INDEMNIFICATION AGREEMENT dated as of August __, 2009 between Dole Food Company, Inc. (the “Company”), and (“Indemnitee”)
Exhibit 10.12
INDEMNIFICATION AGREEMENT dated as of August __, 2009 between
▇▇▇▇ Food Company, Inc.
(the “Company”), and (“Indemnitee”)
WHEREAS, the Board of Directors has determined that the inability to attract and retain
qualified persons as directors and officers is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons that there shall be adequate
certainty of protection through insurance and indemnification against risks of claims and actions
against them arising out of their service to and activities on behalf of the Company; and
WHEREAS, the Company has adopted provisions in its Certificate of Incorporation and By-laws
providing for indemnification and advancement of expenses of its directors and officers to the
fullest extent permitted by the Delaware General Corporation Law, and the Company wishes to clarify
and enhance the rights and obligations of the Company and Indemnitee with respect to
indemnification and advancement of expenses; and
WHEREAS, in order to induce and encourage highly experienced and capable persons such as
Indemnitee to serve and continue to serve as directors and officers of the Company and in any other
capacity with respect to the Company, and to otherwise promote the desirable end that such persons
shall resist what they consider unjustified lawsuits and claims made against them in connection
with the good faith performance of their duties to the Company, with the knowledge that certain
costs, judgments, penalties, fines, liabilities and expenses incurred by them in their defense of
such litigation are to be borne by the Company and they shall receive the maximum protection
against such risks and liabilities as may be afforded by law, the Board of Directors of the Company
has determined that the following Agreement is reasonable and prudent to promote and ensure the
best interests of the Company and its stockholders; and
WHEREAS, the Company desires to have Indemnitee continue to serve as a director or officer of
the Company and in such other capacity with respect to the Company as the Company may request, as
the case may be, free from undue concern for unpredictable, inappropriate or unreasonable legal
risks and personal liabilities by reason of Indemnitee acting in good faith in the performance of
Indemnitee’s duty to the Company; and Indemnitee desires to continue so to serve the Company,
provided, and on the express condition, that he or she is furnished with the indemnity set forth
hereinafter;
Now, therefore, in consideration of Indemnitee’s continued service as a director or officer of
the Company, the parties hereto agree as follows:
1. Service by Indemnitee. Indemnitee shall serve and/or continue to serve as a
director or officer of the Company faithfully and to the best of Indemnitee’s ability so long as
Indemnitee is duly elected or appointed and until such time as Indemnitee is removed as permitted
by law or tenders a resignation in writing.
2. Indemnification and Advancement of Expenses. The Company shall indemnify
Indemnitee, and shall pay to Indemnitee in advance of the final disposition of any Proceeding all
Expenses incurred by Indemnitee, to the fullest extent permitted by the Delaware General
Corporation Law in effect on the date of this Agreement or as such law may from time to time be
amended (but, in the case of any such amendment, only to the extent that such amendment permits the
Company to provide broader rights than said law permitted the Company to provide prior to such
amendment). Without diminishing the scope of the rights provided by this Section, the rights of
Indemnitee to indemnification and advancement of Expenses provided hereunder shall include but
shall not be limited to those rights hereinafter set forth, except that no indemnification or
advancement of Expenses shall be paid to Indemnitee:
(a) to the extent expressly prohibited by Delaware law or the Certificate of Incorporation
and By-laws of the Company;
(b) for which payment is actually made to Indemnitee under a valid and collectible insurance
policy or under a valid and enforceable indemnity clause, provision of the certificate of
incorporation or by-laws, or agreement of the Company or any other company or organization
where Indemnitee is serving at the request of the Company, except in respect of any
indemnity exceeding the payment under such insurance, indemnity clause, provision of the
certificate of incorporation or by-laws, or agreement; or
(c) in connection with an action, suit or proceeding, or part thereof (including claims and
counterclaims) initiated by Indemnitee, except a judicial proceeding or arbitration pursuant
to Section 10 to enforce rights under this Agreement, unless the action, suit or proceeding
(or part thereof) was authorized by the Board of Directors of the Company; or
(d) with respect to any Proceeding brought by or on behalf of the Company against Indemnitee
that is authorized by the Board of Directors of the Company, except as provided in Sections
4, 5 and 6 below.
