Exhibit 10.4
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is entered into as of
the ___ day of August, 2005, by and between CELERITY SYSTEMS, INC., a Delaware
corporation whose principal place of business is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company"), and C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, whose
address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
("▇▇▇▇▇▇▇▇").
R E C I T A L S
WHEREAS, it is essential that the Company be able to attract and retain as
directors and officers the most capable persons available;
WHEREAS, the Company's Bylaws and Certificate of Incorporation
specifically permit the Company, subject to certain exceptions and
qualifications, to indemnify directors, officers, and fiduciaries of the Company
from and against incurring any liability or damages arising out of their service
to the Company;
WHEREAS, the laws of the State of Delaware, and the Company's Bylaws and
Certificate of Incorporation, permit the Company, subject to certain exceptions
and qualifications, to enter into indemnification arrangements whereby the
Company will obligate itself to indemnify directors, officers and fiduciaries of
the Company from and against incurring any liability or damages arising out of
their service to the Company;
WHEREAS, the Company desires to employ ▇▇▇▇▇▇▇▇ as its President, Chief
Executive Officer, and Chairman of the Board, and ▇▇▇▇▇▇▇▇ desires to be so
employed, on the terms and subject to the conditions set forth in that certain
Executive Employment Agreement, of even date herewith, by and between the
Company and ▇▇▇▇▇▇▇▇ (the "Employment Agreement");
WHEREAS, in connection with ▇▇▇▇▇▇▇▇ serving as a director and officer of
the Company, the Company desires to provide ▇▇▇▇▇▇▇▇ with specific contractual
assurances of his rights to indemnification from and against incurring any
liability or damages arising out of his service to the Company; and
WHEREAS, ▇▇▇▇▇▇▇▇ is relying upon the rights afforded under this Agreement
in accepting the position of President, Chief Executive Officer, and Chairman of
the Board of the Company pursuant to the Employment Agreement.
NOW, THEREFORE, for and in consideration of the foregoing premises, and
the mutual promises and covenants contained herein, the Company and ▇▇▇▇▇▇▇▇ do
hereby covenant and agree as follows:
1. Definitions.
(a) "Company" shall include, in addition to Celerity Systems, Inc.,
any successor thereto, subsidiary thereof, or constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, fiduciaries, employees and agents, so that if
▇▇▇▇▇▇▇▇ is or was a director, officer, fiduciary, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, fiduciary, employee or agent of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, ▇▇▇▇▇▇▇▇ shall stand in the same position under the provisions of
this Agreement with respect to the resulting or surviving corporation as
▇▇▇▇▇▇▇▇ would have with respect to such constituent corporation if its separate
existence had continued.
(b) "Corporate Status" describes the status of a person who is
serving or has served: (i) as a director, officer or fiduciary of the Company,
or (ii) as a director, partner, member, trustee, officer, employee, agent, or
fiduciary of any other Entity (as defined below) at the request of the Company.
For purposes of subsection (ii) of this Section 1(b), if ▇▇▇▇▇▇▇▇ is serving or
has served as a director, partner, member, trustee, officer, employee, agent, or
fiduciary of a Subsidiary (as defined below), ▇▇▇▇▇▇▇▇ shall be deemed to be
serving at the request of the Company.
(c) "Entity" shall mean any corporation, partnership, limited
partnership, limited liability company, joint venture, trust, foundation,
association, organization or other legal entity and any group, branch, or
division of the Company or any of its Subsidiaries.
(d) "Expenses" shall mean any and all losses, claims, fees, damages,
costs, expenses, judgments, fines and liabilities (joint or several) incurred in
connection with any Proceeding (as defined below), including without limitation,
attorneys' fees, disbursements, retainers and bonds (including without
limitation, any fees, disbursements, retainers and bonds incurred by ▇▇▇▇▇▇▇▇
pursuant to Section 11 hereof), fees and disbursements of expert witnesses,
private investigators and professional advisors (including, without limitation,
accountants), court costs, transcript costs, fees of experts, travel expenses,
duplicating, printing and binding costs, telephone and fax transmission charges,
postage, delivery services, secretarial services, and other disbursements and
expenses, and including any federal, state, local or foreign taxes imposed on
▇▇▇▇▇▇▇▇ as a result of the actual or deemed receipt of any payments under this
Agreement, including all interest, assessments and other charges paid or payable
in connection with or in respect of such payments.
