Exhibit 10.15
INDEMNIFICATION AGREEMENT
AGREEMENT between Xxxxxx Inc., a Delaware corporation (the "Company"),
and Xxxxxxxxxxx X. Xxxxxx (the "Indemnitee").
WHEREAS, it is essential to the Company to retain and attract as
directors, officers and representatives the most capable persons available;
and
WHEREAS, Indemnitee is a director, officer or representative of the
Company; and
WHEREAS, both the Company and Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors, officers
and representatives of public companies in today's environment; and
WHEREAS, the Articles of Incorporation of the Company and the Delaware
General Corporation Law each provide that the indemnification provided
therein shall not be exclusive; and
WHEREAS, in recognition of the Indemnitee's need for substantial
protection against personal liability in order to enhance Indemnitee's
continued service to the Company in an effective manner, the Company wishes
to provide in this Agreement for the indemnification of and the advancing
of expenses to Indemnitee to the full extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained, for the continued coverage of Indemnitee under the
Company's directors' and officers' liability insurance policies;
NOW, THEREFORE, in consideration of the premises and of Indemnitee
continuing to serve the Company directly or, at its request, with another
enterprise, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
(a) Change in Control shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than a trustee or
other fiduciary holding securities under an employee benefit plan of
the Company or a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 20% or more of
the total voting power represented by the Company's then outstanding
Voting Securities without the prior approval of the Board of
Directors, or (ii) 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 director whose election by the
Board of Directors or nomination 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 (iii) 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
Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at least 80%
of the total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation, 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 the
Company's assets.
(b) Claim shall mean any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation, whether conducted
by the Company or any other party, that Indemnitee in good faith
believes might lead to the institution of any such action, suit or
proceeding, whether civil, criminal, administrative, investigative or
other.
(c) Expenses shall mean include all costs, expenses (including
attorneys' fees) and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal) or preparing to defend, be a witness in or
participate in any Claim relating to any Indemnifiable Event
(including all interest, assessments and other charges paid or payable
in connection with or in respect of any of the foregoing).
(d) Judgments shall mean judgments, fines, penalties and amounts
paid in settlement that are paid or payable in connection with any
Claim relating to any Indemnifiable Event (including all interest,
assessments and other charges paid or payable in connection with or in
respect of any of the foregoing).
(e) Indemnifiable Event shall mean any event or occurrence related
to the fact that Indemnitee is or was a director, director nominee,
officer or representative of the Company, or is or was serving at the
request of the Company as a director, trustee, officer, employee,
agent or representative of another corporation, domestic or foreign,
nonprofit or for profit, partnership, joint venture, employee benefit
plan, trust or other enterprise, or by reason of anything done or not
done by Indemnitee in any such capacity.
(f) Reviewing Party shall mean any appropriate person or body
consisting of a member or members 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 3) who is not a
party to the particular Claim for which Indemnitee is seeking
indemnification.
(g) Voting Securities shall mean any securities of the Company
that vote generally in the election of directors.
2. Scope of Indemnification.
(a) Indemnification for Judgments and Expenses. In the event
Indemnitee was, is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or
other participant in, a Claim by reason of (or arising in part out of)
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an Indemnifiable Event, the Company shall indemnify Indemnitee to the
fullest extent permitted by law against any and all Expenses and
Judgments arising from or relating to such Claim. Except as otherwise
provided in Section 2(b), such indemnification shall be made as soon
as practicable, but in any event not later than thirty (30) days,
after written demand therefor is presented to the Company by or on
behalf of the Indemnitee.
(b) Indemnification and Advance Payment of Expenses. Any and all
Expenses and any and all expenses referred to in Section 2(c) shall be
paid by the Company promptly as they are incurred by Indemnitee (any
such payment of expenses by the Company is hereinafter referred to as
an "Expense Advance"). Indemnitee shall be obligated, and hereby
agrees, to repay the amount of Expenses so paid only to the extent
that it is proved by clear and convincing evidence in a court of
competent jurisdiction that his action or failure to act involved an
act or omission undertaken with deliberate intent to cause injury to
the Company or violate the law or undertaken with reckless disregard
for the best interests of the Company. Indemnitee hereby further
agrees to cooperate reasonably with the Company concerning any Claim.
(c) Indemnification for Additional Expenses. The Company shall
indemnify Indemnitee against any and all expenses (including
attorneys' fees) that are incurred by Indemnitee in connection with
any claim asserted against or action brought by Indemnitee for (i)
indemnification of Expenses or Judgments or advance payment of
Expenses by the Company under this Agreement or under any other
agreement, the Company's articles, statute or rule of law now or
hereafter in effect relating to Claims for Indemnifiable Events and
(ii) recovery under any directors' and officers' liability insurance
policy or policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the
case may be.