3. Action or Proceedings Other than an Action by or in the Right of the Company.
Except as limited by Section 2 above, Indemnitee shall be entitled to the
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indemnification rights provided in this Section if Indemnitee is a party or is threatened to
be made a party to any Proceeding (other than an action by or in the name of the Company) by reason
of the fact that Indemnitee is or was a director, officer, employee, agent or fiduciary of the
Company, or is or was serving at the request of the Company as a director, officer, employee,
agent or fiduciary of any other entity (including, but not limited to, another corporation,
partnership, joint venture or trust); or by reason of anything done or not done by Indemnitee in
any such capacity. Pursuant to this Section, Indemnitee shall be indemnified against all costs,
judgments, penalties, fines, liabilities, amounts paid in settlement and Expenses, actually and
reasonably incurred by Indemnitee in connection with such Proceeding, if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests
of the Company, and with respect to any criminal Proceeding, had no reasonable cause to believe his
or her conduct was unlawful.
4. Indemnity in Proceedings by or in the Name of the Company. Except as limited by
Section 2 above, Indemnitee shall be entitled to the indemnification rights provided in this
Section if Indemnitee was or is a party or is threatened to be made a party to any Proceeding
brought by or in the name of the Company to procure a judgment in its favor by reason of the fact
that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company, or is
or was serving at the request of the Company as a director, officer, employee, agent or fiduciary
of any other entity (including, but not limited to, another corporation, partnership, joint venture
or trust); or by reason of anything done or not done by Indemnitee in any such capacity. Pursuant
to this Section, Indemnitee shall be indemnified against all costs, judgments, penalties, fines,
liabilities, amounts paid in settlement and Expenses, actually and reasonably incurred by
Indemnitee in connection with such Proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of the Company;
provided, however, that no such indemnification shall be made in respect of any claim, issue, or
matter as to which Delaware law expressly prohibits such indemnification by reason of any
adjudication of liability of Indemnitee to the Company, unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which such Proceeding was brought shall
determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is entitled to indemnification for such costs, judgments,
penalties, fines, liabilities, amounts paid in settlement and Expenses as such court shall deem
proper.
5. Indemnification for Costs, Charges and Expenses of Successful Party.
Notwithstanding the limitations of Section 2(d), 3 and 4 above, to the extent that Indemnitee has
been successful, on the merits or otherwise, in whole or in part, in defense of any Proceeding or
in defense of any claim, issue or matter therein, including, without limitation, the dismissal of
any action without prejudice, or if it is ultimately determined, after all appeals by a court of
competent jurisdiction, that Indemnitee is otherwise entitled to be indemnified against Expenses,
Indemnitee shall be indemnified against all Expenses actually and reasonably incurred in connection
therewith.
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6. Partial Indemnification. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the costs, judgments,
penalties, fines, liabilities, amounts paid in settlement or Expenses, actually and reasonably
incurred in connection with any Proceeding, or in connection with any judicial proceeding or
arbitration pursuant to Section 10 to enforce rights under this Agreement, but not, however, for
all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion of such costs, judgments, penalties, fines, liabilities, amounts paid in settlement and
Expenses, actually and reasonably incurred to which Indemnitee is entitled.
7. Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the maximum extent permitted by the Delaware General Corporation Law, Indemnitee
shall be entitled to indemnification against all Expenses actually and reasonably incurred or
suffered by Indemnitee or on Indemnitee’s behalf if Indemnitee appears as a witness or otherwise
incurs legal expenses as a result of or related to Indemnitee’s service as a director or officer of
the Company, in any threatened, pending or completed action, suit or proceeding, whether of a
civil, criminal, administrative, investigative, legislative or other nature, to which Indemnitee
neither is, nor is threatened to be made, a party.
