Exhibit 10.1
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (this "Agreement"), made as of
this __day of ___, ___, by and between Dover Investments
Corporation, a Delaware corporation (the "Company"), and [NAME OF
INDIVIDUAL] the "Indemnitee"), a [director] [and] [officer] of
the Company.
WHEREAS, the Indemnitee is currently serving [has agreed
to serve] as a [director] [and] [officer] of the Company and in
such capacity has rendered [will render] valuable services to
the Company;
WHEREAS, the Company has investigated the availability and
sufficiency of directors' and officers' liability insurance and
Delaware statutory indemnification provisions to provide its
directors and officers with adequate protection against various
legal risks and potential liabilities to which such individuals
are subject due to their positions with the Company and the
Company has concluded that such insurance and statutory provisions
may provide inadequate and unacceptable protection to certain
individuals requested to serve as its directors and officers; and
WHEREAS, in order to induce and encourage highly experienced
and capable persons such as the Indemnitee [to continue] to serve
as [directors] [and] [officers] of the Company, the Board of
Directors has determined, after due consideration and investigation
of the terms and provisions of this Agreement and the various other
alternatives available to the Company and the Indemnitee in lieu
hereof, that this Agreement is not only reasonable and prudent, but
necessary to promote and ensure the best interests of the Company
and its stockholders;
NOW, THEREFORE, in consideration of the premises and mutual
agreements hereinafter set forth, and other good and valuable
consideration, including, without limitation, the [continued] service
of the Indemnitee, the receipt of which hereby is acknowledged, and
in order to induce the Indemnitee [to continue] to serve as a
[director] [and] [officer] of the Company, the Company and the
Indemnitee hereby agree as follows:
1. Definitions. As used in this Agreement:
(a) "Change in Control" shall mean a change in control
of the Company of a nature that would be required to be reported in
response to Item 1(a) of Form 8-K (from and after August 23, 2004,
Item 5.01(a) of From 8-K) (or in response to any similar item on any
similar or successor form) promulgated under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated
thereunder (collectively, the "Act"), whether or not the Company is
then subject to such reporting requirement; provided, however, that,
without limitation, such a Change in Control shall be deemed to have
occurred (irrespective of the applicability of the initial clause of
this definition) if (i) any individual or entity or any group or
person (as such terms are used in Sections 13(d) and 14(d) of the
Act, but excluding any trustee or other fiduciary holding
securities pursuant to an employee benefit or welfare plan or
employee stock plan of the Company or any subsidiary of the
Company, or any entity organized, appointed, established or
holding securities of the Company with voting power for or
pursuant to the terms of any such plan) becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company representing a majority
of the combined voting power of the Company's then outstanding
securities; (ii) a merger or consolidation of the Company is
consummated, other than a merger of the Company in which the
holders of the Company's voting stock immediately prior to the
merger have the same proportionate ownership of such stock of
the surviving corporation immediately after such merger;
(iii) the Company sells, leases, exchanges or otherwise disposes
of all or substantially all of its assets or liquidates or
dissolves, (iv) during any period of two consecutive years,
individuals who at the beginning of such period constituted the
Board of Directors of the Company (including for this purpose
any new director whose election or nomination for election by
the Company's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who were
directors at the beginning of such period) (such directors being
referred to herein as "Continuing Directors") cease for any
reason to constitute at least a majority of the Board of
Directors of the Company; or (v) the Xxxxxxxxx Family (as
defined below) becomes, prior to April 15, 2005, the beneficial
owner of 90% or more of the outstanding shares of each of the
Class A Common Stock and the Class B Common Stock of the Company;
provided, however, that for purposes of this Agreement none of
the following shall be deemed a Change in Control: (A) any
acquisition (other than as a result of a transaction described
in clause (ii) or clause (v) above) of voting stock of the
Company, individually, indirectly or as a member of a group,
by The Xxxxxxxx Xxxxxxxxx Revocable Living Trust, the trustees
of such trust, The Xxxxxxxx Xxxxxxxxx Foundation or the
descendants of Xxxxxxxx Xxxxxxxxx (collectively, the "Xxxxxxxxx
Family"); or (B) any acquisition (other than as a result of a
transaction described in clause (ii) or clause (v) above) by
either (1) any corporation, partnership, limited liability
company, or other entity controlled, directly or indirectly,
by any of the Xxxxxxxxx Family or (2) any trust or foundation
to which any of the Xxxxxxxxx Family has transferred or may
transfer, shares of voting stock of the Company.
