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EXHIBIT 10.33
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered
into EFFECTIVE as of the day of ___________, 1997, by and between
________________________ (the "Indemnitee"), and JLM INDUSTRIES, INC., a
Delaware corporation (the "Corporation").
WITNESSETH:
WHEREAS, it is essential to the Corporation to retain and attract as
Directors, officers and key employees the most capable persons available; and
WHEREAS, the substantial increase in corporate litigation subjects
directors and officers to expensive litigation risks at the same time that the
availability of directors' and officers' liability insurance is severely
limited; and
WHEREAS, in addition, the indemnification provisions of the Delaware
General Corporation Law (the "DGCL," as further defined below) expressly provide
that such provisions are non-exclusive; and
WHEREAS, the Indemnitee does not regard the protection available under
the Certificate of Incorporation and Bylaws of the Corporation and insurance, if
any, as adequate in the present circumstances, and considers it necessary to
condition the Indemnitee's agreement to serve as a Director and/or officer of
the Corporation to have appropriate contractual rights to indemnification from
the Corporation, and the Corporation desires the Indemnitee to serve in such
capacity or capacities and to have such rights as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained in this Agreement, it is hereby agreed as
follows:
1. DEFINITIONS.
For the purposes of this Agreement, the terms below shall have the
indicated meanings except where the context in which such a term is used in this
Agreement clearly indicates otherwise:
a. Affiliate means, as to any Person (the "first Person"), any
other Person that, either directly or indirectly, controls, is
controlled by or is under common control with the first Person.
b. Agreement of Indemnity means the agreement provided for by
Section 3(e)(i) of this Agreement.
c. Associate of a Person means a director, officer, employee,
agent, consultant, independent contractor, stockholder or partner of
such Person.
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d. Board means the Board of Directors of the Corporation.
e. Evaluation Date means, as to any Indemnification Notice, the date
thirty (30) calendar days after the date of receipt by the Board of
such Indemnification Notice.
f. Expense means any cost or expense (other than a Liability),
including but not limited to Legal Fees, and including interest on any
of the foregoing, reasonably paid or required to be paid by the
Indemnitee on account of or in connection with any Proceeding.
g. Expense Advance Request means the request provided for by Section
3(d)(ii) of this Agreement.
h. DGCL means the Delaware General Corporation Law, and any successor
statute.
i. Indemnification Notice means the notice provided for by Section 3(a)
of this Agreement.
j. Legal Fees means the fees and disbursements of legal counsel, legal
assistants, experts, accountants, consultants and investigators, before
and at trial, in appellate or bankruptcy proceedings and otherwise.
k. Liability means any amount (other than an Expense), including any
assessment, fine, penalty, excise or other tax, and including interest
on any of the foregoing, paid or required to be paid by the Indemnitee
on account of or in connection with any Proceeding.
l. Nonindemnifiable Conduct means any act or omission to act of the
Indemnitee material to a Proceeding as to which indemnification under
this Agreement is sought, which act or omission is determined to
involve:
i. a violation of criminal law, unless the Indemnitee had
reasonable cause to believe such conduct was lawful or had no
reasonable cause to believe such conduct was unlawful;
ii. a transaction from which the Indemnitee derived an improper
personal benefit;
iii. willful misconduct or a conscious disregard for the best
interests of the Corporation (when indemnification is sought in a
Proceeding by or in the right of the Corporation to procure a
judgment in favor of the Corporation or when indemnification is
sought in a Proceeding by or in the right of a stockholder); or
iv. conduct as to which then applicable law prohibits
indemnification.
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m. Person means any natural person or individual, or any artificial
person, including any corporation, association, unincorporated
organization, partnership, joint venture, firm, company, business,
trust, business trust, limited liability company, government, public
body or authority, governmental agency or department, and any other
entity.
n. Proceeding means any threatened, pending or completed claim, demand,
inquiry, investigation, action, suit or proceeding, whether formal or
informal, or whether brought by or in the right of the Corporation,
whether brought by a governmental body, agency or representative or by
any other Person, and whether of a civil, criminal, administrative or
investigative nature, and includes any Third Party Proceeding.
o. Third Party Proceeding means any Proceeding against the Indemnitee
by, or any Proceeding by the Indemnitee against, any third party.