8. Determination of Entitlement to Indemnification. To receive indemnification under
this Agreement, Indemnitee shall submit a written request to the Secretary of the Company. Such
request shall include documentation or information which is necessary for such determination and
which is reasonably available to Indemnitee. Upon written request by Indemnitee for
indemnification pursuant to Sections 3, 4, 5, 6 or 7 the entitlement of Indemnitee to
indemnification, to the extent not provided pursuant to the terms of this Agreement, shall be
determined by the following person or persons who shall be empowered to make such determination:
(a) the Board of Directors of the Company by a majority vote of Disinterested Directors, whether or
not such majority constitutes a quorum; (b) a committee of Disinterested Directors designated by a
majority vote of such directors, whether or not such majority constitutes a quorum; (c) if there
are no Disinterested Directors, or if the Disinterested Directors so direct, by Independent Counsel
in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee;
(d) the stockholders of the Company; or (e) in the event that a Change in Control has occurred, by
Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee. Such Independent Counsel shall be selected by the Board of Directors and
approved by Indemnitee, except that in the event that a Change in Control has occurred, Independent
Counsel shall be selected by Indemnitee. Upon failure of the Board so to select such Independent
Counsel or upon failure of Indemnitee so to approve (or so to select, in the event that a Change in
Control has occurred), such Independent Counsel shall be selected upon application to a court of
competent jurisdiction. The determination of entitlement to indemnification shall be made not
later than 30 calendar days after receipt by the Company of a written request for indemnification.
Any amounts incurred by Indemnitee in connection with a request for indemnification or payment of
Expenses hereunder, under any other agreement, any provision of the Company’s Certificate of
Incorporation and By-laws or any directors’ and officers’ liability insurance, shall be borne by
the Company. The Company hereby indemnifies Indemnitee for any such amounts and agrees to hold
Indemnitee harmless therefrom irrespective of the outcome of the determination of
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Indemnitee’s entitlement to indemnification. If the person making such determination shall
determine that Indemnitee is entitled to indemnification as to part (but not all) of the
application for indemnification, such person shall reasonably prorate such partial indemnification
among the claims, issues or matters at issue at the time of the determination.
9. Presumptions and Effect of Certain Proceedings. The Secretary of the Company
shall, promptly upon receipt of Indemnitee’s written request for indemnification, advise in writing
the Board of Directors or such other person or persons empowered to make the determination as
provided in Section 8 that Indemnitee has made such request for indemnification. Upon making such
request for indemnification, Indemnitee shall be presumed to be entitled to indemnification
hereunder and the Company shall have the burden of proof in making any determination contrary to
such presumption. If the person or persons so empowered to make such determination shall have
failed to make the requested determination with respect to indemnification within 30 calendar days
after receipt by the Company of such request, a requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to
such indemnification, absent actual and material fraud in the request for indemnification. The
termination of any Proceeding described in Sections 3 or 4 by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself: (a) create
a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company, or, with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was
unlawful; or (b) otherwise adversely affect the rights of Indemnitee to indemnification except as
may be provided herein.
10. Remedies of Indemnitee in Cases of Determination not to Indemnify or to Advance
Expenses. In the event that a determination is made that Indemnitee is not entitled to
indemnification hereunder or if payment has not been timely made following a determination of
entitlement to indemnification pursuant to Sections 8 and 9, or if Expenses are not paid pursuant
to Section 15, Indemnitee shall be entitled to final adjudication in a court of competent
jurisdiction of entitlement to such indemnification or payment. Alternatively, Indemnitee at
Indemnitee’s option may seek an award in an arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association, such award to be made within 60
calendar days following the filing of the demand for arbitration. The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration or any other claim. The
determination in any such judicial proceeding or arbitration shall be made de novo and Indemnitee
shall not be prejudiced by reason of a determination (if so made) pursuant to Sections 8 or 9 that
Indemnitee is not entitled to indemnification. If a determination is made or deemed to have been
made pursuant to the terms of Section 8 or 9 that Indemnitee is entitled to indemnification, the
Company shall be bound by such determination and is 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. The Company further agrees to stipulate in any such court or
before any such arbitrator that the Company is bound by all the provisions of this Agreement and is
precluded from making any assertions to the contrary. If the court or arbitrator shall determine
that Indemnitee is entitled to any indemnification or payment of Expenses hereunder, the Company
shall pay all Expenses actually and reasonably incurred by
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Indemnitee in connection with such adjudication or award in arbitration (including, but not
limited to, any appellate proceedings).
11. Other Rights to Indemnification. Indemnification and payment of Expenses 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 the Certificate of Incorporation or By-laws of the
Company, vote of stockholders or Disinterested Directors, provision of law, agreement or otherwise.