(b) "Disinterested Director" with respect to any
request by the Indemnitee for indemnification or advancement of
expenses hereunder shall mean a director of the Company who
neither is nor was a party to the Proceeding (as defined below)
in respect of which indemnification or advancement is being
sought by the Indemnitee.
(c) The term "Expenses" shall mean, without limitation,
expenses of Proceedings, including attorneys' fees, disbursements
and retainers, accounting and witness fees, expenses related to the
preparation or service as a witness, travel and deposition costs,
expenses of investigations, judicial or administrative proceedings
and appeals, amounts paid in settlement of a Proceeding by or on
behalf of the Indemnitee, costs of attachment or similar bonds,
any expenses of attempting to establish or establishing a right
to indemnification or advancement of expenses, under this Agreement,
the Company's Restated Certificate of Incorporation, as amended,
or Amended and Restated Bylaws, applicable law or otherwise, and
reasonable compensation for time spent by the Indemnitee in
connection with the investigation, defense or appeal of a Proceeding
or action for indemnification for which the Indemnitee is not
otherwise compensated by the Company or any third party. The term
"Expenses" shall not include the amount of judgments, fines,
interest or penalties, or excise taxes assessed with respect to
any employee benefit or welfare plan, which are actually levied
against or sustained by the Indemnitee to the extent sustained
after final adjudication.
(d) The term "Independent Legal Counsel" shall mean
any firm of attorneys selected by the Indemnitee from a list
consisting of firms which meet minimum size criteria and other
reasonable criteria established by the Board of Directors of the
Company, so long as such firm has not represented the Company, the
Indemnitee, any entity controlled by the Indemnitee, or any party
adverse to the Company, within the preceding five years.
Notwithstanding the foregoing, the term "Independent Legal Counsel"
shall not include any person who, under applicable standards of
professional conduct then prevailing, would have a conflict of
interest in representing either the Company or the Indemnitee in
an action to determine the Indemnitee's right to indemnification
or advancement of expenses under this Agreement, the Company's
Restated Certificate of Incorporation, as amended, or Amended
and Restated Bylaws, applicable law or otherwise.
(e) The term "Proceeding" shall mean any threatened,
pending or completed action, suit, arbitration, alternate dispute
resolution mechanism, or any other proceeding (including, without
limitation, an appeal therefrom), formal or informal, whether
brought in the name of the Company or otherwise, whether of a
civil, criminal, administrative or investigative nature, and
whether by, in or involving a court or an administrative, other
governmental or private entity or body (including, without
limitation, an investigation by the Company or its Board of
Directors), by reason of (i) the fact that the Indemnitee is or
was a [director] [or] [officer] of the Company, or is or was
serving at the request of the Company as an agent of another
enterprise, whether or not the Indemnitee is serving in such
capacity at the time any liability or expense is incurred for
which indemnification or reimbursement is to be provided under
this Agreement, (ii) any actual or alleged act or omission or
neglect or breach of duty, including, without limitation, any
actual or alleged error or misstatement or misleading statement,
which the Indemnitee commits or suffers while acting in any such
capacity, or (iii) the Indemnitee attempting to establish or
establishing a right to indemnification or advancement of expenses
pursuant to this Agreement, the Company's Restated Certificate of
Incorporation, as amended, or Amended and Restated Bylaws,
applicable law or otherwise.
