Exhibit 10.12
FORM OF
INDEMNIFICATION AGREEMENT
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THIS INDEMNIFICATION AGREEMENT (the "Agreement") is entered into as of this
___ day of _______________, 1999, by and between Web Street, Inc., a Delaware
corporation (the "Corporation"), and _________________ ("Indemnitee").
RECITALS
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a. The Corporation is aware that because of the increased exposure
to litigation costs and risks resulting from service to corporations,
talented and experienced persons are increasingly reluctant to serve
or continue serving as directors or executive officers of corporations
unless they are protected by comprehensive liability insurance and
indemnification;
b. Plaintiffs often seek damages in such large amounts, and the
costs of litigation may be so great (whether or not the case is
meritorious), that the defense and/or settlement of such litigation is
usually beyond the personal resources of directors and executive
officers;
c. Based upon their experience as business managers, the Board of
Directors of the Corporation (the "Board") has concluded that, to
retain and attract talented and experienced individuals to serve as
directors and executive officers of the Corporation, it is appropriate
for the Corporation to contractually indemnify its directors and its
executive officers, and to assume for itself liability for expenses
and damages in connection with claims against such directors and
executive officers in connection with their service to the
Corporation; and
d. The Corporation believes that it is fair and proper to protect
its directors and executive officers of the Corporation from the risk
of judgments, settlements and other expenses which may occur as a
result of their service to the Corporation.
NOW, THEREFORE, the parties, intending to be legally bound, for good and
valuable consideration, hereby agree as follows:
1. Definitions.
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(a) Agent. "Agent" means a director or executive officer of the
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Corporation or a director, officer, employee, agent or fiduciary of another
foreign or domestic corporation, partnership, joint venture, trust or other
enterprise serving at the request, for the convenience, or to represent the
interests of the Corporation.
(b) Change in Control. "Change in Control" means the happening of any
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of the following events:
(i) An acquisition by any individual, entity or group, within
the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), (a "Person"), of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of
twenty-five percent (25%) or more of either (1) the then
outstanding shares of common stock of the Corporation (the
"Outstanding Common Stock") or (2) the combined voting power
of the then outstanding voting securities of the Corporation
entitled to vote generally in the election of directors (the
"Outstanding Voting Securities"); excluding, however, the
following: (1) any acquisition directly from the
Corporation, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being
so converted was itself acquired directly from the
Corporation, (2) any acquisition by the Corporation; (3) any
acquisition by ▇▇▇▇▇▇ ▇▇▇, Avi ▇▇▇ or any of their
affiliates, (4) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the
Corporation or by any corporation controlled by the
Corporation; or (5) any acquisition by any Person pursuant
to a transaction which complies with clauses (1), (2) and
(3) of subsection (iii) of this Section 1(b); or
(ii) Within any period of twenty-four (24) consecutive months, a
change in the composition of the Board such that the
individuals who, immediately prior to such period,
constituted the Board (such Board shall be hereinafter
referred to as the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board; provided,
however, for purposes hereof, that any individual who
becomes a member of the Board during such period, whose
election, or nomination for election by the Corporation's
stockholders, was approved by a vote of at least a majority
of those individuals who are members of the Board and who
were also members of the Incumbent Board (or deemed to be
such pursuant to this proviso) shall be considered as though
such individual were a member of the Incumbent Board; but,
provided further, that any such individual whose initial
assumption of office occurs as a result of either an actual
or threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board
shall not be so considered as a member of the Incumbent
Board; or
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(iii) The approval by the stockholders of the Corporation of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of
the Corporation ("Corporate Transaction"); excluding,
however, such a Corporate Transaction pursuant to which
(1) all or substantially all of the individuals and
entities who are the beneficial owners, respectively, of
the Outstanding Common Stock and Outstanding Voting
Securities immediately prior to such Corporate Transaction
will beneficially own, directly or indirectly, more than
sixty percent (60%) of, respectively, the outstanding
shares of common stock, and the combined voting power of
the outstanding voting securities entitled to vote
generally in the election of directors, as the case may
be, of the corporation resulting from such Corporate
Transaction (including, without limitation, a corporation
which as a result of such transaction owns the Corporation
or all or substantially all of the Corporation's assets,
either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Corporate Transaction, of the
Outstanding Common Stock and Outstanding Voting
Securities, as the case may be, (2) no Person (other than
the Corporation or any employee benefit plan (or related
trust) sponsored or maintained by the Corporation, by any
corporation controlled by the Corporation or by such
corporation resulting from such Corporate Transaction)
will beneficially own, directly or indirectly, more than
twenty-five percent (25%) of, respectively, the
outstanding shares of common stock of the corporation
resulting from such Corporate Transaction or the combined
voting power of the outstanding voting securities of such
corporation entitled to vote generally in the election of
directors, except to the extent that such ownership
existed with respect to the Corporation prior to the
Corporate Transaction, and (3) individuals who were
members of the Board immediately prior to the approval by
the stockholders of the Corporation of such Corporate
Transaction will constitute at least a majority of the
members of the board of directors of the corporation
resulting from such Corporate Transaction; or
(iv) The approval by the stockholders of the Corporation of a
complete liquidation or dissolution of the Corporation,
other than to a corporation pursuant to a transaction
which would comply with clauses (1), (2) and (3) of
subsection (iii) of this Section 1(b), assuming for this
purpose that such transaction were a Corporate
Transaction.
