EX 10.22
INDEMNIFICATION AGREEMENT
AGREEMENT made as of this _____ day of ____________, 1998, between
_________, a Delaware Corporation (the "Company"), and _______________
("Indemnitee").
WHEREAS, it is essential to the Company and its stockholders to
attract and retain qualified and capable non-employee directors;
WHEREAS, the Certificate of Incorporation of the Company (the
"Certificate of Incorporation") and the By-laws of the Company (the "By-laws")
allow the Company to indemnify and advance expenses to its directors;
WHEREAS, historically, basic protection against undue risk of personal
liability of directors has been provided through insurance coverage affording
reasonable protection at reasonable cost;
WHEREAS, it is presently uncertain whether, and to what extent, such
insurance is or will continue to be available to the Company at a reasonable
cost for the protection of Indemnitee;
WHEREAS, in recognition of Indemnitee's need for protection against
personal liability in order to induce Indemnitee to continue to serve the
Company in an effective manner, and to supplement or replace the Company's
directors' and officers' liability insurance coverage, and, in part, to provide
Indemnitee with specific contractual assurance that the protection provided by
the Certificate of Incorporation and the By-laws will be available to
Indemnitee (regardless of, among other things, any amendment to or revocation
of the Certificate of Incorporation and the By-laws), the Company wishes to
provide the Indemnitee with the benefits contemplated by this Agreement; and
WHEREAS, as a result of the provision of such benefits Indemnitee has
agreed to continue to serve the Company as a director;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions: The following terms used herein, shall have the
following respective meanings:
(a) AFFILIATE: of a specified Person is a Person who, directly or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, the Person specified. The term ASSOCIATE used to
indicate a relationship with any Person shall mean (i) any
1
corporation or organization (other than the Company or a Subsidiary) of which
such Person is an officer or partner or is, directly or indirectly, the
Beneficial Owner of ten (10) percent or more of any class of Equity Securities;
(ii) any trust or other estate in which such Person has a substantial
beneficial interest or as to which such Person serves as a trustee or in a
similar fiduciary capacity (other than an Employee Plan Trustee); (iii) any
Relative of such Person; or (iv) any officer or director of any corporation
controlling or controlled by such Person.
(b) BENEFICIAL OWNERSHIP: shall be determined, and a Person shall be
the BENEFICIAL OWNER of all securities which such Person is deemed to own
beneficially, pursuant to Rule 13d-3 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended (or any successor rule or
statutory provision), or, if such Rule 13d-3 shall be rescinded and there shall
be no successor rule or statutory provision thereto, pursuant to such Rule
13d-3 as in effect on the date hereof; provided, however, that a Person shall,
in any event, also be deemed to be the Beneficial Owner of any Voting Shares:
(A) of which such Person or any of its Affiliates or Associates is, directly or
indirectly, the Beneficial Owner; or (B) of which such Person or any of its
Affiliates or Associates has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, and (ii) sole or
shared voting or investment power with respect thereto pursuant to any
agreement, arrangement, understanding, relationship or otherwise (but shall not
be deemed to be the Beneficial Owner of any Voting Shares solely by reason of a
revocable proxy granted for a particular meeting of stockholders, pursuant to a
public solicitation of proxies for such meeting, with respect to shares of
which neither such Person nor any such Affiliate or Associate is otherwise
deemed the Beneficial Owner), or (C) of which another Person is, directly or
indirectly, the Beneficial Owner if such first mentioned Person or any of its
Affiliates or Associates acts with such other Person as a partnership,
syndicate or other group pursuant to any agreement, voting or disposing of any
shares of capital stock of the Company; and provided further, however, that (i)
no director or officer of the Company, nor any Associate or Affiliate of any
such director or officer, shall, solely by reason of any or all of such
directors and officers acting in their capacities as such, be deemed for any
purpose hereof, to be the Beneficial Owner of any Voting Shares of which any
other such director or officer (or any Associate or Affiliate thereof) is the
Beneficial Owner (ii) no trustee of an employee stock ownership or similar plan
of the Company or any Subsidiary ("Employee Plan Trustee") or any Associate or
Affiliate of any such Trustee, shall solely by reason of being an Employee Plan
Trustee or Associate or Affiliate of an Employee Plan Trustee, be deemed for
any purposes hereof to be the Beneficial Owner of any Voting Shares held by or
under any such plan shall not be deemed to trigger any of Indemnitee's rights
hereunder.