(f) The phrase "serving at the request of the Company
as an agent of another enterprise" or any similar terminology
shall mean, unless the context otherwise requires, (i) serving at
the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, limited
liability company, trust, employee benefit or welfare plan or
other enterprise, foreign or domestic, and (ii) serving as a
director, officer, employee or agent of a corporation which was a
predecessor corporation of the Company or of another enterprise
at the request of such predecessor corporation. The phrase
"serving at the request of the Company" shall include, without
limitation, any service as a [director] [or] [officer] of the
Company which imposes duties on, or involves services by, such
[director] [or] [officer] with respect to the Company or any of
the Company's subsidiaries, affiliates, employee benefit or
welfare plans, such plan's participants or beneficiaries or any
other enterprise, foreign or domestic. In the event that the
Indemnitee shall be a director, officer, employee or agent of
another corporation, partnership, joint venture, limited
liability company, trust, employee benefit or welfare plan or
other enterprise, foreign or domestic, a majority of the common
stock, combined voting power or total equity interest of which
is owned by the Company or any subsidiary or affiliate thereof,
then it shall be presumed conclusively that the Indemnitee is
so acting at the request of the Company.
2. Services by the Indemnitee. The Indemnitee agrees
[to continue] to serve as a [director] [and] [officer] of the
Company [at the will of the Company] [under the terms of the
Indemnitee's agreement with the Company] for so long as the
Indemnitee is duly elected and qualified, appointed or until
Such time as the Indemnitee tenders a resignation in writing
or is removed as a [director] [or] [officer]; provided, however,
that the Indemnitee may at any time and for any reason resign
from [either or both of] such position[s] (subject to any
other contractual obligation or other obligation imposed by
operation of law).
3. Proceeding Other Than a Proceeding By or In the
Right of the Company. The Company shall indemnify the Indemnitee
if the Indemnitee is a party to or threatened to be made a party
to or is otherwise involved in any Proceeding (other than a
Proceeding by or in the right of the Company to procure a judgment
in its favor), by reason of the fact that the Indemnitee is or
was a [director] [or] [officer] of the Company, or is or was
serving at the request of the Company as an agent of another
enterprise, against all Expenses, judgments, fines, interest or
penalties, and excise taxes assessed with respect to any employee
benefit or welfare plan, which are actually and reasonably
incurred by the Indemnitee in connection with such a Proceeding,
to the fullest extent permitted by applicable law; provided,
however, that any settlement of a Proceeding must be approved
in advance in writing by the Company.
4. Proceedings By or In the Right of the Company.
The Company shall indemnify the Indemnitee if the Indemnitee is
a party to or threatened to be made a party to or is otherwise
involved in any Proceeding by or in the right of the Company
to procure a judgment in its favor by reason of the fact that
the Indemnitee is or was a [director] [or] [officer] of the
Company, or is or was serving at the request of the Company
as an agent of another enterprise, against all Expenses,
judgments, fines, interest or penalties, and excise taxes
assessed with respect to any employee benefit or welfare
plan, which are actually incurred by the Indemnitee in
connection with the defense or settlement of such a
Proceeding, to the fullest extent permitted by applicable law.
5. Indemnification for Costs, Charges and Expenses
of Witness or Successful Party. Notwithstanding any other
provision of this Agreement (except as set forth in subparagraph
9 (a) hereof), and without a requirement for determination as
required by Paragraph 8 hereof, to the extent that the
Indemnitee (a) has prepared to serve or has served as a witness
in any Proceeding in any way relating to (i) the Company or
any of the Company's subsidiaries, affiliates, employee benefit
or welfare plans, such plan's participants or beneficiaries or
any other enterprise, foreign or domestic, or (ii) anything done
or not done by the Indemnitee as a [director] [or] [officer] of
the Company, as a director, officer, employee or agent of
another corporation, partnership, joint venture, limited liability
company, trust, employee benefit or welfare plan or other
enterprise, foreign or domestic, or as a director, officer,
employee or agent of a corporation which was a predecessor
corporation of the Company or of another enterprise, at the
request of such predecessor corporation, or (b) has been
successful in defense of any Proceeding or in defense of any
claim, issue or matter therein, on the merits or otherwise,
including the dismissal of a Proceeding without prejudice or
the settlement of a Proceeding without an admission of liability,
the Indemnitee shall be indemnified against all Expenses
actually incurred by the Indemnitee in connection therewith to
the fullest extent permitted by applicable law.
