnified Person shall provide a written statement setting forth in detail
a reasonable objection to such Independent Legal Counsel representing other
Indemnified Persons.
(e) MANDATORY PAYMENT OF EXPENSES. Notwithstanding any other
provision of this Agreement other than Section 10 hereof, to the extent that
Indemnified Person has been successful on the merits or otherwise, including,
without limitation, the dismissal of an action without prejudice, in defense of
any Claim, Indemnified Person shall be indemnified against all Expenses incurred
by Indemnified Person in connection therewith.
3. EXPENSE ADVANCES.
(a) OBLIGATION TO MAKE EXPENSE ADVANCES. Upon receipt of a
written undertaking by or on behalf of the Indemnified Person to repay such
amounts if it shall ultimately be determined that the Indemnified Person is not
entitled to be indemnified therefore by the Company hereunder under applicable
law, the Company shall make Expense Advances to Indemnified Person.
(b) FORM OF UNDERTAKING. Any obligation to repay any Expense
Advances hereunder pursuant to a written undertaking by the Indemnified Person
shall be unsecured and no interest shall be charged thereon.
(c) DETERMINATION OF REASONABLE EXPENSE ADVANCES. The parties
agree that for the purposes of any Expense Advance for which Indemnified Person
has made written demand to the Company in accordance with this Agreement, all
Expenses included in such Expense Advance that are certified by affidavit of
Indemnified Person's counsel as being reasonable shall be presumed to be
reasonable.
4. PROCEDURES FOR INDEMNIFICATION AND EXPENSE ADVANCES.
(a) TIMING OF PAYMENTS. All payments of Expenses (including
without limitation Expense Advances) by the Company to the Indemnified Person
pursuant to this Agreement shall be made to the fullest extent permitted by law
as soon as practicable after written demand by Indemnified Person therefor is
presented to the Company, but in no event later than thirty (30) business days
after such written demand by Indemnified Person is presented to the Company,
except in the case of Expense Advances, which shall be made no later than ten
(10) business days after such written demand by Indemnified Person is presented
to the Company.
(b) NOTICE/COOPERATION BY INDEMNIFIED PERSON. Indemnified
Person shall, as a condition precedent to Indemnified Person's right to be
indemnified or Indemnified Person's right to receive Expense Advances under this
Agreement, give the Company notice in writing as soon as
5
practicable of any Claim made against Indemnified Person for which
indemnification will or could be sought under this Agreement. Notice to the
Company shall be directed to the Chief Executive Officer of the Company at the
address shown on the signature page of this Agreement (or such other address as
the Company shall designate in writing to Indemnified Person). In addition,
Indemnified Person shall give the Company such information and cooperation as it
may reasonably require and as shall be within Indemnified Person'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 Indemnified
Person 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
this Agreement or applicable law. In addition, neither the failure of any
Reviewing Party to have made a determination as to whether Indemnified Person
has met any particular standard of conduct or had any particular belief, nor an
actual determination by any Reviewing Party that Indemnified Person has not met
such standard of conduct or did not have such belief, prior to the commencement
of legal proceedings by Indemnified Person to secure a judicial determination
that Indemnified Person should be indemnified under this Agreement under
applicable law, shall be a defense to Indemnified Person's claim or create a
presumption that Indemnified Person has not met any particular standard of
conduct or did not have any particular belief. In connection with any
determination by any Reviewing Party or otherwise as to whether the Indemnified
Person is entitled to be indemnified hereunder under applicable law, the burden
of proof shall be on the Company to establish that Indemnified Person 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 4(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 the Indemnified Person, all amounts payable as a result of such
Claim in accordance with the terms of such policies.