12. Expenses to Enforce Agreement. In the event that Indemnitee is subject to or
intervenes in any action, suit or proceeding in which the validity or enforceability of this
Agreement is at issue or seeks an adjudication or award in arbitration to enforce Indemnitee’s
rights under, or to recover damages for breach of, this Agreement, Indemnitee, if Indemnitee
prevails in whole or in part in such action, suit or proceeding, shall be entitled to recover from
the Company and shall be indemnified by the Company against any Expenses actually and reasonably
incurred by Indemnitee.
13. Continuation of Indemnity. All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee is a director, officer, employee,
agent or fiduciary of the Company or is serving at the request of the Company as a director,
officer, employee, agent or fiduciary of any other entity (including, but not limited to, another
corporation, partnership, joint venture or trust) and shall continue thereafter with respect to any
possible claims based on the fact that Indemnitee was a director, officer, employee, agent or
fiduciary of the Company or was serving at the request of the Company as a director, officer,
employee, agent or fiduciary of any other entity (including, but not limited to, another
corporation, partnership, joint venture or trust). This Agreement shall be binding upon all
successors and assigns of the Company (including any transferee of all or substantially all of its
assets and any successor by merger or operation of law) and shall inure to the benefit of the
heirs, personal representatives and estate of Indemnitee.
14. Notification and Defense of Claim. Promptly after receipt by Indemnitee of notice
of any Proceeding, Indemnitee shall, if a claim in respect thereof is to be made against the
Company under this Agreement, notify the Company in writing of the commencement thereof; but the
omission so to notify the Company shall not relieve it from any liability that it may have to
Indemnitee. Notwithstanding any other provision of this Agreement, with respect to any such
Proceeding of which Indemnitee notifies the Company:
(a) The Company shall be entitled to participate therein at its own expense; and
(b) Except as otherwise provided in this Section 14(b), to the extent that it may wish, the
Company, jointly with any other indemnifying party similarly notified, shall be entitled to
assume the defense thereof, with counsel satisfactory to Indemnitee. After
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notice from the Company to Indemnitee of its election so to assume the defense thereof, the
Company shall not be liable to Indemnitee under this Agreement for any expenses of counsel
subsequently incurred by Indemnitee in connection with the defense thereof except as
otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own
counsel in such Proceeding, but the fees and expenses of such counsel incurred after notice
from the Company of its assumption of the defense thereof shall be at the expense of
Indemnitee unless (i) the employment of counsel by Indemnitee has been authorized by the
Company, (ii) Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of the defense of such
Proceeding, or (iii) the Company shall not within 60 calendar days of receipt of notice from
Indemnitee in fact have employed counsel to assume the defense of the Proceeding, in each of
which cases the fees and expenses of Indemnitee’s counsel shall be at the expense of the
Company. The Company shall not be entitled to assume the defense of any Proceeding brought
by or on behalf of the Company or as to which Indemnitee shall have made the conclusion
provided for in (ii) above; and
(c) If the Company has assumed the defense of a Proceeding, the Company shall not be liable
to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any
Proceeding effected without the Company’s written consent. The Company shall not settle any
Proceeding in any manner that would impose any penalty or limitation on or disclosure
obligation with respect to Indemnitee without Indemnitee’s written consent. Neither the
Company nor Indemnitee shall unreasonably withhold its consent to any proposed settlement.
15. Advancement of Expenses. All Expenses incurred by Indemnitee in advance of the
final disposition of any Proceeding shall be paid by the Company at the request of Indemnitee. To
receive payment of Expenses under this Agreement, Indemnitee shall submit a written request to the
Secretary of the Company. Such request shall reasonably evidence the Expenses incurred by
Indemnitee and shall include or be accompanied by an undertaking, by or on behalf of Indemnitee, to
reimburse such amounts if it is ultimately determined, after all appeals by a court of competent
jurisdiction, that Indemnitee is not entitled to be indemnified against such Expenses by the
Company as provided by this Agreement or otherwise. Indemnitee’s undertaking to reimburse any such
amounts is not required to be secured. Each such payment of Expenses shall be made within 20
calendar days after the receipt by the Company of such written request. Indemnitee’s entitlement
to such Expenses shall include those incurred in connection with any action, suit or proceeding by
Indemnitee seeking a judgment in court or an adjudication or award in arbitration pursuant to
Section 10 of this Agreement (including the enforcement of this provision) to the extent the court
or arbitrator shall determine that Indemnitee is entitled to payment of Expenses hereunder.