2
(c) A CHANGE IN CONTROL: shall be deemed to have occurred if (A) (i)
any Person (other than (a) the Company or any subsidiary, (b) any pension,
profit sharing, employee stock ownership or other employee benefit plan of the
Company or any subsidiary or any trustee of or fiduciary with respect to any
such plan when acting in such capacity, or (c) any Person who is as of the date
hereof the Beneficial owner of 20% or more of the total voting power of the
Voting Shares) is or becomes, after the date of this Agreement, the Beneficial
Owners of 30% or more of the total voting power of the Voting Shares, and (ii)
Franklin, Kanders, and Ashken are the Beneficial Owners in the aggregate of
less than 25% of the Voting Shares, (B) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors of the Company and any new directors whose election or appointment by
the Board of Directors or nomination or recommendation for election by the
Company's stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the beginning
of the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof, or (C) the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation which would
result in the Voting Shares of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into Voting Shares of the surviving entity) at least 50% of the total
voting power represented by the Voting Shares of the Company or such surviving
entity outstanding, or the stockholders of the Company approve a plan of
complete liquidation of the company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets.
(d) CLAIM: means any pending or completed action, suit, arbitration or
proceeding, or any inquiry or investigation, whether brought by or in the right
of the Company or otherwise, whether civil, criminal, administrative,
investigative or other, or any appeal therefrom.
(e) EQUITY SECURITY: shall have the meaning given to such term under
Rule 3all-1 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as in effect on the date hereof.
(f) D&O INSURANCE: means any valid directors' and officers' liability
insurance policy maintained by the Company for the benefit of the Indemnitee,
if any.
(g) DETERMINATION: means a determination, and DETERMINED means a
matter which has been determined based on the facts known at the time, by: (i)
a majority vote of a quorum of disinterested directors, or (ii) if such a
quorum is not obtainable, or even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or, in
the event there has been a change in Control, by Indemnitee as set forth in
Section 6, or (iii) a majority of the disinterested stockholders of the
Company, or (iv) a final adjudication by a court
3
of competent jurisdiction.
(h) EXCLUDED CLAIM: means any payment for Losses or Expenses in
connection with any Claim: (i) based or attributable to Indemnitee gaining in
fact any personal profit or advantage to which Indemnitee is not entitled; or
(ii) for the return by Indemnitee of any remuneration paid to Indemnitee
without the previous approval of the stockholders of the Company which is
illegal; or (iii) for any accounting of profits in fact made from the purchase
or sale by Indemnitee of Securities of the company within the meaning of
Section 16 of the Security Exchange Act of 1934, as amended, or similar
provisions of any state law; or (iv) resulting from Indemnitee's knowingly
fraudulent, dishonest or willful misconduct; or (v) the payment of which by the
Company under this Agreement is not permitted by applicable law.
(i) EXPENSES: means any reasonable expenses incurred by Indemnitee as
a result of a Claim or Claims made against Indemnitee for Indemnifiable Events
including, without limitation, reasonable attorneys' fees and all other costs,
expenses and obligations paid or incurred in connection with investigation,
defending, being a witness in or participating in (including an appeal), or
preparing to defend, be a witness in or participate in any Claim relating to
any Indemnifiable Event.
(j) FINES: means any fine, penalty or, with respect to an employee
benefit plan, any excise tax or penalty assessed with respect thereto.