(e) "Proceeding" shall mean any threatened, pending or completed
claim, action, suit, arbitration, alternate dispute resolution process,
investigation, administrative, legislative, or regulatory hearing, appeal, or
any other proceeding, whether civil, criminal, administrative or investigative,
whether formal or informal, and including without limitation, any claim, action
or investigations made under the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, their respective state
counterparts, and/or any rule or regulation promulgated thereunder or any other
United States federal or state, or other statutory law or regulation, domestic
or foreign, at common law or otherwise, which relate directly or indirectly to
(i) the registration, purchase, sale or ownership of any securities of the
Company or its Subsidiaries, or (ii) any fiduciary obligation owed with respect
to the Company, its Subsidiaries and its shareholders; provided, however, that
the term "Proceeding" shall not include any action instituted by ▇▇▇▇▇▇▇▇ other
than an action to establish or enforce indemnification rights under this
Agreement unless such action is authorized by the Company.
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(f) "Subsidiary" shall mean any Entity of which the Company owns
(either directly or through or together with another Subsidiary of the Company)
either (i) a general partner, managing member or other similar interest or (ii)
(A) ten percent (10%) or more of the voting power of the voting capital equity
interests of such Entity, or (B) ten percent (10%) or more of the outstanding
voting capital stock or other voting equity interests of such Entity.
(g) "Unindemnifiable Conduct" shall mean a final determination by a
court of competent jurisdiction or other judicial or administrative body before
which a Proceeding was brought that, with respect to such Proceeding, ▇▇▇▇▇▇▇▇:
(i) engaged in intentional misconduct, knowing violations of
applicable law, or gross negligence;
(ii) personally received a benefit in money, property, or
services to which he was not legally entitled, or improperly took advantage of a
corporate opportunity;
(iii) failed to act in good faith and in a manner ▇▇▇▇▇▇▇▇
reasonably believed to be in or not opposed to the best interests of the
Company;
(iv) with respect to any criminal action or proceeding,
▇▇▇▇▇▇▇▇ had reasonable cause to believe that ▇▇▇▇▇▇▇▇'▇ conduct was unlawful;
or
(v) is liable to the Company for an accounting of profits made
from the purchase or sale by ▇▇▇▇▇▇▇▇ of securities of the Company pursuant to
the provisions of Section 16(b) of the Securities Exchange Act of 1934, as
amended, the rules and regulations promulgated thereunder and amendments thereto
or similar provisions of any federal, state or local statutory law.
Notwithstanding the foregoing, the termination of any Proceeding by judgment,
order of court, settlement, conviction, or upon plea of nolo contendere, or its
equivalent, shall not, of itself, create a presumption that ▇▇▇▇▇▇▇▇ was engaged
in Unindemnifiable Conduct.
2. Services of ▇▇▇▇▇▇▇▇. In consideration of the Company's covenants and
commitments hereunder, and for other good and valuable consideration, ▇▇▇▇▇▇▇▇
agrees to serve as President, Chief Executive officer and Chairman of the Board
of the Company pursuant to the Employment Agreement; provided, that this
Agreement shall not impose any obligation on ▇▇▇▇▇▇▇▇ or the Company to continue
▇▇▇▇▇▇▇▇'▇ service to the Company at any particular rate or for any particular
period of time, unless otherwise required by law or by other agreements or
commitments of the parties, if any, including but not limited to the Employment
Agreement.