(d) Partial Indemnity. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some
or a portion of the Judgments and Expenses arising from or relating to
a Claim but not, however, for all of the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.
(e) Indemnification of Successful Defense Expenses.
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 an
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.
3. Reviewing Party Determinations.
(a) General Rules. Notwithstanding the provisions of Section 2,
the obligations of the Company under Section 2(a) shall be subject to
the condition that the Reviewing Party shall not have determined (in a
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written opinion, in any case in which the special, independent counsel
referred to in Section 4 hereof is involved) that Indemnitee would not
be permitted to be indemnified under applicable law; provided,
however, that if Indemnitee has commenced legal proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee
should be indemnified under applicable law, any determination made by
the Reviewing Party that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding until a final
judicial determination is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or lapsed) and any such
determination by the Reviewing Party shall be modified, to the extent
necessary, to conform to such final judicial determination.
(b) Selection of Reviewing Party. If there has not been a Change
in Control, the Reviewing Party shall be selected by the Board of
Directors. If there has been such a Change in Control, the Reviewing
Party shall be the special, independent counsel referred to in Section
4 hereof.
(c) Judicial Review. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that Indemnitee
substantially would not be permitted to be indemnified in whole or in
part under applicable law, Indemnitee shall have the right to commence
litigation in any court in the State of Delaware having subject matter
jurisdiction thereof and in which venue is proper seeking an initial
determination by the court or challenging any such determination by
the Reviewing Party or any aspect thereof, and the Company hereby
consents to service of process and to appear in any such proceeding.
Any determination by the Reviewing Party otherwise shall be conclusive
and binding on the Company and Indemnitee.
(d) Burden of Proof. In connection with any determination by the
Reviewing Party pursuant to Section 3(a), or by a court of competent
jurisdiction pursuant to Section 3(c) or otherwise, as to whether
Indemnitee is entitled to be indemnified hereunder, the burden of
proof shall be on the Company to establish by clear and convincing
evidence that Indemnitee is not so entitled.
4. Change in Control. The Company agrees that if there is a Change in
Control of the Company then with respect to all matters thereafter
arising concerning the rights of Indemnitee to indemnity payments
under this Agreement or under any other agreement, the Company's
Certificate of Incorporation, statute or rule of law now or hereafter
in effect relating to Claims for Indemnifiable Events, the Company
shall seek legal advice only from special, independent counsel
selected by Indemnitee and approved by the Company (which approval
shall not be unreasonably withheld), and who has not otherwise
performed services for the Company or Indemnitee within the last five
years (other than in connection with such matters); provided, however,
a majority of the Company's Board of Directors, which majority were
directors immediately prior to such Change in Control, may waive this
requirement. The Company agrees to pay the reasonable fees of the
special, independent counsel referred to above and to indemnify fully
such counsel against any and all expenses (including attorneys' fees),
claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
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5. No Presumption. For purposes of this Agreement, the termination of any
claim, action, suit or proceeding, by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea
of nolo contendere, or its equivalent, shall not 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.
6. Nonexclusivity. The rights of the Indemnitee hereunder shall be in
addition to any other rights Indemnitee may now or hereafter have to
indemnification by the Company. More specifically, the Parties intend
that Indemnitee shall be entitled to indemnification to the maximum
extent permitted by any or all of the following:
(a) The fullest benefits provided by the Company's
Certificate of Incorporation and By-Laws or their equivalent of
the Company in effect at the time the Indemnifiable Event occurs
or at the time Expenses are incurred by Indemnitee;
(b) The fullest benefits allowable under Delaware law in
effect at the date hereof or as the same may be amended to the
extent that such benefits are increased thereby;
(c) The fullest benefits allowable under the law of the
jurisdiction under which the Company exists at the time the
Indemnifiable Event occurs or at the time Expenses are incurred
by the Indemnitee; and
(d) Such other benefits as are or may be otherwise available
to Indemnitee pursuant to this Agreement, any other agreement or
otherwise.
The parties intend that combination of two or more of the benefits
referred to in (a) through (d) shall be available to Indemnitee to the
extent that the document or law providing for such benefits does not
require that the benefits provided therein be exclusive of other
benefits. The Company hereby undertakes to use its best efforts to
assist Indemnitee, in all proper and legal ways, to obtain all such
benefits to which Indemnitee is entitled.
7. Liability Insurance. The rights of the Indemnitee hereunder shall also
be in addition to any other rights Indemnitee may now or hereafter
have under policies of insurance maintained by the Company or
otherwise. 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 Company director, officer or representative.
The Company shall maintain such insurance coverage for so long as
Indemnitee's services are covered hereunder, provided and to the
extent that such insurance is available on a basis acceptable to the
Company. In the event that such insurance becomes unavailable in the
amount of the present policy limits or in the present scope of
coverage at premium costs and on other terms acceptable to the
Company, then the Company may forego maintenance of all or a portion
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of such insurance coverage. However, in the event of any reduction in
(or cancellation of) such insurance coverage (whether voluntary or
involuntary), the Company shall, and hereby agrees to, stand as a
self-insurer with respect to the coverage, or portion thereof, not
retained, and shall indemnify the Indemnitee against any loss arising
out of the reduction in or cancellation of such insurance coverage.
8. Escrow Fund. As collateral security for its obligations hereunder
(including specifically its indemnity obligations [other than
Judgments] and other obligations pursuant to Sections 2,6 and 7) and
under similar agreements with other directors, officers and
representatives, in the event of a Change in Control, the Company
shall dedicate and maintain, for a period of five years following the
Change of Control, an escrow account in the aggregate of ten million
dollars ($10,000,000) by depositing assets or bank letters of credit
in escrow or reserving lines of credit that may be drawn down by an
escrow agent in said amount (the "Escrow Reserve"). The Company shall
promptly following establishment of the Escrow Reserve provide
Indemnitee with a true and complete copy of the agreement relating to
the establishment and operation of the Escrow Reserve, together with
such additional documentation or information with respect to the
Escrow Reserve as Indemnitee may from time to time reasonably request.
The Company shall promptly following establishment of the Escrow
Reserve deliver an executed copy of this Agreement to the escrow agent
for the Escrow Reserve to evidence to that agent that Indemnitee is a
beneficiary of that Escrow Reserve and shall deliver to Indemnitee the
escrow agent's signed receipt evidencing that delivery.
9. Period of Limitations. No legal action shall be brought and no cause
of action shall be asserted by or on behalf of the Company or any
affiliate of the Company against Indemnitee, Indemnitee's spouse,
heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of
action, and any claim or cause of action of the Company or its
affiliate shall be extinguished and deemed released unless asserted by
the timely filing of legal action within such two-year period;
provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action such shorter period
shall govern.
10. Amendments. No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions thereof
(whether or not similar) nor shall such waiver constitute a continuing
waiver.
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. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any claim made
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against Indemnitee to the extent Indemnitee has otherwise actually
received payment (under any insurance policy, article or otherwise) of
the amounts otherwise indemnifiable hereunder.
13. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their
respective successors, assigns, 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,
spouses, heirs, and personal and legal representatives. This Agreement
shall continue in effect regardless of whether Indemnitee continues to
serve as a director, officer or representative of the Company of or
any other enterprise at the Company's request.
14. Severability. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision
within a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable,
and the remaining provisions shall remain enforceable to the fullest
extent permitted by law.
15. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in such state without
giving effect to the principles of conflicts of laws.
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Executed and effective as of this 14th day of November, 1995.
XXXXXX INC.
By /s/ X. Xxxxx Xxxxxxxxxx
Name: X. Xxxxx Xxxxxxxxxx
Title: Chairman, President and Chief
Executive Officer
Date:
INDEMNITEE:
By /s/ Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title:
Date:
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INDEMNIFICATION AGREEMENT
AGREEMENT between Xxxxxx Inc., a Delaware corporation (the "Company"),
and Xxxxxxx X. Xxxxxxx (the "Indemnitee").
WHEREAS, it is essential to the Company to retain and attract as
directors, officers and representatives the most capable persons available;
and
WHEREAS, Indemnitee is a director, officer or representative of the
Company; and
WHEREAS, both the Company and Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors, officers
and representatives of public companies in today's environment; and
WHEREAS, the Articles of Incorporation of the Company and the Delaware
General Corporation Law each provide that the indemnification provided
therein shall not be exclusive; and
WHEREAS, in recognition of the Indemnitee's need for substantial
protection against personal liability in order to enhance Indemnitee's
continued service to the Company in an effective manner, the Company wishes
to provide in this Agreement for the indemnification of and the advancing
of expenses to Indemnitee to the full extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained, for the continued coverage of Indemnitee under the
Company's directors' and officers' liability insurance policies;
NOW, THEREFORE, in consideration of the premises and of Indemnitee
continuing to serve the Company directly or, at its request, with another
enterprise, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
(a) Change in Control shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than a trustee or
other fiduciary holding securities under an employee benefit plan of
the Company or a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 20% or more of
the total voting power represented by the Company's then outstanding
Voting Securities without the prior approval of the Board of
Directors, or (ii) 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 director whose election by the
Board of Directors or nomination 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 (iii) 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
Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at least 80%
of the total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation, 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 the
Company's assets.
(b) Claim shall mean any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation, whether conducted
by the Company or any other party, that Indemnitee in good faith
believes might lead to the institution of any such action, suit or
proceeding, whether civil, criminal, administrative, investigative or
other.
(c) Expenses shall mean include all costs, expenses (including
attorneys' fees) and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal) or preparing to defend, be a witness in or
participate in any Claim relating to any Indemnifiable Event
(including all interest, assessments and other charges paid or payable
in connection with or in respect of any of the foregoing).
(d) Judgments shall mean judgments, fines, penalties and amounts
paid in settlement that are paid or payable in connection with any
Claim relating to any Indemnifiable Event (including all interest,
assessments and other charges paid or payable in connection with or in
respect of any of the foregoing).
(e) Indemnifiable Event shall mean any event or occurrence related
to the fact that Indemnitee is or was a director, director nominee,
officer or representative of the Company, or is or was serving at the
request of the Company as a director, trustee, officer, employee,
agent or representative of another corporation, domestic or foreign,
nonprofit or for profit, partnership, joint venture, employee benefit
plan, trust or other enterprise, or by reason of anything done or not
done by Indemnitee in any such capacity.
(f) Reviewing Party shall mean any appropriate person or body
consisting of a member or members 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 3) who is not a
party to the particular Claim for which Indemnitee is seeking
indemnification.
(g) Voting Securities shall mean any securities of the Company
that vote generally in the election of directors.
2. Scope of Indemnification.
(a) Indemnification for Judgments and Expenses. In the event
Indemnitee was, is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or
other participant in, a Claim by reason of (or arising in part out of)
2
an Indemnifiable Event, the Company shall indemnify Indemnitee to the
fullest extent permitted by law against any and all Expenses and
Judgments arising from or relating to such Claim. Except as otherwise
provided in Section 2(b), such indemnification shall be made as soon
as practicable, but in any event not later than thirty (30) days,
after written demand therefor is presented to the Company by or on
behalf of the Indemnitee.
(b) Indemnification and Advance Payment of Expenses. Any and all
Expenses and any and all expenses referred to in Section 2(c) shall be
paid by the Company promptly as they are incurred by Indemnitee (any
such payment of expenses by the Company is hereinafter referred to as
an "Expense Advance"). Indemnitee shall be obligated, and hereby
agrees, to repay the amount of Expenses so paid only to the extent
that it is proved by clear and convincing evidence in a court of
competent jurisdiction that his action or failure to act involved an
act or omission undertaken with deliberate intent to cause injury to
the Company or violate the law or undertaken with reckless disregard
for the best interests of the Company. Indemnitee hereby further
agrees to cooperate reasonably with the Company concerning any Claim.
(c) Indemnification for Additional Expenses. The Company shall
indemnify Indemnitee against any and all expenses (including
attorneys' fees) that are incurred by Indemnitee in connection with
any claim asserted against or action brought by Indemnitee for (i)
indemnification of Expenses or Judgments or advance payment of
Expenses by the Company under this Agreement or under any other
agreement, the Company's articles, statute or rule of law now or
hereafter in effect relating to Claims for Indemnifiable Events and
(ii) recovery under any directors' and officers' liability insurance
policy or policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the
case may be.
(d) Partial Indemnity. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some
or a portion of the Judgments and Expenses arising from or relating to
a Claim but not, however, for all of the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.
(e) Indemnification of Successful Defense Expenses.
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 an
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.
3. Reviewing Party Determinations.
(a) General Rules. Notwithstanding the provisions of Section 2,
the obligations of the Company under Section 2(a) shall be subject to
the condition that the Reviewing Party shall not have determined (in a
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written opinion, in any case in which the special, independent counsel
referred to in Section 4 hereof is involved) that Indemnitee would not
be permitted to be indemnified under applicable law; provided,
however, that if Indemnitee has commenced legal proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee
should be indemnified under applicable law, any determination made by
the Reviewing Party that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding until a final
judicial determination is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or lapsed) and any such
determination by the Reviewing Party shall be modified, to the extent
necessary, to conform to such final judicial determination.
(b) Selection of Reviewing Party. If there has not been a Change
in Control, the Reviewing Party shall be selected by the Board of
Directors. If there has been such a Change in Control, the Reviewing
Party shall be the special, independent counsel referred to in Section
4 hereof.
(c) Judicial Review. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that Indemnitee
substantially would not be permitted to be indemnified in whole or in
part under applicable law, Indemnitee shall have the right to commence
litigation in any court in the State of Delaware having subject matter
jurisdiction thereof and in which venue is proper seeking an initial
determination by the court or challenging any such determination by
the Reviewing Party or any aspect thereof, and the Company hereby
consents to service of process and to appear in any such proceeding.
Any determination by the Reviewing Party otherwise shall be conclusive
and binding on the Company and Indemnitee.
(d) Burden of Proof. In connection with any determination by the
Reviewing Party pursuant to Section 3(a), or by a court of competent
jurisdiction pursuant to Section 3(c) or otherwise, as to whether
Indemnitee is entitled to be indemnified hereunder, the burden of
proof shall be on the Company to establish by clear and convincing
evidence that Indemnitee is not so entitled.
4. Change in Control. The Company agrees that if there is a Change in
Control of the Company then with respect to all matters thereafter
arising concerning the rights of Indemnitee to indemnity payments
under this Agreement or under any other agreement, the Company's
Certificate of Incorporation, statute or rule of law now or hereafter
in effect relating to Claims for Indemnifiable Events, the Company
shall seek legal advice only from special, independent counsel
selected by Indemnitee and approved by the Company (which approval
shall not be unreasonably withheld), and who has not otherwise
performed services for the Company or Indemnitee within the last five
years (other than in connection with such matters); provided, however,
a majority of the Company's Board of Directors, which majority were
directors immediately prior to such Change in Control, may waive this
requirement. The Company agrees to pay the reasonable fees of the
special, independent counsel referred to above and to indemnify fully
such counsel against any and all expenses (including attorneys' fees),
claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
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5. No Presumption. For purposes of this Agreement, the termination of any
claim, action, suit or proceeding, by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea
of nolo contendere, or its equivalent, shall not 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.
6. Nonexclusivity. The rights of the Indemnitee hereunder shall be in
addition to any other rights Indemnitee may now or hereafter have to
indemnification by the Company. More specifically, the Parties intend
that Indemnitee shall be entitled to indemnification to the maximum
extent permitted by any or all of the following:
(a) The fullest benefits provided by the Company's
Certificate of Incorporation and By-Laws or their equivalent of
the Company in effect at the time the Indemnifiable Event occurs
or at the time Expenses are incurred by Indemnitee;
(b) The fullest benefits allowable under Delaware law in
effect at the date hereof or as the same may be amended to the
extent that such benefits are increased thereby;
(c) The fullest benefits allowable under the law of the
jurisdiction under which the Company exists at the time the
Indemnifiable Event occurs or at the time Expenses are incurred
by the Indemnitee; and
(d) Such other benefits as are or may be otherwise available
to Indemnitee pursuant to this Agreement, any other agreement or
otherwise.
The parties intend that combination of two or more of the benefits
referred to in (a) through (d) shall be available to Indemnitee to the
extent that the document or law providing for such benefits does not
require that the benefits provided therein be exclusive of other
benefits. The Company hereby undertakes to use its best efforts to
assist Indemnitee, in all proper and legal ways, to obtain all such
benefits to which Indemnitee is entitled.
7. Liability Insurance. The rights of the Indemnitee hereunder shall also
be in addition to any other rights Indemnitee may now or hereafter
have under policies of insurance maintained by the Company or
otherwise. 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 Company director, officer or representative.
The Company shall maintain such insurance coverage for so long as
Indemnitee's services are covered hereunder, provided and to the
extent that such insurance is available on a basis acceptable to the
Company. In the event that such insurance becomes unavailable in the
amount of the present policy limits or in the present scope of
coverage at premium costs and on other terms acceptable to the
Company, then the Company may forego maintenance of all or a portion
5
of such insurance coverage. However, in the event of any reduction in
(or cancellation of) such insurance coverage (whether voluntary or
involuntary), the Company shall, and hereby agrees to, stand as a
self-insurer with respect to the coverage, or portion thereof, not
retained, and shall indemnify the Indemnitee against any loss arising
out of the reduction in or cancellation of such insurance coverage.
8. Escrow Fund. As collateral security for its obligations hereunder
(including specifically its indemnity obligations [other than
Judgments] and other obligations pursuant to Sections 2,6 and 7) and
under similar agreements with other directors, officers and
representatives, in the event of a Change in Control, the Company
shall dedicate and maintain, for a period of five years following the
Change of Control, an escrow account in the aggregate of ten million
dollars ($10,000,000) by depositing assets or bank letters of credit
in escrow or reserving lines of credit that may be drawn down by an
escrow agent in said amount (the "Escrow Reserve"). The Company shall
promptly following establishment of the Escrow Reserve provide
Indemnitee with a true and complete copy of the agreement relating to
the establishment and operation of the Escrow Reserve, together with
such additional documentation or information with respect to the
Escrow Reserve as Indemnitee may from time to time reasonably request.
The Company shall promptly following establishment of the Escrow
Reserve deliver an executed copy of this Agreement to the escrow agent
for the Escrow Reserve to evidence to that agent that Indemnitee is a
beneficiary of that Escrow Reserve and shall deliver to Indemnitee the
escrow agent's signed receipt evidencing that delivery.
9. Period of Limitations. No legal action shall be brought and no cause
of action shall be asserted by or on behalf of the Company or any
affiliate of the Company against Indemnitee, Indemnitee's spouse,
heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of
action, and any claim or cause of action of the Company or its
affiliate shall be extinguished and deemed released unless asserted by
the timely filing of legal action within such two-year period;
provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action such shorter period
shall govern.
10. Amendments. No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions thereof
(whether or not similar) nor shall such waiver constitute a continuing
waiver.
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. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any claim made
6
against Indemnitee to the extent Indemnitee has otherwise actually
received payment (under any insurance policy, article or otherwise) of
the amounts otherwise indemnifiable hereunder.
13. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their
respective successors, assigns, 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,
spouses, heirs, and personal and legal representatives. This Agreement
shall continue in effect regardless of whether Indemnitee continues to
serve as a director, officer or representative of the Company of or
any other enterprise at the Company's request.
14. Severability. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision
within a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable,
and the remaining provisions shall remain enforceable to the fullest
extent permitted by law.
15. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in such state without
giving effect to the principles of conflicts of laws.
7
Executed and effective as of this 27th day of February, 1997.
XXXXXX INC.
By /s/ X. Xxxxx Xxxxxxxxxx
Name: X. Xxxxx Xxxxxxxxxx
Title: Chairman, President and Chief
Executive Officer
Date:
INDEMNITEE:
By /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title:
Date:
8
INDEMNIFICATION AGREEMENT
AGREEMENT between Xxxxxx Inc., a Delaware corporation (the "Company"),
and Xxxx X. XxxxxXxxxx (the "Indemnitee").
WHEREAS, it is essential to the Company to retain and attract as
directors, officers and representatives the most capable persons available;
and
WHEREAS, Indemnitee is a director, officer or representative of the
Company; and
WHEREAS, both the Company and Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors, officers
and representatives of public companies in today's environment; and
WHEREAS, the Articles of Incorporation of the Company and the Delaware
General Corporation Law each provide that the indemnification provided
therein shall not be exclusive; and
WHEREAS, in recognition of the Indemnitee's need for substantial
protection against personal liability in order to enhance Indemnitee's
continued service to the Company in an effective manner, the Company wishes
to provide in this Agreement for the indemnification of and the advancing
of expenses to Indemnitee to the full extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained, for the continued coverage of Indemnitee under the
Company's directors' and officers' liability insurance policies;
NOW, THEREFORE, in consideration of the premises and of Indemnitee
continuing to serve the Company directly or, at its request, with another
enterprise, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
(a) Change in Control shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than a trustee or
other fiduciary holding securities under an employee benefit plan of
the Company or a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 20% or more of
the total voting power represented by the Company's then outstanding
Voting Securities without the prior approval of the Board of
Directors, or (ii) 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 director whose election by the
Board of Directors or nomination 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 (iii) 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
Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at least 80%
of the total voting power represented by the Voting Securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation, 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 the
Company's assets.
(b) Claim shall mean any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation, whether conducted
by the Company or any other party, that Indemnitee in good faith
believes might lead to the institution of any such action, suit or
proceeding, whether civil, criminal, administrative, investigative or
other.
(c) Expenses shall mean include all costs, expenses (including
attorneys' fees) and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal) or preparing to defend, be a witness in or
participate in any Claim relating to any Indemnifiable Event
(including all interest, assessments and other charges paid or payable
in connection with or in respect of any of the foregoing).
(d) Judgments shall mean judgments, fines, penalties and amounts
paid in settlement that are paid or payable in connection with any
Claim relating to any Indemnifiable Event (including all interest,
assessments and other charges paid or payable in connection with or in
respect of any of the foregoing).
(e) Indemnifiable Event shall mean any event or occurrence related
to the fact that Indemnitee is or was a director, director nominee,
officer or representative of the Company, or is or was serving at the
request of the Company as a director, trustee, officer, employee,
agent or representative of another corporation, domestic or foreign,
nonprofit or for profit, partnership, joint venture, employee benefit
plan, trust or other enterprise, or by reason of anything done or not
done by Indemnitee in any such capacity.
(f) Reviewing Party shall mean any appropriate person or body
consisting of a member or members 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 3) who is not a
party to the particular Claim for which Indemnitee is seeking
indemnification.
(g) Voting Securities shall mean any securities of the Company
that vote generally in the election of directors.
2. Scope of Indemnification.
(a) Indemnification for Judgments and Expenses. In the event
Indemnitee was, is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or
other participant in, a Claim by reason of (or arising in part out of)
2
an Indemnifiable Event, the Company shall indemnify Indemnitee to the
fullest extent permitted by law against any and all Expenses and
Judgments arising from or relating to such Claim. Except as otherwise
provided in Section 2(b), such indemnification shall be made as soon
as practicable, but in any event not later than thirty (30) days,
after written demand therefor is presented to the Company by or on
behalf of the Indemnitee.