(k) INDEMNIFIABLE EVENT: means any event or occurrence, occurring
prior to or after the date of the Agreement, related to the fact that
Indemnitee is, was or has agreed to serve as a director of the Company, or by
reason of anything done or not done by Indemnitee, including, but not limited
to, any breach of duty, neglect, error, misstatement, misleading statement,
omission, or other act done or wrongfully attempted by Indemnitee, or any of
the foregoing alleged by any claimant, in any such capacity.
(l) LOSSES: means any amounts or sums which Indemnitee is legally
obligated to pay as a result of a Claim or Claims made against Indemnitee, for
Indemnifiable Events including, without limitation, damages, judgments, and
sums or amounts paid in settlement of a Claim or Claims, and Fines.
(m) PERSON: means any individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
(n) POTENTIAL CHANGE IN CONTROL: shall be deemed to have occurred if
(A) the Company enters into an agreement, the consummation of which would
result in the occurrence of a Change
4
in Control; or (B) the Board of Directors adopts a resolution to the effect
that, for purposes of this Agreement, a Potential Change in Control has
occurred.
(o) RELATIVE: means a Person's spouse, parents, children, siblings,
mother- and father-in-law, sons-and daughters-in-law, and brothers- and
sisters-in-law.
(p) REVIEWING PARTY: means any appropriate person or body consisting
of a member or member of the Company's Board of Directors or any other person
or body appointed by the Board (including the Special Independent Counsel
referred to in Section 6) who is not a party to the particular Claim for which
Indemnitee is seeking indemnification.
(q) SUBSIDIARY: means any corporation of which a majority of any class
of Equity Security is owned, directly or indirectly, by the Company.
(r) TRUST: means the trust established pursuant to Section 7 hereof.
(s) VOTING SHARES: means any issued and outstanding shares of capital
stock of the Company entitled to vote generally in the election of directors.
2. Basic Indemnification Agreement. In consideration of, and as an
inducement to, the Indemnitee rendering valuable services to the Company, the
Company agrees that in the event Indemnitee is or becomes a party to or witness
or other participant in a claim by reason of (or arising in part out of) an
Indemnifiable Event, the Company will indemnify Indemnitee to the fullest
extent authorized by law, against any and all Losses and Expenses (including
all interest, assessments, and other charges paid or payable in connection with
or in respect of such Losses and Expenses) of such Claim, whether or not such
Claim proceeds to judgment or is settled of otherwise is brought to a final
disposition, subject in each case, to the further provisions of this Agreement.
3. Limitations on Indemnification. Notwithstanding the provisions of
Section 2, Indemnitee shall not be indemnified and held harmless from an Losses
or Expenses (a) which have been Determined as provided herein, to constitute an
Excluded Claim; (b) indemnifiable hereunder if and to the extent that
Indemnitee has actually received payment in connection with such Losses and
Expenses pursuant to the Certificate of Incorporation, By-laws, D&O Insurance
or otherwise; or (c) other than pursuant to the last sentence of Section 4(d)
or Section 14, in connection with any claim or proceeding initiated by
Indemnitee, or brought or made by Indemnitee against the Company or any
director or officer of the Company, unless the Company has joined in or the
Board of Directors has authorized such claim or proceeding.
5
4. Indemnification Procedures.
(a) Promptly after receipt by Indemnitee of the notice of any claim,
Indemnitee shall, if indemnification with respect thereto may be sought from
the Company under this Agreement, notify the Company of the commencement
thereof; provided, however, that the failure to give such notice promptly shall
not affect or limit the Company's obligations with respect to the matters
described in the notice of such claim, except to the extent that the Company is
prejudiced thereby. Indemnitee agrees, further, not to make any admission or
effect any settlement with respect to such Claim without the consent of the
Company, except any Claim with respect to which the Indemnitee has undertaken
the defense in accordance with second to the last sentence of Section 4 (d).
(b) If, at the time of the receipt of such notice, the Company has D&O
Insurance in effect, the Company shall give prompt notice of the commencement
of any Claim to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of Indemnitee, all
Losses and Expenses payable as a result of such Claim.