3. Indemnification. The Company agrees to hold harmless and indemnify
▇▇▇▇▇▇▇▇ as follows:
(a) Indemnity in Third Party Proceedings. Subject to the limitations
set forth in this Agreement, unless ▇▇▇▇▇▇▇▇ engaged in Unindemnifiable Conduct
or indemnification is not permitted under applicable law, the Company shall
indemnify and hold harmless ▇▇▇▇▇▇▇▇ if he is or was a party to or threatened to
be made a party to or otherwise involved in any Proceeding (other than a
Proceeding by or in the name of the Company to procure a judgment in its favor)
from against all Expenses actually and reasonably incurred by ▇▇▇▇▇▇▇▇ in
connection with the defense or settlement of such Proceeding.
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(b) ▇▇▇▇▇▇▇▇ in Proceedings By or In the Name of The Company.
Subject to the limitations set forth in this Agreement, unless ▇▇▇▇▇▇▇▇ engaged
in Unindemnifiable Conduct or indemnification is not permitted under applicable
law, the Company shall indemnify and hold harmless ▇▇▇▇▇▇▇▇ if he is or was a
party to or threatened to be made a party to or otherwise involved in any
Proceeding by or in the name or right of the Company to procure a judgment in
its favor against all Expenses actually and reasonably incurred by ▇▇▇▇▇▇▇▇ in
connection with the defense or settlement of such Proceeding.
4. Contribution.
(a) If the indemnification provided for in Section 3 hereof for any
reason is held by a court of competent jurisdiction to be unavailable to
▇▇▇▇▇▇▇▇ in respect of any Proceeding then the Company, in lieu of indemnifying
▇▇▇▇▇▇▇▇, shall contribute to the amount paid or payable by ▇▇▇▇▇▇▇▇ as a result
of such Proceeding (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company (including its Subsidiaries) and
▇▇▇▇▇▇▇▇ from the transaction or occurrence that the action or inaction leading
to the Proceeding related to, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, then in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company (including its Subsidiaries)
and ▇▇▇▇▇▇▇▇ in connection with such Proceeding, as well as any other relevant
equitable considerations.
(b) In connection with the registration of securities of the Company
or any of its Subsidiaries, the relative benefits received by the Company
(including its Subsidiaries) and ▇▇▇▇▇▇▇▇ shall be deemed to be in the same
respective proportions that the net proceeds from the offering (before deducting
expenses) received by the Company (including its Subsidiaries) and ▇▇▇▇▇▇▇▇, in
each case as set forth in the table contained in the applicable prospectus, bear
to the aggregate public offering price of the securities so offered.
(c) In connection with the registration of securities of the Company
or any of its Subsidiaries, the relative fault of the Company (including its
Subsidiaries) and ▇▇▇▇▇▇▇▇ shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company (including its Subsidiaries) or ▇▇▇▇▇▇▇▇ and the
parties' relative intent, knowledge, access to information, and opportunity to
correct or prevent such statement or omission.
(d) The Company and ▇▇▇▇▇▇▇▇ agree that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata
or per capita allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in Section 4(c) hereof.
(e) No person found guilty of fraudulent misrepresentation within
the meaning of Section 11(f) of the Securities Act of 1933, as amended, shall be
entitled to contribution from any person who was not found guilty of such
fraudulent misrepresentation.
5. Notification and Defense of Claim. ▇▇▇▇▇▇▇▇ shall promptly notify the
Company in writing as soon as practicable of any Proceeding for which
indemnification will or could be sought by ▇▇▇▇▇▇▇▇ and provide the Company with
a copy of any summons, citation, subpoena, complaint, indictment, information or
other document relating to such Proceeding with which ▇▇▇▇▇▇▇▇ is served;
provided that the failure of ▇▇▇▇▇▇▇▇ to give notice as provided herein shall
not relieve the Company of its obligations under this Agreement, except to the
extent that the Company is materially and adversely affected by such failure.
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(a) With respect to any Proceeding of which the Company is so
notified, the Company will be entitled to participate therein at its own expense
and/or to assume the defense thereof at its own expense, with legal counsel
reasonably acceptable to ▇▇▇▇▇▇▇▇.