2. GRANT OF INDEMNITY.
The Corporation shall indemnify and hold harmless the Indemnitee in respect of:
a. any and all Liabilities that may be incurred or suffered by the
Indemnitee as a result of or arising out of or in connection with
prosecuting, defending, settling or investigating any Proceeding in
which the Indemnitee may be or may have been involved as a party or
otherwise, arising out of the fact that the Indemnitee is or was an
Associate of the Corporation or any of its Affiliates, or served as an
Associate in or for any Person at the request of the Corporation
(including without limitation service as a trustee or in any fiduciary
or similar capacity for or in connection with any employee benefit plan
maintained by the Corporation or for the benefit of any of the
employees of the Corporation or any of its Affiliates, or service on
any trade association, civic, religious, educational or charitable
boards or committees);
b. any and all Liabilities that may be incurred or suffered by the
Indemnitee as a result of or arising out of or in connection with any
attempt (regardless of its success) by any Person to charge or cause
the Indemnitee to be charged with wrongdoing or with financial
responsibility for damages arising out of or incurred in connection
with the matters indemnified against in this Agreement; and
c. any and all Expenses that may be incurred or suffered by the
Indemnitee as a result of or arising out of or in connection with any
matter referred to in the preceding two paragraphs.
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3. CLAIMS FOR INDEMNIFICATION; PROCEDURES
a. Submission of Claims. Whenever any Proceeding shall occur as to
which indemnification under this Agreement may be sought by the
Indemnitee, the Indemnitee shall give the Corporation written notice
thereof as promptly as reasonably practicable after the Indemnitee has
actual knowledge of such Proceeding (an "Indemnification Notice"). The
Indemnification Notice shall specify in reasonable detail the facts
known to the Indemnitee giving rise to such Proceeding, the positions
and allegations of the parties to such Proceeding and the factual bases
therefor, and the amount or an estimate of the amount of Liabilities
and Expenses reasonably expected to arise therefrom. A delay by the
Indemnitee in providing such notice shall not relieve the Corporation
from its obligations under this Agreement unless and only to the extent
that the Corporation is materially and adversely affected by the delay.
If the Indemnitee desires to personally retain the services of an
attorney in connection with any Proceeding, the Indemnitee shall notify
the Corporation of such desire in Indemnification Notice relating
thereto, and such notice shall identify the counsel to be retained.
b. Presumption of Right to Indemnification. Upon submission of an
Indemnification Notice to the Corporation, the Board shall review such
Notice and endeavor to determine whether the Indemnitee is entitled to
indemnification under this Agreement with respect to the matters
described therein. As of the Evaluation Date, unless the Board has
reasonably determined that the Indemnitee is not entitled to
indemnification under this Agreement with respect to the matters
described in such Indemnification Notice, there shall be created a
presumption that the Indemnitee is entitled to such indemnification.
Such presumption shall continue, and indemnification and payment shall
be provided under this Agreement, unless and such time as the Board
shall reasonably determine that the Indemnitee is not entitled to
indemnification under this Agreement. This paragraph is procedural only
and shall not affect the right of the Indemnitee to indemnification
under this Agreement. Any determination by the Board that the
Indemnitee is not entitled to indemnification under this Agreement and
any failure to make any payments requested in an Indemnification Notice
or otherwise shall be subject to judicial review.
c. Limitation on Adverse Determinations by the Board. Subject to
applicable law, no determination by the Board that the Indemnitee is
not entitled to indemnification or payment under this Agreement shall
be given effect under this Agreement unless (i) such determination is
based upon clear and convincing evidence, (ii) such determination is
made by a vote of a majority of the Corporation's Directors at a
meeting at which a quorum is present, and (iii) the Indemnitee is given
written notice of such meeting at least ten days in advance of such
meeting and given a meaningful opportunity to present at such meeting
information in support of the claim for indemnification or payment.
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d. Expenses.
i. With respect to any Proceeding as to which the Indemnitee
is entitled (or presumed entitled) to indemnification under
this Agreement, Expenses incurred or required to be incurred
by the Indemnitee in connection with such Proceeding, but
prior to the final disposition of such Proceeding, shall be
paid or caused to be paid by the Corporation to or on behalf
of the Indemnitee notwithstanding that there has been no final
disposition of such Proceeding, to the extent provided in the
following paragraph.
ii. For purposes of determining whether to authorize
advancement of Expenses pursuant to the preceding paragraph,
the Indemnitee shall from time to time submit to the Board a
statement requesting advancement of Expenses (an "Expense
Advance Request." Each Expense Advance Request shall set forth
(i) in reasonable detail, all Expenses already incurred or
required to be incurred by the Indemnitee and the reason
therefor, and (ii) an undertaking by the Indemnitee, in form
and substance reasonably satisfactory to the Corporation, to
repay all the Expenses set forth therein if it shall
ultimately be determined that the Indemnitee is not entitled
to be indemnified with respect to such Proceeding by the
Corporation under this Agreement or otherwise. Upon receipt of
an Expense Advance Request satisfying the foregoing
requirements, as to each Expense set forth therein, unless the
Board reasonably determines that the Indemnitee is not
entitled to payment of such Expense, the Corporation shall,
within 10 business days thereafter (or, if later as to any
Expense yet to be incurred by the Indemnitee, on or before the
date three business days prior to the date such Expense is
required to be paid by the Indemnitee), pay or cause to be
paid by the Corporation the amount of such Expense to or on
behalf of the Indemnitee. No security shall be required in
connection with any Expense Advance Request, and the ability
or inability of the Indemnitee to make repayment shall not be
considered in any evaluation of an Expense Advance Request.
e. Rights to Defend or Settle; Third Party Proceedings, etc.
i. If the Corporation at any time provides the Indemnitee
with an agreement in writing, in form and substance reasonably
satisfactory to the Indemnitee and the Indemnitee's counsel,
agreeing to indemnify, defend or prosecute and hold the
Indemnitee harmless from all Liabilities and Expenses arising
from any Third Party Proceeding (an "Agreement of Indemnity"),
and demonstrating to the reasonable satisfaction of the
Indemnitee the Corporation's financial wherewithal to
accomplish such indemnification, the Corporation may
thereafter at its own expense undertake full responsibility
for and control of the defense or prosecution of such Third
Party Proceeding. The Corporation may contest or settle any
such Third Party Proceeding for money damages on such terms
and conditions as it deems appropriate but shall be
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obligated to consult in good faith with the Indemnitee and not
to contest or settle any Third Party Proceeding involving
injunctive or equitable relief against or affecting the
Indemnitee or the Indemnitee's properties or assets without
the prior written consent of the Indemnitee, such consent not
to be unreasonably withheld. The Indemnitee may participate at
the Indemnitee's own expense and with the Indemnitee's own
counsel in defense or prosecution of a Third Party Proceeding
controlled by the Corporation. Such participation shall not
relieve the Corporation of its obligation to indemnify the
Indemnitee with respect to such Third Party Proceeding under
this Agreement.
ii. If, as of ten (10) business days after the receipt by the
Board of an Indemnification Notice, the Corporation has not
delivered to the Indemnitee a reasonably satisfactory
Agreement of Indemnity and evidence of financial wherewithal
as contemplated by the preceding paragraph, the Indemnitee may
contest or settle the Third Party Proceeding on such terms as
it sees fit but shall not reach a settlement with respect to
the payment of money damages without consulting in good faith
with the Corporation. As to any Third Party Proceeding as to
which the Indemnitee is entitled (or presumed entitled) to
indemnification under this Agreement, unless and until such
time as the Corporation at its own expense undertakes full
responsibility for and control of the defense or prosecution
of such Third Party Proceeding, the Indemnitee shall be
entitled to indemnification under this Agreement with respect
any Expenses of the Indemnitee, including Legal Fees, relating
to such Third Party Proceeding. Notwithstanding the foregoing,
the Corporation may at any time deliver to the Indemnitee a
reasonably satisfactory Agreement of Indemnity and evidence of
financial wherewithal as contemplated by the preceding
paragraph, and thereafter at its own expense undertake full
responsibility for and control of the defense or prosecution
of such Third Party Proceeding.
iii. All Expenses incurred in defending or prosecuting any
Third Party Proceeding shall be paid in accordance with the
procedure set forth in Section 3(d) of this Agreement.
iv. If, by reason of any Third Party Proceeding as to which
the Indemnitee is entitled (or presumed entitled) to
indemnification under this Agreement, a lien, attachment,
garnishment or execution is placed upon any of the property or
assets of the Indemnitee, the Corporation shall promptly
furnish a reasonably satisfactory indemnity bond to obtain the
prompt release of such lien, attachment, garnishment or
execution.
v. The Corporation may participate at its own expense and
with its own counsel in defense or prosecution of any Third
Party Proceeding, but any such participation shall not relieve
the Corporation of its obligations to indemnify the Indemnitee
under
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this Agreement. Any election by the Corporation to at its own
expense undertake full responsibility for and control of the
defense or prosecution of a Third Party Proceeding shall not
affect the entitlement of the Indemnitee to indemnification
under this Agreement.
vi. The Indemnitee shall cooperate in the defense or
prosecution of any Third Party Proceeding controlled by the
Corporation.
vii. The parties shall cooperate in good faith and use
reasonable efforts to mitigate and minimize any Expense or
Liability.
f. Choice of Counsel. In all matters as to which indemnification
is or may be available to the Indemnitee under this Agreement, the
Indemnitee shall be free to choose and retain counsel of the
Indemnitee's choice, provided that the Indemnitee shall secure the
prior written consent of the Corporation as to such selection, which
consent shall not be unreasonably withheld.
g. Repayment. Notwithstanding anything to the contrary, if the
Corporation has paid or advanced any Liability or Expense under this
Agreement (including pursuant to an Expense Advance Request) to, on
behalf of or for the benefit of the Indemnitee and it is determined by
a court of competent jurisdiction, in a decision which the Indemnitee
does not properly appeal or which decision is affirmed on appeal, that
the Indemnitee's actions or omissions constitute Nonindemnifiable
Conduct or that the Indemnitee otherwise is not or was not entitled to
such payment or advance or that the Indemnitee is required to reimburse
or repay the Corporation for the amount thereof, the Indemnitee shall
and does hereby undertake in such circumstances to reimburse and repay
the Corporation for any and all such amounts paid, which thereupon
shall be deemed and shall be and become the legal, valid and
enforceable debt and obligation of the Indemnitee to the Corporation.
h. Representations and Agreements of the Corporation.
i. Authority. The Corporation represents, covenants and
agrees that it has the corporate power and authority to enter
into this Agreement and to carry out its obligations under
this Agreement. The execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement have been duly authorized by
the Board. This Agreement is a valid and binding obligation of
the Corporation and is enforceable against the Corporation in
accordance with its terms.
ii. Noncontestability. The Corporation represents, covenants
and agrees that it will not initiate, and will use its best
efforts to cause each of its Affiliates not to
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initiate, any action, suit or proceeding challenging the
validity or enforceability of this Agreement.
iii. Good Faith Judgment. The Corporation represents,
covenants and agrees that it will exercise good faith and its
best reasonable judgment in determining the entitlement of the
Indemnitee to indemnification under this Agreement.
4. RELATIONSHIP OF THIS AGREEMENT TO OTHER INDEMNITIES.
a. Nonexclusivity.
i. This Agreement and all rights granted to the Indemnitee
under this Agreement are in addition to and are not deemed to
be exclusive with or of any other rights that may be available
to the Indemnitee under any Certificate of Incorporation,
bylaw, statute, agreement, or otherwise.
ii. The rights, duties and obligations of the Corporation and
the Indemnitee under this Agreement do not limit, diminish or
supersede the rights, duties and obligations of the
Corporation and the Indemnitee with respect to the
indemnification afforded to the Indemnitee under any liability
insurance, the DGCL, or under the Bylaws or the Certificate of
Incorporation of the Corporation. In addition, the
Indemnitee's rights under this Agreement will not be limited
or diminished in any respect by any amendment to the Bylaws or
the Certificate of Incorporation of the Corporation.
b. Availability, Contribution, Etc.
i. The availability or nonavailability of indemnification by
way of insurance policy, Certificate of Incorporation, bylaw,
vote of stockholders, or otherwise from the Corporation to the
Indemnitee shall not affect the right of the Indemnitee to
indemnification under this Agreement, provided that all rights
under this Agreement shall be subject to applicable statutory
provisions in effect from time to time.
ii. Any funds actually received by the Indemnitee by way of
indemnification or payment from any source other than from the
Corporation under this Agreement shall reduce any amount
otherwise payable to the Indemnitee under this Agreement.
iii. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Corporation for some
Liabilities or Expenses but not as to others, or for some or a
portion thereof actually incurred by the Indemnitee or amounts
actually paid in settlement by the Indemnitee in the
investigation, defense, appeal or settlement of any Proceeding
for which indemnification is sought under this
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Agreement but not for the total amount thereof, the
Corporation shall indemnify the Indemnitee for the portion
thereof to which the Indemnitee is entitled.
iv. If for any it is determined by a court of competent
jurisdiction, in a decision which neither party to this
Agreement properly appeals or which decision is affirmed on
appeal, that the indemnity provided under this Agreement is
unavailable, or if for any reason the indemnity under this
Agreement is insufficient to hold the Indemnitee harmless as
provided in this Agreement, then, in any such event, the
Corporation shall contribute to the amounts paid or payable by
the Indemnitee in such proportion as equitably reflects the
relative benefits received by, and fault of, the Indemnitee
and the Corporation and its Affiliates and its and their
respective Associates.
c. Coordination With Insurance. The obligation of the
Corporation under this Agreement is not conditioned in any way on any
attempt, whether or not successful, by the Indemnitee or the
Corporation to collect from an insurer any amount under any insurance
policy.
5. LIMITATIONS.
In no case shall any indemnification or payment be provided or made under this
Agreement to or on behalf of or for the direct or indirect benefit of the
Indemnitee by the Corporation:
a. except as set forth in Section 6(g) of this Agreement, in any
Proceeding brought by or in the name or interest of the Indemnitee
against the Corporation;
b. except as set forth in Section 6(g) of this Agreement, in any
Proceeding brought by the Corporation against the Indemnitee, which
action is initiated at the direction of the Board; or
c. for any Nonindemnifiable Conduct.
6. MISCELLANEOUS.
a. Cooperation. The parties to this Agreement shall execute such
powers of attorney as may be necessary or appropriate to permit
participation of counsel selected by any party hereto and, as may be
reasonably related to any such claim or action, shall provide to the
counsel, accountants and other representatives of each party access
during normal business hours to all properties, personnel, books,
records, contracts, commitments and all other business records of such
other party and will furnish to such other party copies of all such
documents as may be reasonably requested (certified, if requested).
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b. Further Assurances. The parties to this Agreement will
execute and deliver, or cause to be executed and delivered, such
additional or further documents, agreements or instruments and shall
cooperate with one another in all respects for the purpose of carrying
out the transactions contemplated by this Agreement.
c. Notices. Any notice, request, demand or other communication
required or permitted to be given or made under this Agreement shall be
in writing and shall be deemed to have been duly given: upon receipt if
personally delivered; upon successful completion of transmission if
transmitted by telecopy, electronic telephone line facsimile
transmission or other similar electronic or digital transmission
method; at the close of business on the next business day after it is
sent, if sent by recognized overnight delivery service with all fees
payable by the sender; or at the close of business on the fifth
business day after it is sent, if mailed, first class mail, postage
prepaid. In each case such notice, request, demand or other
communication shall be sent to:
if to the Indemnitee:
if to the Corporation:
With a copy to:
or to such other address as either party may have specified in writing
to the other using the procedures specified above in this Section 6(c).
d. Governing Law. This Agreement shall be construed pursuant to
and governed by the substantive laws of the State of Delaware (but any
provision of Delaware law shall not apply if the application of such
provision would result in the application of the law of a state or
jurisdiction other than Delaware).
e. Severability. Any provision of this Agreement that is
determined by a court of competent jurisdiction to be prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition,
unenforceability
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or non-authorization without invalidating the remaining provisions
hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction. In any such case, such
determination shall not affect any other provision of this Agreement,
and the remaining provisions of this Agreement shall remain in full
force and effect. If any provision or term of this Agreement is
susceptible to two or more constructions or interpretations, one or
more of which would render the provision or term void or unenforceable,
the parties agree that a construction or interpretation which renders
the term or provision valid shall be favored.
f. Specific Enforcement; Presumption.
i. The parties agree and acknowledge that, in the event of a
breach by the Corporation of its obligation promptly to
indemnify the Indemnitee as provided in this Agreement, or
breach of any other material provision of this Agreement,
damages at law will be an insufficient remedy to the
Indemnitee. Accordingly, the parties agree that, in addition
to any other remedies or rights that may be available to the
Indemnitee, the Indemnitee shall also be entitled, upon
application to a court of competent jurisdiction, to obtain
temporary or permanent injunctions to compel specific
performance of the obligations of the Corporation under this
Agreement.
ii. There shall exist in any action to enforce the rights of
the Indemnitee under this Agreement a rebuttable presumption
that the Indemnitee has met the applicable standard(s) of
conduct and is therefore entitled to indemnification pursuant
to this Agreement, and the burden of proving that the relevant
standards have not been met by the Indemnitee shall be on the
Corporation. Neither the failure of the Corporation (including
the Board or independent legal counsel) prior to the
commencement of such action to have made a determination that
indemnification is proper in the circumstances because the
Indemnitee has met the applicable standard of conduct, nor an
actual determination by the Corporation (including the Board
or independent legal counsel) that the Indemnitee has not met
such applicable standard of conduct, shall (X) constitute a
defense to the action, (Y) create a presumption that the
Indemnitee has not met the applicable standard of conduct, or
(Z) otherwise alter the presumption in favor of the Indemnitee
referred to in the preceding sentence.
g. Cost of Enforcement; Interest.
i. If either party to this Agreement engages the services of
an attorney or any other third party or in any way initiates
legal action to enforce the party's rights under this
Agreement, including but not limited to the collection of
monies due, the prevailing party in such action shall be
entitled to recover all Expenses incurred in connection
therewith. Should the Indemnitee prevail, such Expenses shall
be in addition to monies otherwise due the Indemnitee under
this Agreement.
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ii. If any amount shall be due or payable under this Agreement
(including under an Expense Advance Request) and shall not be
paid within 30 days from the date as of which the obligation
to make such payment arises, interest shall accrue on such
unpaid amount from the date when due until it is paid in full
at the rate of 2% per annum in excess of the prime rate
published from time to time in The Wall Street Journal in its
"Money Rates" column or any similar or successor column or
feature, or such lower rate as may be required to comply with
applicable law.
h. No Assignment. Any claim, right, title, benefit, remedy or
interest of the Indemnitee in, to or under or arising out of or in
connection with this Agreement is personal and may not be sold,
assigned, transferred, pledged or hypothecated, but the provisions of
this Agreement shall survive the death, disability or incapacity of the
Indemnitee or the termination of the Indemnitee's service as a Director
or officer of the Corporation and shall inure to the benefit of the
Indemnitee's heirs, executors and administrators. This Agreement shall
inure to the benefit of and shall be binding upon the successors in
interest and assigns of the Corporation, including any successor
corporation resulting from a merger, consolidation, recapitalization,
reorganization, sale of all or substantially all of the assets of the
Corporation, or any other transaction resulting in the successor
corporation assuming the liabilities of the Corporation under this
Agreement (by operation of law or otherwise).
i. No Third Party Beneficiaries. This Agreement is not intended
to benefit or entered into for the benefit of any third parties and,
other than as set forth in the preceding paragraph as to heirs,
assignees and successors, nothing in this Agreement, whether express or
implied, is intended or should be construed to confer upon, or to grant
to, any person, except the Corporation and the Indemnitee, any claim,
right, benefit or remedy under or because of this Agreement or any
provision set forth in this Agreement.
j. Construction. As used in this Agreement, (1) the word
"including" is always without limitation, and (2) words in the singular
number include words of the plural number and vice versa.
k. Venue; Process. The parties to this Agreement agree that
jurisdiction and venue in any action brought pursuant to this Agreement
to enforce its terms or otherwise with respect to the relationships
between the parties shall properly lie in and only in the
____________________ of the State of __________ in and for ______
County (the "Selected Court") and the parties agree that jurisdiction
shall not properly lie in any other jurisdiction provided, however, if
jurisdiction does not properly lie with the Selected Court, the parties
agree that jurisdiction and venue shall properly lie in and only in the
United States District Court for the _________ District of _________.
The parties hereby waive any objections which they may now or hereafter
have based on venue and/or forum non conveniens and irrevocably submit
to the jurisdiction of any such court in any legal suit, action or
proceeding arising out of or relating to this Agreement. The parties
further agree that the
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mailing by certified or registered mail, return receipt requested, of
any process required by any such court shall constitute valid and
lawful service of process against them, without the necessity for
service by any other means provided by statute or rule of court.
l. Waiver and Delay. No waiver or delay in enforcing the terms
of this Agreement or in taking any action with respect to any
breach of this Agreement shall be construed as a waiver of any
subsequent breach. No action taken by the Indemnitee shall constitute
a waiver of the Indemnitee's rights under this Agreement.
m. Modification. This Agreement contains the entire agreement of
the parties, and supersedes any prior written or oral agreement of the
parties, with respect to the subject matter hereof. This Agreement may
be modified only by an instrument in writing signed by both parties
hereto.
n. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original, but all of
which together shall constitute one and the same instrument.
o. Headings. The headings of the various sections in this
Agreement are inserted for the convenience of the parties and shall not
affect the meaning, construction or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement EFFECTIVE
as of the date first above written.
INDEMNITEE
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Signature Date
JLM INDUSTRIES, INC.
By:
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Date