(c) To the extent the Company does not at the time of the Claim have
applicable D&O Insurance, or if a Determination is made that any Expenses
arising out of such Claim will not be payable under the D&O Insurance then in
effect, the Company shall be obligated to pay the Expenses of any Claim in
advance of the final disposition thereof and the company, if appropriate, shall
be entitled to assume the defense of such Claim, with counsel reasonable
satisfactory to Indemnitee, upon the delivery to Indemnitee of reasonable
written notice of its election to do so. After delivery of such notice, the
Company will not be liable to Indemnitee under the Agreement for any legal or
other Expenses subsequently incurred by Indemnitee in connection with such
defense other than reasonable Expenses of investigation; provided that
Indemnitee shall have the right to employ its counsel in such Claim but the
fees and expenses of such counsel incurred after deliver of notice from the
Company of its assumption of such defense shall be at the Indemnitee's expense;
provided further that if: (i) the employment of the counsel by Indemnitee has
been previously authorized by the Company or (ii) the Company shall not, in
fact, have employed counsel to assume the defense of such action, the
reasonable fees and expenses of counsel shall be at the expense of the Company.
(d) All payments on account of the Company's indemnification
obligations under this Agreement shall be made within sixty (60) days of
Indemnitee's written request therefor unless a Determination is made that the
Claims giving rise to Indemnitee's request are Excluded Claims or otherwise not
payable under this Agreement, provided that all payments on account of the
Company's obligation to pay Expenses under Section 4 (c) of this Agreement
prior to the final disposition of any Claim shall be made within thirty (30)
days of Indemnitee's written request
6
therefor and such obligation shall not be subject to any such Determination but
shall be subject to Section 4 (e) of this Agreement. Notwithstanding the
foregoing, such sixty (60) day period may be extended for a reasonable time,
not to exceed an additional thirty (30) days, if the Person making the
Determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating of documentation
and/or information relating thereto. In the event the Company takes the
position that Indemnitee is not entitled to indemnification in connection with
the proposed settlement of any Claim, Indemnitee shall have the right at his
own expense to undertake defense of any such Claim, insofar as such proceeding
involves Claims against the Indemnitee, by written notice given to the Company
within ten (10) days after the Company has notified Indemnitee in writing of
its contention that Indemnitee is not entitled to Indemnification; provided,
however, that the failure to give such notice within such ten-day period shall
not affect or limit the Company's obligations with respect to any such claim if
such Claim is subsequently determine not be an Excluded Claim or otherwise to
be payable under this Agreement, except to the extent that the Company is
prejudiced thereby. If it is subsequently determined in connection with such
proceeding that the Indemnifiable Events are not Excluded Claims and that
Indemnitee, therefore, is entitled to be indemnified under the provision of
Section 2 hereof, the Company shall promptly indemnify Indemnitee.
(e) Indemnitee hereby expressly undertakes and agrees to reimburse the
Company for all Losses and Expenses paid by the Company in connection with any
Claim against Indemnitee in the event and only to the extent that a
Determination shall have been made by a court of competent jurisdiction in a
decision from which there is no further right to appeal that Indemnitee is not
entitled to be indemnified by the Company for such Losses and Expenses because
the Claim is an Excluded Claim or because Indemnitee is otherwise not entitled
to payment under the Agreement.
(f) In connection with any Determination as to whether Indemnitee is
entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish that Indemnitee is not so entitled.
(g) Indemnitee hereby expressly undertakes and agrees to (i) notify
(and deliver to, as applicable) the Company in writing of any and all
information or documents relating to any Claim or matter which may entitle
Indemnitee to indemnification for Losses or Expenses under this Agreement; and
(ii) to notify the Company in writing of any and all developments relating to
any Claim to which the Company has notified Indemnitee in writing pursuant to
the terms of Section 4 (d) herein of its contention that Indemnitee is not
entitled to indemnification under this Agreement.