16. Separability; Prior Indemnification Agreements. If any provision or provisions of
this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever (a)
the validity, legality and enforceability of the remaining provisions of this Agreement (including
without limitation, all portions of any paragraphs of this Agreement
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containing any such provision held to be invalid, illegal or unenforceable, that are not by
themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby,
and (b) to the fullest extent possible, the provisions of this Agreement (including, without
limitation, all portions of any paragraph of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent of the parties that the Company provide
protection to Indemnitee to the fullest enforceable extent. This Agreement shall supersede and
replace any prior indemnification agreements entered into by and between the Company and Indemnitee
and any such prior agreements shall be terminated upon execution of this Agreement.
17. Headings; References; Pronouns. The headings of the sections 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. References herein to section numbers are to sections of this
Agreement. All pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural as appropriate.
18. Definitions. For purposes of this Agreement:
(a) “Change in Control” means a change in control of the Company occurring after the date of
this Agreement of a nature that would be required to be reported in response to Item 5.01 of
Current Report on Form 8-K (or in response to any similar item on any similar schedule or
form) promulgated under the Securities Exchange Act of 1934, whether or not the Company is
then subject to such reporting requirement; provided, however, that, without limitation, a
Change in Control shall be deemed to have occurred if 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) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934), directly or indirectly, of securities of the Company representing 20%
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 in office
immediately prior to such person attaining such percentage, (ii) 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 Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of Directors thereafter,
or (iii) 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 stockholders 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.
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(b) “Disinterested Director” means a director of the Company who is not or was not a party
to the Proceeding in respect of which indemnification is being sought by Indemnitee.
(c) “Expenses” includes, without limitation, expenses incurred in connection with the
defense or settlement of any investigation, action, suit or other proceeding, including any
judicial, administrative, investigative, legislative or other proceedings, and appeals,
attorneys’ fees, witness fees and expenses, fees and expenses of accountants and other
advisors, retainers and disbursements and advances thereon, the premium, security for, and
other costs relating to any bond (including cost bonds, appraisal bonds or their
equivalents), and any expenses of establishing a right to indemnification or advancement
under Sections 8, 10, 12 and 15 above but shall not include the amount of judgments,
penalties, fines or amounts paid in settlement.
(d) “Independent Counsel” means a law firm or a member of a law firm that neither is
presently nor in the past five years has been retained to represent: (i) the Company or
Indemnitee in any matter material to either such party, or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would 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.
(e) “Proceeding” includes any threatened, pending or completed investigation, action, suit
or other proceeding, whether brought in the name of the Company or otherwise, against
Indemnitee, whether of a civil, criminal, administrative, investigative, legislative or
other nature, including, but not limited to, actions, suits or proceedings in which
Indemnitee may be or may have been involved as a party or otherwise, by reason of the fact
that Indemnitee is or was a director, officer, employee, agent or fiduciary of the Company,
or is or was serving, at the request of the Company, as a director, officer, employee, agent
or fiduciary of any other entity, including, but not limited to, another corporation,
partnership, joint venture or trust, or by reason of anything done or not done by Indemnitee
in any such capacity, whether or not Indemnitee is serving in such capacity at the time any
liability or expense is incurred for which indemnification or reimbursement can be provided
under this Agreement.
19. Other Provisions.
(a) This Agreement shall be interpreted and enforced in accordance with the laws of
Delaware.
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(b) 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 as evidence of the existence of this Agreement.
(c) This Agreement shall not be deemed an employment contract between the Company and any
Indemnitee who is an officer of the Company, and, if Indemnitee is an officer of the
Company, Indemnitee specifically acknowledges that Indemnitee may be discharged at any time
for any reason, with or without cause, and with or without severance compensation, except as
may be otherwise provided in a separate written contract between Indemnitee and the Company.
(d) Upon a payment to Indemnitee under this Agreement, the Company shall be subrogated to
the extent of such payment to all of the rights of Indemnitee to recover against any person
for such liability, and Indemnitee shall execute all documents and instruments required and
shall take such other actions as may be necessary to secure such rights, including the
execution of such documents as may be necessary for the Company to bring suit to enforce
such rights.
(e) No supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.
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