6. Partial Indemnification. If the Indemnitee is
entitled under any provision of this Agreement to indemnification
by the Company for a portion of the Expenses, judgments, fines,
interest or penalties, or excise taxes assessed with respect to
any employee benefit or welfare plan, which are actually incurred
by the Indemnitee in the investigation, defense, appeal or
settlement of any Proceeding, but not, however, for the total
amount of the Indemnitee's Expenses, judgments, fines, interest
or penalties, or excise taxes assessed with respect to any
employee benefit or welfare plan, then the Company shall
nevertheless indemnify the Indemnitee for the portion of such
Expenses, judgments, fines, interest penalties or excise taxes
to which the Indemnitee is entitled.
7. Advancement of Expenses. The Expenses incurred
by the Indemnitee in any Proceeding shall be paid promptly by the
Company in advance of the final disposition of the Proceeding at
the written request of the Indemnitee to the fullest extent
permitted by applicable law; provided, however, that the
Indemnitee shall set forth in such request reasonable evidence
that such Expenses have been incurred by the Indemnitee in
connection with such Proceeding, a statement that such Expenses
do not relate to any matter described in subparagraph 9(a) of
this Agreement, and an undertaking in writing to repay any advances
if it is ultimately determined as provided in subparagraph 8(b) of
this Agreement that the Indemnitee is not entitled to
indemnification under this Agreement.
8. Indemnification Procedure; Determination of Right to
Indemnification.
(a) Promptly after receipt by the Indemnitee of
notice of the commencement of any Proceeding, the Indemnitee shall,
if a claim for indemnification or advancement of Expenses in respect
thereof is to be made against the Company under this Agreement,
notify the Company of the commencement thereof in writing. Such
notice shall be given to the secretary of the Company, who shall
promptly advise the Board of Directors of the Company of such
notification. The omission by the Indemnitee to so notify the
Company will not relieve the Company from any liability which the
Company may have to the Indemnitee under this Agreement, unless
the Company shall have lost significant substantive or procedural
rights with respect to the defense of any Proceeding as a result
of such omission to so notify.
(b) The Indemnitee shall be conclusively presumed
to have met the relevant standards of conduct, if any, as defined
by applicable law, for indemnification pursuant to this Agreement
and shall be absolutely entitled to such indemnification, unless
a determination by clear and convincing evidence is made that the
Indemnitee has not met such standards by (i) the Board of
Directors by a majority vote of the Disinterested Directors
(whether or not they constitute a quorum of the Board of Directors),
(ii) the stockholders of the Company by majority vote of a quorum
thereof consisting of stockholders who are not parties to the
Proceeding due to which a claim for indemnification is made under
this Agreement, (iii) Independent Legal Counsel as set forth in
a written opinion (it being understood that such Independent
Legal Counsel shall make such determination only if there are no
Disinterested Directors or if a majority the Disinterested
Directors so directs and that such Independent Legal Counsel
shall be selected by the Board of Directors and shall be
reasonably acceptable to the Indemnitee), or (iv) a court of
competent jurisdiction; provided, however, that if a Change in
Control shall have occurred and the Indemnitee so requests in
writing, such determination shall be made only by Independent
Legal Counsel or a court of competent jurisdiction, as requested
by the Indemnitee (it being understood that in such event the
Indemnitee shall select the court or any Independent Legal
Counsel).