5. Settlement. The Company shall have no obligation to indemnify
Indemnitee under this Agreement for any amounts paid in settlement of any Claim
effected without the Company's prior written consent. The Company shall not
settle any Claim in which it takes the position that
7
Indemnitee is not entitled to indemnification in connection with such
settlement without the consent of Indemnitee, nor shall the Company settle any
Claim in any manner which would impose any Fine or any obligation on
Indemnitee, without Indemnitee's written consent. Neither the Company nor
Indemnitee shall unreasonably withhold its or his consent to any proposed
settlement.
6. Change in Control: Extraordinary Transactions. The Company and
Indemnitee agree that if there is a Change in Control of the Company (other
than a Change in Control which has been approved by a majority of the Company's
Board of Directors who were directors immediately prior to such Change in
Control), then all Determinations thereafter with respect to the rights of
Indemnitee to be paid Losses and Expenses under this Agreement shall be made
only by a special independent counsel (the "Special Independent Counsel")
selected by Indemnitee and approved by the Company (which approval shall not be
unreasonably withheld) or by a court of competent jurisdiction. The Company
shall pay the reasonable fees of such Special Independent Counsel and shall
indemnify such Special independent Counsel against any and all reasonable
expenses (including reasonable attorneys' fees), claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant
hereto.
The Company covenants and agrees that, in the event of a Change in
Control of the type described in clause (c) of Section 1 (c), the Company will
use its best efforts (a) to have the obligations of the Company under this
Agreement including, but not limited to, those under section 7, expressly
assumed by the surviving, purchasing or succeeding entity, or (b) otherwise
adequately to provide for the satisfaction of the Company's obligations under
this Agreement, in a manner reasonably acceptable to the Indemnitee.
7. Establishment of Trust. In the event of a Potential Change in
Control, the Company shall, upon written request by Indemnitee, create a trust
(the "Trust") for the benefit of Indemnitee and from time to time, upon written
request of Indemnitee, shall fund the Trust in an amount sufficient to satisfy
any and all Losses and Expenses which are actually paid or which Indemnitee
reasonably determines from time to time may be payable by the Company under
this Agreement. The amount or amounts to be deposited in the Trust pursuant to
the foregoing funding obligation shall be determined by the Reviewing Party, in
any case in which the Special Independent Counsel is involved. The terms of the
Trust shall provide that upon a Change in Control: (i) the Trust shall not be
revoked or the principal thereof invaded without the written consent of
Indemnitee; (ii) the trustee of the Trust shall advance within twenty (20) days
of a request by Indemnitee, any and all Expenses to Indemnitee (and Indemnitee
hereby agrees to reimburse the Trust under the circumstances under which
Indemnitee would be required to reimburse the Company under Section 4 (e) of
this Agreement; (iii) the Company shall continue to fund the Trust from time to
time in accordance with the funding obligations set forth above;
8
(iv) the trustee of the Trust shall promptly pay to Indemnitee all Losses and
Expenses for which Indemnitee shall be entitled to indemnification pursuant to
this Agreement; and (v) all unexpended funds in the Trust shall revert to the
Company upon a final determination by a court of competent jurisdiction in a
final decision from which there is not further right of appeal that Indemnitee
has been indemnified under the terms of this Agreement. The trustee of the
Trust shall be chosen by Indemnitee and shall be approved by the Company, which
approval shall not be unreasonably withheld.
8. No Presumption. For purposes of this Agreement, the termination of
any Claim by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere, or its equivalent,
shall not, of itself, create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court
has determined that indemnification is not permitted by applicable law.
9. Non-exclusivity, Etc. . The rights of Indemnitee hereunder shall be
in addition to any other rights Indemnitee may have under the Certificate of
Incorporation, the By-laws, the Delaware General Corporation Law, any vote of
stockholders or disinterested directors or otherwise, both as to action in
Indemnitee's official capacity and as to action in any other capacity by
holding such office, and shall continue after Indemnitee ceases to serve the
Company as a director for so long as Indemnitee shall be subject to any Claim
by reason of (or arising in part out of) an Indemnifiable Event. To the extent
that a change in the Delaware General Corporation Law (whether by statute or
judicial decision) permits greater indemnification by agreement than would be
afforded currently under the Certificate of Incorporation, the By-laws and this
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy
by this Agreement the greater benefits so afforded by such change.
10. Liability Insurance. To the extent the Company maintains an
insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for any director of the Company.
11. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
12. Partial Indemnity, Etc. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Losses and Expenses of a Claim but not, however, for all of the
total amount thereof, the Company shall nevertheless indemnify
9
Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any or
all claims relating in whole or in part to any Indemnifiable Event or in
defense of any issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith.
13. Liability of Company. Indemnitee agrees that neither the
stockholders nor the directors nor any officer, employee, representative or
agent of the Company shall be personally liable for the satisfaction of the
company's obligations under this Agreement and Indemnitee shall look solely to
the assets of the Company for satisfaction of any Claims hereunder.
14. Enforcement.
(a) Indemnitee's right to indemnification and other rights under this
Agreement shall be specifically enforceable by Indemnitee only in the state or
Federal courts of the States of Delaware or New York and shall be enforceable
notwithstanding any adverse Determination by the Company's Board of Directors,
independent legal counsel, the Special Independent Counsel or the Company's
stockholders and no such Determination shall create a presumption that
Indemnitee is not entitled to be indemnified hereunder. In any such action the
Company shall have the burden of proving that indemnification is not required
under this Agreement.
(b) In the event that any action is instituted by Indemnitee under
this Agreement, or to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and reasonable
expenses, including reasonable counsel fees, incurred by Indemnitee with
respect to such actions, unless the court determines that each of the material
assertions made by Indemnitee as a basis for such action was not made in good
faith or was frivolous.
15. Severability. In the event that any provision of this Agreement is
determined by a court to require the Company to do or to fail to do an act
which is in violation of applicable law, such provision (including any
provision within a single section, paragraph or sentence) shall be limited or
modified in its application to the minimum extent necessary to avoid a
violation of laws, and, as so limited or modified, such provision and the
balance of this Agreement shall be enforceable in accordance with their terms
to the fullest extent permitted by law.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to agreements
made and to be performed entirely within such State.
17. Consent to Jurisdiction. The Company and Indemnity each hereby
irrevocably consents to the jurisdiction of the courts of the States of
Delaware and New York for all purposes
10
in connection with any action or proceeding which arises out of or relates to
this Agreement and agrees that any action instituted under this Agreement shall
be brought only in the state and Federal courts of the States of Delaware and
New York.
18. Notices. All notices or other communication required or permitted
hereunder shall be sufficiently given for all purposes if in writing and
personally delivered or sent by registered or certified mail, return receipt
requested, with postage prepaid addressed as follows, or to such other address
as the parties shall have given notice of pursuant hereto:
(a) If to the Company, to:
555 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx X-000
Xxx, Xxx Xxxx 00000
(b) If to the Indemnitee, to:
----------------------------
----------------------------
----------------------------
19. Counterparts. This Agreement may be signed in counterparts, each
of which shall be an original and all of which, when taken together, shall
constitute one and the same instrument.
20. Successors and Assigns. This Agreement shall be (i) binding upon
all successors and assigns of the Company, including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company, and (ii)
binding upon and inure to the benefit of any successors and assigns, heirs, and
personal or legal representatives of Indemnitee.
21. Amendment: Waiver. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless made in a writing
signed by each of the parties hereto. No waiver of any of the provision of this
Agreement shall be or shall constitute a waiver of any other provision hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
11
IN WITNESS WHEREOF, the Company and Indemnitee have executed this
Agreement as of the day and year first above written.
INDEMNITEE
--------------------------------
Name:
BEC GROUP, INC.
By:
------------------------------
Name:
Title:
ATTEST:
By:
--------------------------
Name:
Title:
12