(c) Corporation. "Corporation" means Web Street, Inc., a Delaware
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corporation, its successors or assigns, or any Subsidiary of the
Corporation. "Subsidiary"
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means, and "Subsidiaries" include, (i) any company of which more than fifty
percent (50%) of the outstanding voting securities are owned directly or
indirectly by the Corporation, or which is otherwise controlled by the
Corporation, and (ii) any partnership, joint venture, trust or other entity
of which more than fifty percent (50%) of the equity interest is owned
directly or indirectly by the Corporation, or which is otherwise controlled
by the Corporation.
(d) Independent Legal Counsel. "Independent Legal Counsel" means an
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attorney or firm of attorneys, selected in accordance with the provisions
of Section 7(f) hereof, that shall not have otherwise performed services
for the Corporation or any Indemnitee within the last three (3) years,
other than with respect to matters concerning the right of Indemnitee under
this Agreement or of other indemnitees under similar indemnity agreements
with the Corporation.
(e) Liabilities. "Liabilities" means losses, claims, damages,
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liabilities, obligations, penalties, judgments, fines, settlement payments,
awards, costs, expenses and disbursements (and any and all costs, expenses
or disbursements in giving testimony or furnishing documents in response to
a subpoena or otherwise), including, without limitation, all reasonable
attorneys' fees, costs, expenses and disbursements, as and when incurred.
(f) Proceeding. "Proceeding" means any threatened, pending, or
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completed action, suit, alternative dispute resolution mechanism or other
proceeding, whether civil, criminal, administrative, investigative or any
other type whatsoever.
(g) Control. "Control" means, with respect to any person or entity,
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the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such person or entity, whether
through the ownership of voting securities, by contract or otherwise.
2. Maintenance of Liability Insurance.
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(a) D&O Insurance. The Corporation hereby covenants and agrees to and
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with Indemnitee that, so long as Indemnitee shall continue to serve as an
Agent and thereafter so long as Indemnitee shall be subject to any claim or
Proceeding by reason of the fact that Indemnitee was an Agent or in
connection with Indemnitee's acts as such an Agent, the Corporation,
subject to Section 2(b), shall obtain and maintain in full force and effect
directors' and officers' liability insurance ("D&O Insurance") in
reasonable amounts from established and reputable insurers. In all policies
of D&O Insurance, Indemnitee shall be named as an insured.
(b) Limitations on Maintaining D&O Insurance. The Corporation shall
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have no obligation to obtain and maintain D&O Insurance if the Corporation
determines in good faith and in its reasonable business judgment that D&O
Insurance is not reasonably available, the premium costs for D&O Insurance
are disproportionate to the amount of
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coverage provided or the coverage provided by the D&O Insurance is limited
by exclusions so as to provide an insufficient benefit.
3. Indemnification of Agent.
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(a) Third Party Actions. If Indemnitee is a person who was or is a
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party or is threatened to be made a party to any Proceeding (other than an
action by or in the right of the Corporation) by reason of the fact that
Indemnitee is or was an Agent of the Corporation, or by reason of anything
done or not done by Indemnitee in any such capacity or otherwise at the
request of the Corporation or of its officers, directors or stockholders,
the Corporation shall indemnify, defend and hold harmless Indemnitee
against any and all Liabilities actually and reasonably incurred by
Indemnitee in connection with the investigation, defense, settlement or
appeal of such Proceeding, so long as Indemnitee acted in good faith and in
a manner Indemnitee reasonably believed to be in, or not opposed to, the
best interests of the Corporation, and, with respect to any criminal action
or Proceeding, if Indemnitee had no reasonable cause to believe his conduct
was unlawful.
(b) Derivative Actions. If Indemnitee is a person who was or is a
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party, or is threatened to be made a party, to any Proceeding by or in the
right of the Corporation to procure a judgment in its favor by reason of
the fact that Indemnitee is or was an Agent of the Corporation, or by
reason of anything done or not done by Indemnitee in any such capacity or
otherwise at the request of the Corporation or of its officers, directors
or stockholders, the Corporation shall indemnify, defend and hold harmless
Indemnitee against all Liabilities actually and reasonably incurred by such
person in connection with the investigation, defense, settlement or appeal
of 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 Corporation; provided, however, that no indemnification
under this Section 3(b) shall be made in respect of any claim, issue or
matter for which such person is adjudged to be liable for gross negligence
or willful misconduct in the performance of Indemnitee's duties to the
Corporation, unless, and only to the extent that, 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 fairly and reasonably entitled to indemnity for such
Liabilities as the court shall deem proper.
(c) Actions Where Indemnitee Is Deceased. If Indemnitee is a person
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who was or is a party or is threatened to be made a party to any Proceeding
by reason of the fact that he is or was an Agent of the Corporation, or by
reason of anything done or not done by Indemnitee in any such capacity, and
prior to, during the pendency of, or after completion of, such Proceeding,
Indemnitee shall die, then the Corporation shall indemnify, defend and hold
harmless the estate, heirs and legatees of Indemnitee against any and all
Liabilities incurred by such estate, heirs or legatees in connection with
the investigation, defense, settlement or appeal of such Proceeding on the
same basis as provided for Indemnitee in Sections 3(a) and 3(b) above.
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(d) Reduction of Liabilities. The Liabilities covered hereby shall be
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net of any payments to, or on behalf of, Indemnitee by D&O Insurance
carriers or others with respect to the subject Proceeding.
(e) Survival Regardless of Investigation. The indemnification and
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contribution provided for in this Agreement will remain in full force and
effect regardless of any investigation made by or on behalf of the
Indemnitee.
4. Indemnification as Witness.
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Notwithstanding any other provision of this Agreement, to the extent
Indemnitee is, by reason of the fact that Indemnitee is or was an Agent of
the Corporation, involved in any investigative Proceeding, including, but
not limited to, testifying as a witness or furnishing documents in response
to a subpoena or otherwise, Indemnitee shall be indemnified against any and
all Liabilities actually and reasonably incurred by or for Indemnitee in
connection therewith.
5. Advancement of Liabilities.
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Subject to the provisions of Section 6(c), until a determination that
Indemnitee is not entitled to be indemnified by the Corporation under the
terms hereof, and unless the provisions of Section 9 apply, the Corporation
shall reimburse Indemnitee for Liabilities previously paid by Indemnitee
and may advance Liabilities which the Corporation reasonably determines
will be due and payable by Indemnitee within a reasonable time after a
request for advancement is made by Indemnitee. The execution and delivery
of this Agreement by the Corporation evidences the specific approval by the
Board of the reimbursement and advancement of Liabilities as provided for
in this Section 5. As a condition to such reimbursement and/or
advancement, Indemnitee shall, at the request of the Corporation, undertake
in a manner satisfactory to the Corporation to repay such amounts
reimbursed and/or advanced, without interest, if it shall ultimately be
determined pursuant to Section 7 or 9 below that Indemnitee is not entitled
to be indemnified by the Corporation under the terms of this Agreement.
Subject to the foregoing, the reimbursement and/or advances to be made
hereunder shall be paid by the Corporation to Indemnitee within twenty (20)
business days following delivery of a written request by Indemnitee to the
Corporation, which request shall be accompanied by vouchers, invoices and
similar evidence documenting the amounts incurred or to be incurred by
Indemnitee.
6. Indemnification Procedures.
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(a) Notice by Indemnitee. Promptly after receipt by Indemnitee of
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notice of the commencement or threat of commencement of any Proceeding,
Indemnitee shall, if Indemnitee believes that indemnification with respect
thereto may be sought from the Corporation under this Agreement, deliver
written notice to the Corporation of the commencement or threat of
commencement thereof, provided that any failure to so notify
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the Corporation shall not relieve the Corporation of its obligations
hereunder, except to the extent that such failure or delay increases the
liability of the Corporation hereunder.
(b) D&O Insurance. If, at the time of receipt of a notice pursuant
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to Section 6(a) above, the Corporation has D&O Insurance in effect, the
Corporation shall give prompt notice of the Proceeding or claim to its
insurers in accordance with the procedures set forth in the applicable
policies. The Corporation shall thereafter take all necessary or desirable
action to cause such insurers to pay all amounts payable as a result of
such Proceeding in accordance with the terms of such policies, and
Indemnitee shall not take any action (by waiver, settlement or otherwise)
which would adversely affect the ability of the Corporation to obtain
payment from its insurers.
(c) Assumption of Defense. In the event the Corporation shall be
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obligated under this Agreement to pay the Liabilities of Indemnitee, the
Corporation shall be entitled to assume the defense (with counsel
reasonably acceptable to Indemnitee, approval thereof not to be
unreasonably withheld) of the Proceeding to which the Liabilities relate.
The Corporation agrees to promptly notify Indemnitee in writing upon its
election to assume such defense. Once the Corporation (i) provides
Indemnitee with written notice of its election to assume such defense, (ii)
obtains approval from Indemnitee of its proposed counsel and (iii) retains
such counsel, the Corporation will not be liable to Indemnitee under this
Agreement for any attorney's fees or other Liabilities subsequently
incurred by Indemnitee with respect to such Proceeding, unless (x) the
Liabilities incurred by Indemnitee were previously authorized by the
Corporation or (y) counsel for Indemnitee shall have provided the
Corporation with a written opinion of counsel stating that there is a
likelihood that a conflict of interest exists between the Corporation and
Indemnitee in the conduct of any such defense.
7. Determination of Right to Indemnification.
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(a) Successful Proceeding. To the extent Indemnitee has been
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successful, on the merits or otherwise, in the defense of any Proceeding
referred to in Sections 3(a) or 3(b) above, the Corporation shall indemnify
Indemnitee against all Liabilities incurred by him in connection therewith.
If Indemnitee is not wholly successful in such Proceeding, but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, then the Corporation shall
indemnify Indemnitee against all Liabilities actually or reasonably
incurred by or for him in connection with each successfully resolved claim,
issue or matter. For purposes of this Section 7(a), and without
limitation, the termination of any Proceeding, or any claim, issue or
matter in such a Proceeding, by dismissal, with or without prejudice, shall
be deemed to be a successful result as to such Proceeding, claim, issue or
matter, so long as there has been no finding (either adjudicated or
pursuant to Section 7(c) below) that Indemnitee (i) did not act in good
faith, (ii) did not act in a manner reasonably believed to be in, or not
opposed to, the best interests of the Corporation, or (iii) with respect to
any criminal proceeding, had reasonable grounds to believe his conduct was
unlawful.
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(b) Other Proceedings. In the event that Indemnitee has not been
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successful in the defense of less than all claims, issues or matters of any
Proceeding referred to in Sections 3(a) or 3(b) above, the Corporation
shall nevertheless indemnify Indemnitee against all Liabilities incurred by
him in connection therewith, unless and only to the extent that the forum
listed in Section 7(c) below determines that Indemnitee has not met the
applicable standard of conduct set forth in Sections 3(a) or 3(b) above
required to entitle Indemnitee to such indemnification.
(c) Forum in Event of Dispute. The determination that indemnification
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of Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct set forth in Sections 3(a) or 3(b) shall be
made (i) by the Board, by a majority vote of the directors who are not
parties to such Proceeding, even though less than a quorum or (ii) by a
committee of such disinterested directors designated by a majority of such
disinterested directors, even though less than a quorum, or (iii) if there
are no such disinterested directors, or if such disinterested directors
shall so direct, by independent legal counsel in a written opinion, or (iv)
by the stockholders of the Corporation. The choice of which forum shall
make the determination shall be made by the Board. The forum shall act in
the utmost good faith to assure Indemnitee a complete opportunity to
present to the forum Indemnitee's case that Indemnitee has met the
applicable standard of conduct.
(d) Appeal to Court. Notwithstanding a determination by any forum
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listed in Section 7(c) above that Indemnitee is not entitled to
indemnification with respect to a specific Proceeding, Indemnitee shall
have the right to apply to the court in which that Proceeding is or was
pending or any other court of competent jurisdiction for the purpose of
enforcing Indemnitee's right to indemnification pursuant to this Agreement.
(e) Indemnity for Liabilities in Enforcement of Agreement.
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Notwithstanding any other provision in this Agreement to the contrary, the
Corporation shall indemnify Indemnitee against all Liabilities incurred by
Indemnitee in connection with any other Proceeding between the Corporation
and Indemnitee involving the interpretation or enforcement of the rights of
Indemnitee under this Agreement, unless a court of competent jurisdiction
finds that the material claims and/or defenses of Indemnitee in any such
Proceeding were frivolous or made in bad faith.
(f) Change in Control. Notwithstanding any other provision of this
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Agreement to the contrary, the Corporation agrees that if there is a Change
in Control, other than a Change in Control which has been approved by a
majority of the Board who were directors immediately prior to such Change
in Control, then, with respect to all matters thereafter arising concerning
the rights of Indemnitee to payments of Liabilities under this Agreement or
any other agreement or under the Certificate of Incorporation or By-laws of
the Corporation, as now or hereafter in effect, Independent Legal Counsel
shall be selected on behalf of Indemnitee and all persons who are the
beneficiaries of indemnification agreements with the Corporation similar to
this Agreement by a committee consisting of those persons who were members
of the Board immediately prior to such
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Change in Control and who are no longer serving on the Board, and such
selection shall be approved by the Corporation, which approval shall not be
unreasonably withheld. The Independent Legal Counsel, among other things,
shall render its written opinion to the Corporation and Indemnitee as to
whether and to what extent Indemnitee would be permitted to be indemnified
under applicable law. The Corporation agrees to abide by such opinion and
to pay the reasonable fees of the Independent Legal Counsel referred to,
above and to fully indemnify such, Independent Legal 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.
8. Contribution.
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If and to the extent that a final adjudication shall specify that the
Corporation is not obligated to indemnify Indemnitee under this Agreement
for any reason (including but not limited to the exclusion set forth in
Section 9 hereof) in respect of any Proceeding, then the Corporation shall
contribute to the amount of Liabilities reasonably incurred and paid or
payable by Indemnitee in connection with such Proceeding in such proportion
as is appropriate (i) to reflect the relative benefits received by the
Corporation, on the one hand, and Indemnitee, on the other hand, from the
transaction with respect to which such Proceeding arose, and (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in
such proportion to reflect not only the relative benefits referred to in
clause (i) but also the relative fault of the Corporation, on the one hand,
and Indemnitee, on the other hand, in connection with the circumstances
which resulted in such Liabilities, as well as any other relevant equitable
considerations. The relative fault of the Corporation, on the one hand,
and Indemnitee, on the other hand, shall be determined by reference to,
among other things, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent the circumstances
resulting in such Liabilities. The Corporation agrees that it would not be
just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation or any other method of allocation which
does not take account of the foregoing equitable considerations.
9. Exceptions.
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(a) Claims Initiated by Indemnitee. Notwithstanding any other
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provision herein to the contrary, the Corporation shall not be obligated
pursuant to the terms of this Agreement to indemnify or advance Liabilities
to Indemnitee with respect to Proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to
Proceedings brought to establish or enforce a right to indemnification
under this Agreement, but such indemnification or advancement of expenses
may be provided by the Corporation in specific cases if the Board finds it
to be appropriate.
(b) Unauthorized Settlements. Notwithstanding any other provision
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herein to the contrary, the Corporation shall not be obligated pursuant to
the terms of this Agreement to indemnify Indemnitee under this Agreement
for any amount paid in
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settlement of a Proceeding without the prior written consent of the
Corporation to such settlement.
(c) No Duplicative Payment. The Corporation shall not be liable under
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this Agreement to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or
otherwise.
(d) Claim Under Section 16(b). Notwithstanding any other provision
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herein to the contrary, the Corporation shall not be obligated to indemnify
any Indemnitee for expenses and the payment of profits arising from the
purchase and sale by such Indemnitee of securities in violation of Section
16(b) of the Exchange Act, or any similar successor statute; or
(e) Unlawful Indemnification. Notwithstanding any other provision
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herein to the contrary, the Corporation shall not be obligated to indemnify
an Indemnitee if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful.
10. Certificate of Incorporation and By-laws.
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The Corporation agrees that the Certificate of Incorporation and By-
laws of the Corporation in effect on the date hereof shall not be amended
to reduce, limit, hinder or delay (a) the rights of Indemnitee granted
hereby, or (b) the ability of the Corporation to indemnify Indemnitee as
required hereby. The Corporation further agrees that it shall exercise the
powers granted to it under its Certificate of Incorporation and By-laws and
by applicable law to indemnify any Indemnitee to the fullest extent
possible as required hereby.
11. Non-exclusivity.
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The provisions for indemnification and advancement of Liabilities set
forth in this Agreement shall not be deemed exclusive of any other rights
which Indemnitee may have under any provision of law, the Corporation's
Certificate of Incorporation or By-laws, the vote of the Corporation's
stockholders or disinterested directors, other agreements or otherwise.
12. Interpretation of Agreement.
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It is understood that the parties hereto intend this Agreement to be
interpreted and enforced so as to provide indemnification to Indemnitee to
the fullest extent now or hereafter permitted by law.
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13. Mutual Acknowledgment.
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The Corporation and Indemnitee acknowledge that in certain instances,
federal law or applicable public policy may prohibit the Corporation from
indemnifying Indemnitee in his capacity as an Agent under this Agreement or
otherwise.
14. Severability.
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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 the
Agreement (including, without limitation, all portions of any paragraphs of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable) shall not in any way be effected 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 manifested by the
provision held invalid, illegal or unenforceable and to give effect to
Section 12 hereof.
15. Modification and Waiver.
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No supplement, modification or amendment to this Agreement shall be
binding unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provisions hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver.
16. Subrogation.
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In the event that the Corporation makes any payment under this
Agreement, the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of Indemnitee, who shall execute
all papers and do all things that may be necessary to secure such rights,
including but not limited to the execution of such documents as shall be
necessary to enable the Corporation effectively to bring suit to enforce
such rights.
17. Survival, Successors, and Assigns.
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Indemnitee's rights under this Agreement shall continue after
Indemnitee has ceased acting as an Agent of the Corporation. The terms of
this Agreement shall be binding on and inure to the benefit of the
Corporation and its successors and assigns and shall be binding on and
inure to the benefit of Indemnitee and Indemnitee's heirs, executors and
administrators.
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18. Notices.
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All notices, demands, consents, requests, approvals and other
communications between the parties pursuant to this Agreement must be in
writing and will be deemed given when delivered in person, one (1) business
day after being deposited with a nationally recognized overnight courier
service, three (3) business days after being deposited in the U.S. Mail,
registered or certified mail, return receipt requested, or one (1) business
day after being sent by facsimile (with receipt acknowledged), to the
Corporation at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Attn: General
Counsel) its principal office in Chicago, Illinois and to Indemnitee at
Indemnitee's address as shown on the Corporation's records. The
Corporation or Indemnitee may change its address for notice purposes by
delivering notice to the Corporation in accordance with this Section 18.
All notices sent to the Corporation shall also be delivered to ▇▇▇▇▇▇
▇▇▇▇▇▇ & Zavis, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇, Esq., Facsimile No. (312-902-1061).
19. Governing Law.
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This Agreement shall be governed exclusively by and construed
according to the laws of the State of Delaware, without regard to its
principles of conflicts of laws.
20. Counterparts.
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This agreement may be executed in counterparts, each of which when so
executed and delivered shall be deemed an original, and such counterparts
together shall constitute one instrument.
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The parties hereto have entered into this Indemnification Agreement
effective as of the date first above written.
WEB STREET, INC.
By:_____________________________
Its:____________________________
INDEMNITEE:
________________________________
________________________________
________________________________
(Print Address)
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