(e) SELECTION OF COUNSEL. In the event the Company shall be
obligated hereunder to provide indemnification for or make any Expense Advances
with respect to the Expenses of any Claim, the Company, if appropriate, shall be
entitled to assume the defense of such Claim with counsel approved by
Indemnified Person (which approval shall not be unreasonably withheld) upon the
delivery to Indemnified Person of written notice of the Company's election to do
so. After delivery of such notice, approval of such counsel by Indemnified
Person and the retention of such counsel by the Company, the Company will not be
liable to Indemnified Person under this Agreement for any fees or expenses of
separate counsel subsequently retained by or on behalf of Indemnified Person
with respect to the same Claim; provided that, (i) Indemnified Person shall have
the right to employ Indemnified Person's separate counsel in any such Claim at
Indemnified Person's expense and (ii) if (A) the employment of separate counsel
by Indemnified Person has been
6
previously authorized by the Company, (B) Indemnified Person shall have
reasonably concluded, based upon the written advice of counsel, that it is
reasonably likely that there will be a conflict of interest between the Company
and Indemnified Person in the conduct of any such defense, or (C) the Company
shall not continue aim, then the reasonable fees and expenses of Indemnified
Person's separate counsel shall be Expenses for which Indemnified Person may
receive indemnification or Expense Advances hereunder.
5. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.
(a) SCOPE. The Company hereby agrees to indemnify the
Indemnified Person 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 Certificate of Incorporation, 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 Delaware
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
Indemnified Person 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 Delaware 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 10(a) hereof
(b) NONEXCLUSIVITY. The indemnification and the payment of
Expense Advances provided by this Agreement shall be in addition to any rights
to which Indemnified Person may be entitled under the Company's Certificate of
Incorporation, its Bylaws, any other agreement, any vote of stockholders or
disinterested directors, the General Corporation Law of the State of Delaware,
or otherwise. The indemnification and the payment of Expense Advances provided
under this Agreement shall continue as to Indemnified Person for any action
taken or not taken while serving in an indemnified capacity even though
subsequent thereto Indemnified Person may have ceased to serve in such capacity.
6. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under
this Agreement to make any payment in connection with any Claim made against
Indemnified Person to the extent Indemnified Person has otherwise actually
received payment (under any insurance policy, provision of the Company's
Certificate of Incorporation, Bylaws or otherwise) of the amounts otherwise
payable hereunder.
7. PARTIAL INDEMNIFICATION. If Indemnified Person 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
all of the total amount thereof, the Company shall nevertheless indemnify
Indemnified Person for the portion of such Expenses to which Indemnified Person
is entitled.
7
8. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnified Person
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. Indemnified Person 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 Indemnified Person.
9. LIABILITY INSURANCE. To the extent the Company maintains liability
insurance applicable to directors, officers, employees, agents or fiduciaries,
Indemnified Person shall be covered by such policies in such a manner as to
provide Indemnified Person the same rights and benefits as are provided to the
most favorably insured of the Company's directors, if Indemnified Person is a
director; or of the Company's officers, if Indemnified Person is not a director
of the Company but is an officer; or of the Company's key employees, agents or
fiduciaries, if Indemnified Person is not an officer or director but is a key
employee, agent or fiduciary.
10. EXCEPTIONS. Notwithstanding any other provision of this Agreement,
the Company shall not be obligated pursuant to the terms of this Agreement:
(a) EXCLUDED ACTION OR OMISSIONS. To indemnify or make Expense
Advances to Indemnified Person with respect to Claims arising out of acts,
omissions or transactions for which Indemnified Person is prohibited from
receiving indemnification under applicable law.
(b) CLAIMS INITIATED BY INDEMNIFIED PERSON. To indemnify or
make Expense Advances to Indemnified Person with respect to Claims initiated or
brought voluntarily by Indemnified Person and not by way of defense,
counterclaim or crossclaim, except (i) with respect to actions or proceedings
brought to establish or enforce a right to indemnification under this Agree ment
or any other agreement or insurance policy or under the Company's Certificate of
Incorporation or Bylaws now or hereafter in effect relating to Claims for
Covered 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
Section 145 of the Delaware General Corporation Law, regardless of whether
Indemnified Person ultimately is determined to be entitled to such
indemnification, Expense Advances, or insurance recovery, as the case may be.
(c) LACK OF GOOD FAITH. To indemnify Indemnified Person for
any Expenses incurred by the Indemnified Person with respect to any action
instituted (i) by Indemnified Person to enforce or interpret this Agreement, if
a court having jurisdiction over such action determines as provided in Section
13 that each of the material assertions made by the Indemnified Person as a
basis for such action was not made in good faith or was frivolous, or (ii) by or
in the name of the Company to enforce or interpret this Agreement, if a court
having jurisdiction over such action determines as provided in Section 13 that
each of the material defenses asserted by Indemnified Person in such action was
made in bad faith or was frivolous.
8
(d) CLAIMS UNDER SECTION 16(b). To indemnify Indemnified
Person for Expenses and the payment of profits arising from the purchase and
sale by Indemnified Person of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar successor statute.
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 or assets of the Company), spouses, heirs and
personal and legal representatives. The Company shall require and cause any
successor (whether direct or indirect, and whether by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial part, of
the business or assets of the Company, by written agreement in form and
substance reasonably satisfactory to Indemnified Person, 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 regardless of whether Indemnified Person
continues to serve as a director, officer, employee, agent or fiduciary (as
applicable) of the Company or of any other enterprise at the Company's request.
13. EXPENSES INCURRED IN ACTION RELATING TO ENFORCEMENT OR
INTERPRETATION. In the event that any action is instituted by Indemnified Person
under this Agreement or under any liability insurance policies maintained by the
Company to enforce or interpret any of the terms hereof or thereof, Indemnified
Person shall be entitled to be indemnified for all Expenses incurred by
Indemnified Person with respect to such action (including, without limitation,
reasonable attorneys' fees), regardless of whether Indemnified Person is
ultimately successful in such action, unless as a part of such action a court
having jurisdiction over such action makes a final judicial determination (as to
which all rights of appeal therefrom have been exhausted or lapsed) that each of
the material assertions made by Indemnified Person as a basis for such action
was not made in good faith or was frivolous; provided, however, that until such
final judicial determination is made, Indemnified Person shall be entitled under
Section 3 to receive payment of Expense Advances hereunder with respect to such
action. 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,
Indemnified Person shall be entitled to be indemnified for all Expenses incurred
by Indemnified Person in defense of such action (including without limitation
costs and expenses incurred with respect to Indemnified Person's counterclaims
and cross-claims made in such action), unless as a part of such action a court
having jurisdiction over such action makes a final judicial determination (as to
which all rights of appeal therefrom have been exhausted or lapsed) that each of
the material defenses asserted by Indemnified Person in such action was made in
bad faith or was frivolous; PROVIDED, HOWEVER, that until such final judicial
determination is made, Indemnified Person shall be entitled under Section 3 to
receive payment of Expense Advances hereunder with respect to such action.
9
14. 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
Indemnified Person, Indemnified Person's estate, spouse, heirs, executors or
personal or legal representatives after the expiration of two years 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 two 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.
15. NOTICE. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and signed for by the party addressed, on the date of such
delivery, or (ii) if mailed by domestic certified or registered mail with
postage prepaid, on the third business day after the date postmarked. Addresses
for notice to either party are as shown on the signature page of this Agreement,
or as subsequently modified by written notice.
16. CONSENT TO JURISDICTION. The Company and Indemnified Person each
hereby irrevocably consents to the jurisdiction of the courts of the State of
Delaware for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agrees that any action instituted
under this Agreement shall be commenced, prosecuted and continued only in the
Court of Chancery of the State of Delaware in and for New Castle County, which
shall be the exclusive and only proper forum for adjudicating such a claim.
17. SEVERABILITY. The provisions of this Agreement shall be severable
in the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement
(including without limitation 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.
18. CHOICE OF LAW. This Agreement, and all rights, remedies,
liabilities, powers and duties of the parties to this Agreement, shall be
governed by and construed in accordance with the laws of the State of Delaware
as applied to contracts between Delaware residents entered into and to be
performed entirely in the State of Delaware without regard to principles of
conflicts of laws.
19. 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 Indemnified Person, 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.
20. 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
10
hereto. No waiver of any of the provisions of this Agreement shall be deemed to
be or shall constitute a waiver of any other provisions hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver.
21. 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.
22. NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing contained in this
Agreement shall be construed as giving Indemnified Person any right to be
retained in the employ of the Company or any of its subsidiaries or affiliated
entities.
IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above written.
▇▇▇▇▇▇.▇▇▇, Inc.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Address:
------------------------
AGREED TO AND ACCEPTED
INDEMNIFIED PERSON:
------------------------------
(signature)
Name:
----------------------
Address:
-------------------
11