(c) If either a claim for (x) advancement of
Expenses under this Agreement is not paid by the Company within 20
days after receipt by the Company of written notice thereof (together
with the undertaking required by Paragraph 7 hereof) or (y)
indemnification under this Agreement is not paid by the Company
within 30 days after receipt by the Company of written notice
thereof, regardless of the reasons for such failure, then the
Indemnitee shall be deemed to be, and shall be, entitled to
such advancement or indemnification, unless (A) the Indemnitee
misrepresented or failed to disclose a material fact in making
the request for advancement or indemnification or in any
supporting documentation or (B) such advancement or
indemnification is prohibited by law. In such event, or in
the event that a determination is made that the Indemnitee is
not entitled to such advancement or indemnification, then the
rights provided by this Agreement shall be enforceable by the
Indemnitee, at his [her] sole election, in any court of competent
jurisdiction or an arbitration to be conducted by a single
arbitrator pursuant to the Rules of the American Arbitration
Association. Such judicial proceeding or arbitration shall
be made de novo. The burden of proving by clear and convincing
evidence that advances or indemnification are not permitted under
this Agreement shall be on the Company. Neither the failure of
the directors or stockholders of the Company or Independent Legal
Counsel to have made a determination prior to the commencement
of such action that indemnification or advancement of Expenses
is proper in the circumstances because the Indemnitee has met
the applicable standard of conduct, if any, nor an actual
determination by the directors or stockholders of the Company
or Independent Legal Counsel that the Indemnitee has not met
the applicable standard of conduct shall be a defense to an
action or arbitration by the Indemnitee or create a presumption
for the purpose of such an action or arbitration that the
Indemnitee has not met the applicable standard of conduct or that
the Indemnitee otherwise is not entitled to such advancement or
indemnification. The termination of any Proceeding by judgment,
order, settlement or conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself (i) create a presumption
that the Indemnitee did not act in good faith and in a manner
which he [she] reasonably believed to be in the best interests
of the Company and/or its stockholders, and, with respect to
any criminal Proceeding, that the Indemnitee had reasonable cause
to believe that his [her] conduct was unlawful or (ii) otherwise
adversely affect the rights of the Indemnitee to indemnification
or advancement of Expenses under this Agreement, except as may be
provided herein. The Company shall be precluded from asserting
in any judicial proceeding or arbitration that the provisions,
procedures and presumptions of this Agreement are not legal,
valid, binding and enforceable and shall stipulate therein that
the Company is bound by all the provisions, procedures and
presumptions of this Agreement.
(d) The Indemnitee's Expenses incurred in
connection with any Proceeding concerning the Indemnitee's right
to indemnification or advancement of Expenses in whole or in part
pursuant to this Agreement shall also be indemnified by the Company,
regardless of the outcome of such a Proceeding, to the fullest
extent permitted by applicable law, the Company's Certificate of
Incorporation, as amended, and the Company's Bylaws, as amended.
In any event, if a court of competent jurisdiction or an arbitrator
shall determine that the Indemnitee is entitled to an advancement
of Expenses or indemnification hereunder, in whole or in part,
the Company shall pay promptly all Expenses actually incurred
by the Indemnitee in connection with such adjudication (including,
but not limited to, any appellate proceedings).
(e) With respect to any Proceeding for which
indemnification or advancement of Expenses is requested, the Company
will be entitled to participate therein at its own expense and,
except as otherwise provided below, to the extent that it may wish,
the Company may assume the defense thereof, with counsel reasonably
satisfactory to the Indemnitee. After notice from the Company to
the Indemnitee of its election to assume the defense of a Proceeding,
the Company will not be liable to the Indemnitee under this Agreement
for any Expenses subsequently incurred by the Indemnitee in connection
with the defense thereof, other than as provided below. The Company
shall not settle any Proceeding in any manner which would impose any
penalty or limitation on the Indemnitee without the Indemnitee's
written consent. The Indemnitee shall have the right to employ his
[her] own counsel in any Proceeding, but the fees and expenses of
such counsel incurred after notice from the Company of its
assumption of the defense of the Proceeding shall be at the expense
of the Indemnitee, unless (i) the employment of counsel by the
Indemnitee has been authorized by the Company, (ii) the Indemnitee
shall have reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee in the conduct
of the defense of a Proceeding, or (iii) the Company shall not in
fact have employed counsel to assume the defense of a proceeding,
in each of which cases the fees and expenses of the Indemnitee's
counsel shall be advanced by the Company. The Company shall not
be entitled to assume the defense of any Proceeding brought by
or on behalf of the Company or as to which the Indemnitee has
concluded that there may be a conflict of interest between the
Company and the Indemnitee.