(b) Indemnification and Advance Payment of Expenses. Any and all
Expenses and any and all expenses referred to in Section 2(c) shall be
paid by the Company promptly as they are incurred by Indemnitee (any
such payment of expenses by the Company is hereinafter referred to as
an "Expense Advance"). Indemnitee shall be obligated, and hereby
agrees, to repay the amount of Expenses so paid only to the extent
that it is proved by clear and convincing evidence in a court of
competent jurisdiction that his action or failure to act involved an
act or omission undertaken with deliberate intent to cause injury to
the Company or violate the law or undertaken with reckless disregard
for the best interests of the Company. Indemnitee hereby further
agrees to cooperate reasonably with the Company concerning any Claim.
(c) Indemnification for Additional Expenses. The Company shall
indemnify Indemnitee against any and all expenses (including
attorneys' fees) that are incurred by Indemnitee in connection with
any claim asserted against or action brought by Indemnitee for (i)
indemnification of Expenses or Judgments or advance payment of
Expenses by the Company under this Agreement or under any other
agreement, the Company's articles, statute or rule of law now or
hereafter in effect relating to Claims for Indemnifiable Events and
(ii) recovery under any directors' and officers' liability insurance
policy or policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the
case may be.
(d) Partial Indemnity. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some
or a portion of the Judgments and Expenses arising from or relating to
a Claim but not, however, for all of the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled.
(e) Indemnification of Successful Defense Expenses.
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 an
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.
3. Reviewing Party Determinations.
(a) General Rules. Notwithstanding the provisions of Section 2,
the obligations of the Company under Section 2(a) shall be subject to
the condition that the Reviewing Party shall not have determined (in a
3
written opinion, in any case in which the special, independent counsel
referred to in Section 4 hereof is involved) that Indemnitee would not
be permitted to be indemnified under applicable law; provided,
however, that if Indemnitee has commenced legal proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee
should be indemnified under applicable law, any determination made by
the Reviewing Party that Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding until a final
judicial determination is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or lapsed) and any such
determination by the Reviewing Party shall be modified, to the extent
necessary, to conform to such final judicial determination.
(b) Selection of Reviewing Party. If there has not been a Change
in Control, the Reviewing Party shall be selected by the Board of
Directors. If there has been such a Change in Control, the Reviewing
Party shall be the special, independent counsel referred to in Section
4 hereof.
(c) Judicial Review. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that Indemnitee
substantially would not be permitted to be indemnified in whole or in
part under applicable law, Indemnitee shall have the right to commence
litigation in any court in the State of Delaware having subject matter
jurisdiction thereof and in which venue is proper seeking an initial
determination by the court or challenging any such determination by
the Reviewing Party or any aspect thereof, and the Company hereby
consents to service of process and to appear in any such proceeding.
Any determination by the Reviewing Party otherwise shall be conclusive
and binding on the Company and Indemnitee.
(d) Burden of Proof. In connection with any determination by the
Reviewing Party pursuant to Section 3(a), or by a court of competent
jurisdiction pursuant to Section 3(c) or otherwise, as to whether
Indemnitee is entitled to be indemnified hereunder, the burden of
proof shall be on the Company to establish by clear and convincing
evidence that Indemnitee is not so entitled.
4. Change in Control. The Company agrees that if there is a Change in
Control of the Company then with respect to all matters thereafter
arising concerning the rights of Indemnitee to indemnity payments
under this Agreement or under any other agreement, the Company's
Certificate of Incorporation, statute or rule of law now or hereafter
in effect relating to Claims for Indemnifiable Events, the Company
shall seek legal advice only from special, independent counsel
selected by Indemnitee and approved by the Company (which approval
shall not be unreasonably withheld), and who has not otherwise
performed services for the Company or Indemnitee within the last five
years (other than in connection with such matters); provided, however,
a majority of the Company's Board of Directors, which majority were
directors immediately prior to such Change in Control, may waive this
requirement. The Company agrees to pay the reasonable fees of the
special, independent counsel referred to above and to indemnify fully
such counsel against any and all expenses (including attorneys' fees),
claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
4
5. No Presumption. For purposes of this Agreement, the termination of any
claim, action, suit or proceeding, by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea
of nolo contendere, or its equivalent, shall not 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.
6. Nonexclusivity. The rights of the Indemnitee hereunder shall be in
addition to any other rights Indemnitee may now or hereafter have to
indemnification by the Company. More specifically, the Parties intend
that Indemnitee shall be entitled to indemnification to the maximum
extent permitted by any or all of the following:
(a) The fullest benefits provided by the Company's
Certificate of Incorporation and By-Laws or their equivalent of
the Company in effect at the time the Indemnifiable Event occurs
or at the time Expenses are incurred by Indemnitee;
(b) The fullest benefits allowable under Delaware law in
effect at the date hereof or as the same may be amended to the
extent that such benefits are increased thereby;
(c) The fullest benefits allowable under the law of the
jurisdiction under which the Company exists at the time the
Indemnifiable Event occurs or at the time Expenses are incurred
by the Indemnitee; and
(d) Such other benefits as are or may be otherwise available
to Indemnitee pursuant to this Agreement, any other agreement or
otherwise.
The parties intend that combination of two or more of the benefits
referred to in (a) through (d) shall be available to Indemnitee to the
extent that the document or law providing for such benefits does not
require that the benefits provided therein be exclusive of other
benefits. The Company hereby undertakes to use its best efforts to
assist Indemnitee, in all proper and legal ways, to obtain all such
benefits to which Indemnitee is entitled.
7. Liability Insurance. The rights of the Indemnitee hereunder shall also
be in addition to any other rights Indemnitee may now or hereafter
have under policies of insurance maintained by the Company or
otherwise. 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 Company director, officer or representative.
The Company shall maintain such insurance coverage for so long as
Indemnitee's services are covered hereunder, provided and to the
extent that such insurance is available on a basis acceptable to the
Company. In the event that such insurance becomes unavailable in the
amount of the present policy limits or in the present scope of
coverage at premium costs and on other terms acceptable to the
Company, then the Company may forego maintenance of all or a portion
5
of such insurance coverage. However, in the event of any reduction in
(or cancellation of) such insurance coverage (whether voluntary or
involuntary), the Company shall, and hereby agrees to, stand as a
self-insurer with respect to the coverage, or portion thereof, not
retained, and shall indemnify the Indemnitee against any loss arising
out of the reduction in or cancellation of such insurance coverage.
8. Escrow Fund. As collateral security for its obligations hereunder
(including specifically its indemnity obligations [other than
Judgments] and other obligations pursuant to Sections 2,6 and 7) and
under similar agreements with other directors, officers and
representatives, in the event of a Change in Control, the Company
shall dedicate and maintain, for a period of five years following the
Change of Control, an escrow account in the aggregate of ten million
dollars ($10,000,000) by depositing assets or bank letters of credit
in escrow or reserving lines of credit that may be drawn down by an
escrow agent in said amount (the "Escrow Reserve"). The Company shall
promptly following establishment of the Escrow Reserve provide
Indemnitee with a true and complete copy of the agreement relating to
the establishment and operation of the Escrow Reserve, together with
such additional documentation or information with respect to the
Escrow Reserve as Indemnitee may from time to time reasonably request.
The Company shall promptly following establishment of the Escrow
Reserve deliver an executed copy of this Agreement to the escrow agent
for the Escrow Reserve to evidence to that agent that Indemnitee is a
beneficiary of that Escrow Reserve and shall deliver to Indemnitee the
escrow agent's signed receipt evidencing that delivery.
9. Period of Limitations. No legal action shall be brought and no cause
of action shall be asserted by or on behalf of the Company or any
affiliate of the Company against Indemnitee, Indemnitee's spouse,
heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of
action, and any claim or cause of action of the Company or its
affiliate shall be extinguished and deemed released unless asserted by
the timely filing of legal action within such two-year period;
provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action such shorter period
shall govern.
10. Amendments. No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions thereof
(whether or not similar) nor shall such waiver constitute a continuing
waiver.
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. No Duplication of Payments. The Company shall not be liable under this
Agreement to make any payment in connection with any claim made
6
against Indemnitee to the extent Indemnitee has otherwise actually
received payment (under any insurance policy, article or otherwise) of
the amounts otherwise indemnifiable hereunder.
13. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their
respective successors, assigns, 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,
spouses, heirs, and personal and legal representatives. This Agreement
shall continue in effect regardless of whether Indemnitee continues to
serve as a director, officer or representative of the Company of or
any other enterprise at the Company's request.
14. Severability. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision
within a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable,
and the remaining provisions shall remain enforceable to the fullest
extent permitted by law.
15. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed in such state without
giving effect to the principles of conflicts of laws.
7
Executed and effective as of this 1st day of May, 1997.
XXXXXX INC.
By /s/ X. Xxxxx Xxxxxxxxxx
Name: X. Xxxxx Xxxxxxxxxx
Title: Chairman, President and Chief
Executive Officer
Date:
INDEMNITEE:
By /s/ Xxxx X. XxxxxXxxxx
Name: Xxxx X. XxxxxXxxxx
Title:
Date:
8