(b) After notice from the Company to ▇▇▇▇▇▇▇▇ of its election to so
assume such defense, the Company shall not be liable to ▇▇▇▇▇▇▇▇ for any legal
or other expenses subsequently incurred by ▇▇▇▇▇▇▇▇ in connection with such
claim, other than as provided below in this Section 5. ▇▇▇▇▇▇▇▇ shall have the
right to employ ▇▇▇▇▇▇▇▇'▇ own counsel in connection with such claim, 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 ▇▇▇▇▇▇▇▇ unless:
(i) the employment of counsel by ▇▇▇▇▇▇▇▇ has been authorized
by the Company,
(ii) counsel to ▇▇▇▇▇▇▇▇ shall have reasonably concluded that
there may be a conflict of interest or position on any significant issue between
the Company and ▇▇▇▇▇▇▇▇ in the conduct of the defense of such action,
(iii) counsel to ▇▇▇▇▇▇▇▇ shall have reasonably concluded that
▇▇▇▇▇▇▇▇ may have separate defenses or counterclaims to assert with respect to
any issue which may not be consistent with the position of other defendants in
such Proceeding, or
(iv) the Company shall not in fact have employed counsel
reasonably satisfactory to ▇▇▇▇▇▇▇▇ to assume the defense of such action, in
each of which cases the reasonable fees and expenses of counsel for ▇▇▇▇▇▇▇▇
shall be at the expense of the Company, except as otherwise expressly provided
by this Agreement.
(c) The Company shall not be entitled, without the consent of
▇▇▇▇▇▇▇▇, to assume the defense of any claim brought by or in the right of the
Company or as to which counsel for ▇▇▇▇▇▇▇▇ shall have reasonably made the
conclusion provided for in clauses (ii) or (iii) above.
(d) The Company shall not settle any Proceeding in any manner,
without ▇▇▇▇▇▇▇▇'▇ written consent, which would (i) impose any penalty or
limitation on ▇▇▇▇▇▇▇▇, (ii) includes an admission of fault of ▇▇▇▇▇▇▇▇, or
(iii) does not include, as an unconditional term thereof, the full release of
▇▇▇▇▇▇▇▇ from all liability in respect of such Proceeding, which release shall
be in form and substance reasonably satisfactory to ▇▇▇▇▇▇▇▇.
(e) ▇▇▇▇▇▇▇▇ will not unreasonably withhold his consent to any
proposed settlement.
6. Procedure for Payment of Expenses. ▇▇▇▇▇▇▇▇ shall submit to the Company
one or more written request(s), including such documentation and information as
are reasonably available to ▇▇▇▇▇▇▇▇ and necessary to establish that ▇▇▇▇▇▇▇▇ is
entitled to indemnification hereunder, specifying the Expenses for which
▇▇▇▇▇▇▇▇ seeks payment under Section 3 and the basis for the claim. The Company
shall pay such Expenses to ▇▇▇▇▇▇▇▇ within thirty (30) calendar days of receipt
of each such request.
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7. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful; Partial Indemnification. Notwithstanding any other provision of this
Agreement, and without limiting any such provision, to the extent that ▇▇▇▇▇▇▇▇
is, by reason of ▇▇▇▇▇▇▇▇'▇ Corporate Status, a party to and is successful, on
the merits or otherwise, in any Proceeding, ▇▇▇▇▇▇▇▇ shall be indemnified
against all Expenses incurred by ▇▇▇▇▇▇▇▇ or on ▇▇▇▇▇▇▇▇'▇ behalf in connection
therewith. If ▇▇▇▇▇▇▇▇ 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, the Company shall indemnify
▇▇▇▇▇▇▇▇ against all Expenses incurred by ▇▇▇▇▇▇▇▇ or on ▇▇▇▇▇▇▇▇'▇ behalf in
connection with each successfully resolved claim, issue or matter. For purposes
of this Agreement, the termination of 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 claim, issue or matter.
8. Effect of Certain Resolutions. Neither the settlement nor termination
of any Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create an adverse presumption
that ▇▇▇▇▇▇▇▇ is not entitled to indemnification hereunder. In addition, the
termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that ▇▇▇▇▇▇▇▇ engaged in any Unindemnifiable Conduct.
9. Agreement to Advance Interim Expenses. The Company shall pay to
▇▇▇▇▇▇▇▇ all Expenses incurred by ▇▇▇▇▇▇▇▇ in connection with any Proceeding,
including a Proceeding by or in the right of the Company, in advance of the
final disposition of such Proceeding, if ▇▇▇▇▇▇▇▇ furnishes the Company with a
written undertaking to repay the amount of such Expenses advanced to ▇▇▇▇▇▇▇▇ if
it is finally determined by a court of competent jurisdiction or other judicial
or administrative body before which a Proceeding was brought that ▇▇▇▇▇▇▇▇ is
not entitled under this Agreement to indemnification with respect to such
Expenses.
10. Procedure for Payment of Interim Expenses. ▇▇▇▇▇▇▇▇ shall submit to
the Company a written request specifying the Expenses for which ▇▇▇▇▇▇▇▇ seeks
an advancement under Section 9 hereof, together with documentation evidencing
that ▇▇▇▇▇▇▇▇ has incurred such Expenses, which documentation shall be
reasonably satisfactory to the Company. Payment of Expenses under Section 9
hereof shall be made no later than thirty (30) days after the Company's receipt
of such request and the undertaking required by Section 9.
11. Remedies of ▇▇▇▇▇▇▇▇.
(a) Right to Petition Court. In the event that ▇▇▇▇▇▇▇▇ makes a
request for payment of Expenses under Section 3 hereof, or a request for an
advancement of Expenses under Sections 9 hereof, and the Company fails to make
such payment or advancement in a timely manner pursuant to the terms of this
Agreement, ▇▇▇▇▇▇▇▇ may petition the appropriate judicial authority to enforce
the Company's obligations under this Agreement.
(b) Expenses. The Company agrees to hold harmless and indemnify
▇▇▇▇▇▇▇▇ in full for any Expenses incurred by ▇▇▇▇▇▇▇▇ in connection with
investigating, preparing for, litigating, defending or settling any action
brought by ▇▇▇▇▇▇▇▇ under Section 11(a) hereof unless, as part of such action,
it has been adjudicated finally by a court of competent jurisdiction that
▇▇▇▇▇▇▇▇ was not entitled to Indemnification hereunder.
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(c) Validity of Agreement. The Company and ▇▇▇▇▇▇▇▇ shall be
precluded from asserting in any Proceeding, including, without limitation, an
action under Section 11(a) hereof, that the provisions of this Agreement are not
valid, binding and enforceable or that there is insufficient consideration for
this Agreement and shall stipulate in court that the Company and ▇▇▇▇▇▇▇▇ are
bound by all the provisions of this Agreement.
(d) Failure to Act Not a Defense. The failure of the Company
(including its Board of Directors or any committee thereof, independent legal
counsel, or shareholders) to make a determination concerning the permissibility
of the payment of Expenses or the advancement of Expenses under this Agreement
shall not be a defense in any action brought under Section 11(a) hereof, and
shall not create a presumption that such payment or advancement is not
permissible.
12. Mutual Acknowledgement. Both the Company and ▇▇▇▇▇▇▇▇ acknowledge that
in certain instances, federal law, state law, and/or public policy
considerations may prohibit the Company from indemnifying its directors,
officers and fiduciaries under the Agreement or otherwise. ▇▇▇▇▇▇▇▇ understands
and acknowledges that the Company may be required in the future to undertake
with the United States Securities and Exchange Commission and/or other federal
and/or state regulatory authorities to submit the question of indemnification to
a court in certain circumstances for a determination of the Company's right
under the law and/or given public policy considerations to indemnify ▇▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇▇ acknowledges and agrees that a non-appealable determination in such
matter shall be final and binding on the parties hereto.
13. Representations and Warranties of the Company. The Company hereby
represents and warrants to ▇▇▇▇▇▇▇▇ that it has all necessary corporate power
and authority to enter into, and be bound by the terms of, this Agreement, and
the execution, delivery and performance of the undertakings contemplated by this
Agreement have been duly authorized by the Company. This Agreement, when
executed and delivered by the Company in accordance with the provisions hereof,
shall be a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, moratorium, reorganization
or similar laws affecting the enforcement of creditors' rights generally.
14. Insurance. The Company will use commercially reasonable efforts to
obtain and maintain a policy or policies of directors' and officers' liability
insurance customary for similarly situated companies in an amount not less than
that maintained by similarly situated companies, with reputable insurance
companies providing the members of the Company's Board of Directors, officers
and fiduciaries with coverage for losses from wrongful acts, and to ensure the
Company's performance of its indemnification obligations under this Agreement.
Notwithstanding the foregoing, if the Company, after employing commercially
reasonable efforts as provided in this Section 14, determines in good faith that
such insurance is not reasonably available, if the premium costs for such
insurance are disproportionate to the amount of coverage provided, or if the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, the Company shall use its commercially reasonable efforts
to obtain and maintain a policy or policies of insurance with coverage having
features as similar as practicable to those described above. Notwithstanding
anything to the contrary in this Agreement, the Company shall not indemnify
▇▇▇▇▇▇▇▇ to the extent ▇▇▇▇▇▇▇▇ is actually reimbursed from the proceeds of
insurance, and in the event the Company makes any indemnification payments to
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ is subsequently reimbursed from the proceeds of insurance,
▇▇▇▇▇▇▇▇ shall promptly refund such indemnification payments to the Company to
the extent of such insurance reimbursement.
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15. Contract Rights Not Exclusive. The rights to payment of Expenses and
advancement of Expenses provided by this Agreement shall be in addition to, but
not exclusive of, any other rights which ▇▇▇▇▇▇▇▇ may have at any time under
applicable law, the Company's Bylaws, the Company's Certificate of
Incorporation, or any other agreement, vote of shareholders or directors, or
otherwise, both as to action in ▇▇▇▇▇▇▇▇'▇ official capacity and as to action in
any other capacity as a result of ▇▇▇▇▇▇▇▇'▇ serving as the President, Chief
Executive Officer, and Chairman of the Board of the Company.
16. Successors. This Agreement shall be (a) binding upon all successors
and assigns of the Company (including any transferee of all or a substantial
portion of the business, stock and/or assets of the Company and any direct or
indirect successor by merger or consolidation or otherwise by operation of law),
and (b) binding on and shall inure to the benefit of the heirs, personal
representatives, executors and administrators of ▇▇▇▇▇▇▇▇. This Agreement shall
continue for the benefit of ▇▇▇▇▇▇▇▇ and such heirs, personal representatives,
executors and administrators after ▇▇▇▇▇▇▇▇ has ceased to have Corporate Status.
The Company shall require and cause any successor or assign, by written
agreement in form and substance satisfactory to ▇▇▇▇▇▇▇▇, expressly to assume
all of the Company's obligations under this Agreement
17. Subrogation. In the event of any payment of Expenses under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of contribution or recovery of ▇▇▇▇▇▇▇▇ against other persons, and
▇▇▇▇▇▇▇▇ shall take, at the request of the Company, all reasonable action
necessary to secure such rights, including the execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
18. Scope; Changes in the Law. The Company hereby agrees to indemnify
▇▇▇▇▇▇▇▇ to the fullest extent permitted by law, notwithstanding that such
indemnification may not be specifically authorized by other provisions of this
Agreement, the Company's Bylaws or Certificate of Incorporation 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 the Company to indemnify a
member of its Board of Directors, an officer or fiduciary, it is the intent of
the parties hereto that ▇▇▇▇▇▇▇▇ 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 the Company to indemnify a
member of its Board of Directors, an officer 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.
19. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause thereof,
shall be determined by a court of competent jurisdiction to be illegal, invalid
or unenforceable, in whole or in part, such provision or clause shall be limited
or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions
and clauses of this Agreement shall remain fully enforceable and binding on the
parties.
20. ▇▇▇▇▇▇▇▇ as Plaintiff. Except as provided in Section 11 hereof and in
the next sentence, ▇▇▇▇▇▇▇▇ shall not be entitled to payment of Expenses or
advancement of Expenses with respect to any Proceeding brought by ▇▇▇▇▇▇▇▇
against the Company, any Entity which it controls, any director or officer
thereof, or any third party, unless the Company has consented to the initiation
of such Proceeding. This Section 20 shall not apply to affirmative defenses
asserted by ▇▇▇▇▇▇▇▇ in an action brought against ▇▇▇▇▇▇▇▇.
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21. Modifications and Waiver. Except as provided in Section 18 hereof with
respect to changes in applicable law which broaden the right of ▇▇▇▇▇▇▇▇ to be
indemnified by the Company, no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by each 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 of this Agreement (whether or
not similar), nor shall such waiver constitute a continuing waiver.
22. Term of Agreement. This Agreement shall commence on the date first
above written and shall continue until and terminate upon the later of (a) ten
(10) years after the date that ▇▇▇▇▇▇▇▇ shall have ceased to serve as a director
and/or officer and/or fiduciary of the Company, or (b) the final termination of
all Proceedings pending on the date set forth in clause (a) in respect of which
▇▇▇▇▇▇▇▇ is granted rights of indemnification or advancement of Expenses
hereunder.
23. General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand or a reputable, national courier services,
or (b) if mailed by certified or registered mail with postage prepaid, on the
third business day after the date on which it is so mailed. Notice given to the
Company or ▇▇▇▇▇▇▇▇ hereunder shall be sent to the address provided in the
opening paragraph to this Agreement or to such other address as may be furnished
in the same manner by the Company to ▇▇▇▇▇▇▇▇, or by ▇▇▇▇▇▇▇▇ to the Company.
24. Governing Law. This Agreement shall be governed by and construed and
enforced under the laws of the State of Delaware without giving effect to the
provisions thereof relating to conflicts of law.
25. Counterparts; Facsimile Signatures. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Facsimile
transmission of any signed original document or retransmission of any signed
facsimile transmission will be deemed the same as delivery of an original. At
the request of any party, the parties will confirm facsimile transmission by
signing a duplicate original document.
26. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, whether oral or written, by any officer,
employee or representative of any party hereto in respect of the subject matter
contained herein; and any prior agreement of the parties hereto in respect of
the subject matter contained herein is hereby terminated and cancelled. For
avoidance of doubt, the parties confirm that the foregoing does not apply to or
limit ▇▇▇▇▇▇▇▇'▇ rights under Delaware law or the Company's Certificate of
Incorporation or Bylaws. This Agreement is to be deemed consistent wherever
possible with relevant provisions of the Company's Bylaws and Certificate of
Incorporation, as well as the Employment Agreement; however, in the event of a
conflict or inconsistency between this Agreement and such provisions or
agreement, the provisions of this Agreement shall control to the extent
permitted by applicable law.
27. Incorporation of Recitals. The recitals set forth at the beginning of
this Agreement are true and correct and are hereby incorporated by reference.
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28. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment to ▇▇▇▇▇▇▇▇ to the extent ▇▇▇▇▇▇▇▇ has otherwise
actually received payment under any insurance policy or otherwise.
29. Survival Regardless of Investigation. The indemnification and
contribution provided for in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of ▇▇▇▇▇▇▇▇.
30. No Construction as Employment Agreement or Agreement to Serve as a
Director. Nothing contained in this Agreement shall be construed as giving
▇▇▇▇▇▇▇▇ any right to be retained in the employ of the Company or to serve as a
director of the Company.
31. Fees and Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby, including attorneys'
fees and costs, shall be paid by the Company. In the event of any dispute
between the parties hereto arising out of or relating to this Agreement or the
interpretation, performance, or breach thereof, the prevailing party shall be
entitled to recover from the other party its reasonable expenses, including
reasonable attorneys' fees and costs, incurred therein or in the enforcement or
collection of any judgment or award rendered therein.
[SIGNATURE PAGE FOLLOWS; REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the day and year first above written.
COMPANY:
CELERITY SYSTEMS, INC.
By:
----------------------------------
Print Name: __________________________
Title: _______________________________
▇▇▇▇▇▇▇▇:
---------------------------------------
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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