9. Limitations on Indemnification. No payments pursuant
to this Agreement shall be made by the Company:
(a) To indemnify or advance funds to the Indemnitee
for Expenses with respect to (i) Proceedings initiated or brought
voluntarily by the Indemnitee and not by way of defense, except
with respect to Proceedings brought to establish or enforce a
right to indemnification under this Agreement or any other statute
or law or otherwise as required under applicable law or (ii)
Expenses incurred by the Indemnitee in connection with preparing
to serve or serving, prior to a Change in Control, as a witness
in cooperation with any party or entity who or which has
threatened or commenced any action or proceeding against the
Company, or any director, officer, employee, trustee, agent,
representative, subsidiary, parent corporation or affiliate of
the Company, but such indemnification or advancement of Expenses
in each such case may be provided by the Company if the Board
of Directors finds it to be appropriate;
(b) To indemnify the Indemnitee for any Expenses,
judgments, fines, interest or penalties, or excise taxes assessed
with respect to any employee benefit or welfare plan, and sustained
in any Proceeding for which payment is actually made to the
Indemnitee under a valid and collectible insurance policy, except
in respect of any excess beyond the amount of payment under
such insurance;
(c) To indemnify the Indemnitee for any Expenses,
judgments, fines, expenses or penalties sustained in any Proceeding
for an accounting of profits made from the purchase or sale by the
Indemnitee of securities of the Company pursuant to the provisions
of Section 16(b) of the Act or similar provisions of any federal,
state or local statute or regulation;
(d) To indemnify the Indemnitee for any Expenses,
judgments, fines, interest or penalties, or excise taxes assessed
with respect to any employee benefit or welfare plan, for which
the Indemnitee is indemnified by the Company otherwise than
pursuant to this Agreement;
(e) To indemnify the Indemnitee for any Expenses,
judgments, fines, interest or penalties, or excise taxes assessed
with respect to any employee benefit or welfare plan, on account
of the Indemnitee's conduct if such conduct shall be finally
adjudged to have been knowingly fraudulent, deliberately dishonest
or willful misconduct, including, without limitation, breach of
the duty of loyalty; or
(f) If a court of competent jurisdiction finally
determines that any indemnification hereunder is unlawful.
10. Continuation of Indemnification. All agreements
and obligations of the Company contained herein shall continue
during the period that the Indemnitee is a [director] [or]
[officer] of the Company (or is or was serving at the request of
the Company as an agent of another enterprise, foreign or domestic)
and shall continue thereafter so long as the Indemnitee shall be
subject to any possible Proceeding or liability as a result
thereof by reason of the fact that the Indemnitee was a [director]
[or] [officer] of the Company or serving in any other capacity
referred to in this Paragraph 10.
11. Indemnification Hereunder Not Exclusive. The
indemnification provided by this Agreement shall not be deemed to
be exclusive of any other rights to which the Indemnitee may be
entitled under the Company's Certificate of Incorporation, as
amended, the Company's Bylaws, as amended, any agreement, vote
of stockholders or vote of Disinterested Directors, provisions
of applicable law, or otherwise, both as to action or omission
in the Indemnitee's official capacity and as to action or
omission in another capacity on behalf of the Company while
holding such office.
12. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when one or
more counterparts have been signed by each party and delivered
to the other.
13. Successors and Assigns.
(a) This Agreement shall be binding upon, and shall
inure to the benefit of, the Indemnitee and the Indemnitee's
heirs, executors, administrators and assigns, whether or not the
Indemnitee has ceased to be a [director] [and/or] [officer], and
the Company and its successors and assigns. Upon the sale of all
or substantially all of the business, assets or capital stock of
the Company to, or the merger or consolidation of the Company into
or with, any corporation, partnership, joint venture, trust or
other person, or dissolution of the Company, this Agreement
shall inure to the benefit of and be binding upon both the
Indemnitee and such purchaser or successor person. Subject to
and except for the foregoing, this Agreement may not be assigned
by either party without the prior written consent of the other
party hereto and any such attempted assignment in violation of
this subparagraph 13(a) shall be null and void and of no force
or effect.
(b) If the Indemnitee is deceased and is entitled
to indemnification under any provision of this Agreement, the
Company shall indemnify the Indemnitee's estate and the
Indemnitee's spouse, heirs, executors, administrators and
assigns against, and the Company shall, and does hereby agree
to assume and reimburse, any and all Expenses actually incurred
by or for the Indemnitee or the Indemnitee's estate, in connection
with any Proceeding. Further, when requested in writing by the
spouse of the Indemnitee, and/or the Indemnitee's heirs,
executors, administrators and assigns, the Company shall provide
appropriate evidence of the Company's agreement set out herein
to indemnify the Indemnitee against and to itself assume and
reimburse such Expenses.
14. 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 the Indemnitee, who
shall execute all documents required and shall do all acts
that may be necessary to secure such rights and to enable the
Company effectively to bring suit to enforce such rights.
15. Severability. Each and every paragraph, sentence,
term and provision of this Agreement is separate and distinct so
that if any paragraph, sentence, term or provision thereof shall
be held to be invalid, unlawful or unenforceable for any reason,
such invalidity, unlawfulness or unenforceability shall not affect
the validity, unlawfulness or enforceability of any other
paragraph, sentence, term or provision hereof. To the extent
required, any paragraph, sentence, term or provision of this
Agreement may be modified by a court of competent jurisdiction
to preserve its validity and to provide the Indemnitee with the
broadest possible indemnification permitted under applicable law.
16. Savings Clause. If this Agreement or any paragraph,
sentence, term or provision hereof is invalidated or held
unenforceable on any ground by any court of competent jurisdiction,
the Company shall nevertheless indemnify the Indemnitee as to any
Expenses, judgments, fines, interest or penalties, or excise
taxes assessed with respect to any employee benefit or welfare
plan, which are incurred with respect to any Proceeding to the
fullest extent permitted by any (a) applicable paragraph,
sentence, term or provision of this Agreement that has not
been invalidated or (b) applicable provision of Delaware law.
17. Interpretation; Governing Law. This Agreement
shall be construed as a whole and in accordance with its fair
meaning. Headings are for convenience only and shall not be
used in construing meaning. This Agreement shall be governed
and interpreted in accordance with the laws of the State of
Delaware without regard to the conflict of laws principles
thereof.
18. Amendments. No amendment, waiver, modification,
termination or cancellation of this Agreement shall be effective
unless in writing signed by the party against whom enforcement
is sought. The indemnification rights afforded to the Indemnitee
hereby are contract rights and may not be diminished, eliminated
or otherwise affected by amendments to the Certificate of
Incorporation, Bylaws or by other agreements, including directors'
and officers' liability insurance policies, of the Company.
19. Notices. Any notice required to be given under this
Agreement shall be directed to Dover Investments Corporation,
000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: ________, and to the Indemnitee at ________ or to such
other address as either shall designate to the other in writing.
IN WITNESS WHEREOF, the parties have executed this
Indemnification Agreement as of the date first written above.
INDEMNITEE
Name:
DOVER INVESTMENTS CORPORATION.
By:
Name:
Title:
