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EXHIBIT 10.21
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of ____ __, 1999, between Cyrk,
Inc., a Delaware corporation (the "Company"), and _______________________ (the
"Director").
WHEREAS, the Director serves as a member of the Company's Board of
Directors (the "Board") [and as an officer of the Company], and the Company
wishes to provide him with the indemnification arrangements set forth herein;
and
WHEREAS, the Director is willing to serve and continue to serve as a
director [and officer] of the Company;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. INDEMNITY. The Company hereby agrees to hold harmless and
indemnify the Director with respect to his service on, and any matter or
transaction considered by, the Board, and with respect to his service as an
officer of the Company, to the full extent authorized or permitted by law, as
such may be amended from time to time, and Article Eighth of the Restated
Certification of Incorporation of the Company, as such may be amended. In
furtherance of the foregoing indemnification, and without limiting the
generality thereof:
(a) PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT
OF THE COMPANY. The Director shall be entitled to the rights of indemnification
provided in this Section 1(a) if, by reason of his Corporate Status (as
hereinafter defined), he is, or is threatened to be made, a party to or
participant in any Proceeding (as hereinafter defined) other than a Proceeding
by or in the right of the Company. Pursuant to this Section 1(a), the Director
shall be indemnified against all Expenses (as hereinafter defined), judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with such Proceeding or any claim, issue
or matter therein, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company and, with
respect to any criminal Proceeding, had no reasonable cause to believe his
conduct was unlawful.
(b) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The
Director shall be entitled to the rights of indemnification provided in this
Section 1(b) if, by reason of his Corporate Status, he is, or is threatened to
be made, a party to or participant in any Proceeding brought by or in the right
of the Company to procure a judgment in its favor. Pursuant to this Section
1(b), the Director shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection with such Proceeding
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company; provided, however, that, if
applicable law so provides, no indemnification against such Expenses shall be
made in respect of any claim, issue or matter in such Proceeding as to which the
Director
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shall have been finally adjudged to be liable to the Company unless and to the
extent that the Court of Chancery of the State of Delaware shall determine that
such indemnification may be made.
(c) INDEMNIFICATION FOR EXPENSES OF THE DIRECTOR WHERE HE
IS WHOLLY OR PARTLY SUCCESSFUL. Notwithstanding any other provision of this
Agreement, to the extent that the Director is, by reason of his Corporate
Status, a party to and is successful, on the merits or otherwise, in any
Proceeding, he shall be indemnified to the maximum extent permitted by law
against all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith. If the Director is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Company shall
indemnify the Director against all Expenses actually and reasonably incurred by
him or on his behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Section and without limitation, the (termination
of any claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
2. ADDITIONAL INDEMNITY. In addition to, and without regard to
any limitations on, the indemnification provided for in Section 1, the Company
shall and hereby does indemnify and hold harmless the Director against all
Expenses, judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by him or on his behalf if, by reason of his Corporate
Status he is, or is threatened to be made, a party to or participant in any
Proceeding (including a Proceeding by or in the light of the Company). The only
limitation that shall exist upon the Company's obligations pursuant to this
Agreement shall be that the Company shall not be obligated to make any payment
to the Director that is finally determined (under the procedures, and subject to
the presumptions, set forth in Sections 6 and 7 hereof) to be unlawful under
Delaware law.
3. CONTRIBUTION IN THE EVENT OF JOINT LIABILITY. (a) Whether or
not the indemnification provided in Sections 1 and 2 hereof is available, in
respect of any threatened, pending or completed action, suit or proceeding in
which Company is jointly liable with the Director (or would be jointly liable if
joined in such action, suit or proceeding), Company shall pay, in the first
instance, the entire amount of any judgment or settlement of such action, suit
or proceeding without requiring the Director to contribute to such payment and
the Company hereby waives and relinquishes any right of contribution it may have
against the Director. The Company shall not enter into any settlement of any
action, suit or proceeding in which the Company is jointly liable with the
Director (or would be jointly liable if joined in such action, suit or
proceeding) unless such settlement provides for a full and final release of all
claims asserted against the Director.
(b) Without diminishing or impairing the obligations of
the Company set forth in the preceding subparagraph, if, for any reason, the
Director shall elect or be required to pay all or any portion of any judgment or
settlement in any threatened, pending or completed
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action, suit or proceeding in which Company is jointly liable with the Director,
(or would be jointly liable if joined in such action, suit or proceeding), the
Company shall contribute to the amount of Expenses, judgments, fines and amounts
paid in settlement actually and reasonably incurred and paid or payable by the
Director in proportion to the relative benefits received by the Company and all
officers, directors or employees of the Company other than the Director who are
jointly liable with him (or would be jointly liable if joined in such action,
suit or proceeding), on the one hand, and the Director, on the other hand, from
the transaction from which such action, suit or proceeding arose; provided,
however, that the proportion determined on the basis of relative benefit may, to
the extent necessary to conform to law, be further adjusted by reference to the
relative fault of the Company and all officers, directors or employees of the
Company other than the Director who are jointly liable with the Director (or
would be jointly liable if joined in such action, suit or proceeding), on the
one hand, and the Director, on the other hand, in connection with the events
that resulted in such Expenses, judgments, fines or settlement amounts, as well
as any other equitable considerations which the law may require to be
considered. The relative fault of the Company and all officers, directors or
employees of the Company other than the Director who are jointly liable with him
(or would be jointly liable if joined in such action, suit or proceeding), on
the one hand, and the Director, on the other hand, shall be determined by
reference to, among other things, the degree to which their actions were
motivated by intent to gain personal profit or advantage, the degree to which
their liability is primary or secondary, and the degree to which their conduct
is active or passive.
(c) The Company hereby agrees to fully indemnify and hold
the Director harmless from any claims of contribution which may be brought by
officers, directors or employees of the Company who may be jointly liable with
the Director.
4. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any
other provision of this Agreement, to the extent that the Director is, by reason
of his Corporate Status, a witness in any Proceeding to which the Director is
not a party, he shall be indemnified against all Expenses actually and
reasonable incurred by him or on his behalf in connection therewith.
5. ADVANCEMENT OF EXPENSES. Notwithstanding any other provision
of this Agreement, the Company shall advance all reasonable Expenses incurred by
or on behalf of the Director in connection with any Proceeding by reason of the
Director's Corporate Status within 15 days after the receipt by the Company of a
statement or statements from the Director requesting such advance or advances
from time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the Expenses
incurred by the Director and shall include or be preceded or accompanied by an
undertaking by or on behalf of the Director to repay any Expenses advanced if it
shall ultimately be determined that the Director is not entitled to be
indemnified against such Expenses. Any advances and undertakings to repay
pursuant to this Section 5 shall be unsecured and interest free. Notwithstanding
the foregoing, the obligation of the Company to advance Expenses pursuant to
this Section 5 shall be subject to the condition that, if, when and to the
extent that the Company
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determines that the Director would not be permitted to be indemnified under
applicable law, the Company shall be entitled to be reimbursed, within 30 days
of such determination, by him for all such amounts theretofore paid; provided,
however, that if the Director has commenced or thereafter commences legal
proceedings in a court of competent jurisdiction to secure a determination that
he should be indemnified under applicable law, any determination made by the
Company that the Director would not be permitted to be indemnified under
applicable law shall not be binding and the Director shall not be required to
reimburse the Company for any advance of Expenses until a final judicial
determination is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed).
6. PROCEDURES AND PRESUMPTIONS FOR DETERMINATION OF ENTITLEMENT
TO INDEMNIFICATION. It is the intent of this Agreement to secure for the
Director rights of indemnity that are as favorable as may be permitted under the
law and public policy of the State of Delaware. Accordingly, the parties agree
that the following procedures and presumptions shall apply in the event of any
question as to whether the Director is entitled to indemnification under this
Agreement:
(a) To obtain indemnification (including, but not limited
to, the advancement of Expenses and contribution by the Company) under this
Agreement, the Director shall submit to the Company a written request, including
therein or therewith such documentation and information as is reasonably
available to the Director and is reasonably necessary to determine whether and
to what extent the Director is entitled to indemnification. The President, any
Vice President or the General Counsel of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board in writing that
the Director has requested indemnification.
(b) Upon written request by the Director for
indemnification pursuant to the first sentence of Section 6(a) hereof, a
determination, if required by applicable law, with respect to the Director's
entitlement thereto shall be made in the specific case by one of the following
three methods, which shall be at the election of the Director: (1) by a majority
vote of the disinterested directors, even though less than a quorum, or (2) by
independent legal counsel in a written opinion, or (3) by the stockholders.
(c) If the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 6(b)
hereof, the Independent Counsel shall be selected as provided in this Section
6(c). The Independent Counsel shall be selected by the Director (unless the
Director shall request that such selection be made by the Board). The Director
or the Company, as the case may be, may, within 10 days after such written
notice of selection shall have been given, deliver to the Company or to the
Director, as the case may be, a written objection to such selection; provided,
however, that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of "Independent
Counsel" as defined in Section 13(e) of this Agreement, and the objection shall
set forth with particularity the factual basis of such assertion. Absent a
proper and timely objection,
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the person so selected shall act as Independent counsel. If a written objection
is made and substantiated, the Independent Counsel selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a court has
determined that such objection is without merit. If, within 30 days after
submission by the Director of a written request for indemnification pursuant to
Section 6(a) hereof, no Independent Counsel shall have been selected and not
objected to, either the Company or the Director may petition the Court of
Chancery of the State of Delaware or other court of competent jurisdiction for
resolution of any objection which shall have been made by the Company or the
Director to the other's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the court or by such
other person as the court shall designate, and the person with respect to whom
all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 6(b) hereof. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to Section 6(b) hereof, and the
Company shall pay all reasonable fees and expenses incident to the procedures of
this Section 6(c), regardless of the manner in which such Independent Counsel
was selected or appointed.
(d) In making a determination with respect to entitlement
to indemnification hereunder, the person or persons or entity making such
determination shall presume (unless there is clear and convincing evidence to
the contrary) that the Director is entitled to indemnification under this
Agreement if the Director has submitted a request for indemnification in
accordance with Section 6(a) of this Agreement.
(e) The Director shall be deemed to have acted in good
faith if the Director's action is based on the records or books of account of
the Enterprise, including financial statements, or on information supplied to
the Director by the officers of the Enterprise in the course of their duties, or
on the advice of legal counsel for the Enterprise or on information or records
given or reports made to the Enterprise or the Board by an independent certified
public accountant, by a financial advisor or by an appraiser or other expert
selected with reasonable care by the Enterprise or the Board. In addition, the
knowledge and/or actions, or failure to act, of any director, officer, agent or
employee of the Enterprise shall not be imputed to the Director for purposes of
determining the right to indemnification under this Agreement. Whether or not
the foregoing provisions of this Section 6(e) are satisfied, it shall in any
event by presumed (unless there is clear and convincing evidence to the
contrary) that the Director has at all times acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company.
(f) The Company acknowledges that a settlement or other
disposition short of final judgment may be successful if it permits a party to
avoid expense, delay, distraction, disruption and uncertainty. In the event that
any action, claim or proceeding to which the Director is a party is resolved in
any manner other than by adverse judgment against the Director (including,
without limitation, settlement of such action, claim or proceeding with or
without payment of money or other consideration) it shall be presumed (unless
there is clear and
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convincing evidence to the contrary) that the Director has been successful on
the merits or otherwise in such action, suit or proceeding.
(g) If the person, persons, or entity empowered or
selected under Section 6(b) to determine whether the Director is entitled to
indemnification shall not have made a determination within 60 days after receipt
by the Company of the request therefor, the requisite determination of
entitlement to indemnification shall be deemed to have been made and the
Director shall be entitled to such indemnification, absent (i) a misstatement by
the Director of a material fact, or an omission of a material fact necessary to
make the Director's statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such 60 day period may be extended for a
reasonable time, not to exceed an additional 15 days, if the person, persons or
entity making the determination with respect to entitlement to indemnification
in good faith requires such additional time for the obtaining or evaluating
document and/or information relating thereto; provided, further, that the
foregoing provisions of this Section 6(g) shall not apply if the determination
of entitlement to indemnification is to be made by the stockholders pursuant to
Section 6(b) of this Agreement and if within 15 days after receipt by the
Company of the request for such determination the Board or the Disinterested
Directors, if appropriate, resolve to submit such determination to the
stockholders for their consideration at the next annual meeting thereof and such
determination is made thereat.
(h) The Director shall cooperate with the person, persons
or entity making such determination with respect to the Director's entitlement
to indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to the Director and reasonably necessary to such determination. Any
Independent Counsel, member of the Board or Directors, or stockholder of the
Company shall act reasonably and in good faith in making a determination under
the Agreement of the Director's entitlement to indemnification. Any costs or
expenses (including attorneys' fees and disbursements) incurred by the Director
in so cooperating with the person, persons or entity making such determination
shall be borne by the Company (irrespective of the determination as to the
Director's entitlement to indemnification) and the Company hereby indemnifies
and agrees to hold the Director harmless therefrom.
7. REMEDIES.
(a) In the event that (i) a determination is made
pursuant to Section 6 of this Agreement that the Director is not entitled to
indemnification under this Agreement, (ii) advancement of Expenses is not timely
made pursuant to Section 5 of this Agreement, (iii) no determination of
entitlement to indemnification shall have been made pursuant to Section 6(b) of
this Agreement within 90 days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to this
Agreement within ten days after receipt by the Company of a written request
therefor, or (v) payment of indemnification is not
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made within ten days after a determination has been made by the Director is
entitled to indemnification or such determination is deemed to have been made
pursuant to Section 6 of this Agreement and such matter has not been cured, the
Director shall be entitled to an adjudication in an appropriate court of the
State of Delaware, or in any other court of competent jurisdiction, of his
entitlement to such indemnification. The Director shall commence such proceeding
seeking an adjudication within 180 days following the date on which the Director
first has the right to commence such proceeding pursuant to this Section 7(a).
The Company shall not oppose the Director's right to seek any such adjudication.
(b) In the event that a determination shall have been
made pursuant to Section 6(b) of this Agreement that the Director is not
entitled to indemnification, any judicial proceeding commenced pursuant to this
Section 7 shall be conducted in all respects as a de novo trial, on the merits
and the Director shall not be prejudiced by reason of that adverse
determination.
(c) If a determination shall have been made pursuant to
Section 6(b) of this Agreement that the Director is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding
commenced pursuant to this Section 7, absent a prohibition of such
indemnification under applicable law.
(d) In the event that the Director, pursuant to this
Section 7, seeks a judicial adjudication of his right under, or to recover
damages for breach of, this Agreement, or to recover under any directors' and
officers' liability insurance policies maintained by the Company, the Company
shall pay on his behalf, in advance, any and all expenses (of the types
described in the definition of Expenses in Section 13 of this Agreement)
actually and reasonably incurred by him in such judicial adjudication,
regardless of whether the Director ultimately is determined to be entitled to
such indemnification, advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any
judicial proceeding commenced pursuant to this Section 7 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court that the Company is bound by all the provisions of
this Agreement.
8. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The rights of indemnification as provided by this
Agreement shall not be deemed exclusive of any other rights to which the
Director may at any time be entitled under applicable law, the Restated
Certificate of Incorporation of the Company, the Bylaws, any agreement, a vote
of stockholders or a resolution of directors, or otherwise. No amendment,
alteration or repeal of this Agreement or of any provision hereof shall limit or
restrict any right of the Director under this Agreement in respect of any action
taken or omitted by the Director in his Corporate Status prior to such
amendment, alteration or repeal. To the extent that a change in the
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law, whether by statute or judicial decision, permits greater indemnification
than would be afforded currently under the Restated Certificate of Incorporation
and this Agreement, it is the intent of the parties hereto that the Director
shall enjoy by this Agreement the greater benefits so afforded by such change.
No right or remedy herein conferred is intended to be exclusive of any other
right or remedy, and every other right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors, officers,
employees, or agents or fiduciaries of the Company or of any other corporation,
partnership, joint venture, trust employee benefit plan or other enterprise
which such person serves at the request of the Company, the Director 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 such director, officer,
employee or agent under such policy or policies.
(c) In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all the rights of
recovery of the Director, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement
to make any payment of amounts otherwise indemnifiable hereunder if and to the
extent that the Director has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.
9. EXCEPTION TO RIGHT OF INDEMNIFICATION. Notwithstanding any
other provision of this Agreement, the Director shall not be entitled to
indemnification under this Agreement with respect to any Proceeding brought by
him, or any claim therein, unless (a) the bringing of such Proceeding or making
of such claim shall have been approved by the Board or (b) such Proceeding is
being brought by the Director to assert his rights under this Agreement.
10. DURATION OF AGREEMENT. All agreements and obligations of the
Company contained herein shall continue during the period the Director is
serving as a member of the Board or as an officer of the Company (or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise)
and shall continue thereafter so long as the Director shall be subject to any
Proceeding (or any proceeding commenced under Section 6 hereof) by reason of his
Corporate Status, whether or not he is acting or serving in any such capacity at
the time any liability or expense is incurred for which indemnification can be
provided under this Agreement. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties
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hereto and their respective successors (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), assigns, spouses,
heirs, executors and personal and legal representatives. This Agreement shall
continue in effect regardless of whether the Director continues to serve as a
member of the Board or as an officer of the Company or any other enterprise at
the Company's request.
11. SECURITY. To the extent requested by the Director and approved
by the Board, the Company may at any time and from time to time provide security
to the Director for the Company's obligations hereunder through an irrevocable
bank line of credit, funded trust or other collateral. Any such security, once
provided to the Director, may not be revoked or released without the prior
written consent of the Director.
12. ENFORCEMENT.
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on it hereby in
order to induce the Director to continue to serve as a member of the Board, and
the Company acknowledges that the Director is relying upon this Agreement in
continuing his service as a member of the Board.
(b) This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral, written and implied,
between the parties hereto with respect to the subject matter hereof.
13. DEFINITIONS. For purposes of this Agreement:
(a) "Corporate Status" describes the status of a person
who is or was a member of the Board or an officer of the Company.
(b) "Disinterested Director" means a director of the
Company who (i) is not and was not a party to the Proceeding in respect of which
indemnification is sought by the Director and (ii) does not derive a personal or
financial benefit (other than as a shareholder) from the Proceeding in which
indemnification is sought.
(c) "Enterprise" shall mean the Company and any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise of which the Director is or was serving at the express written
request of the Company as a director, officer, employee, agent or fiduciary.
(d) "Expenses" shall include all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other
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disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating,
participating, or being or preparing to be a witness in a Proceeding.
(e) "Independent Counsel" means a law firm, or a member
of a law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to represent: (i)
the Company or the Director in any matter material to either such party (other
than with respect to matters concerning the Director under this Agreement), or
(ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term "Independent
Counsel" shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or the Director in an action to determine the
Director's rights under this Agreement. The Company agrees to pay the reasonable
fees of the Independent Counsel referred to above and to fully indemnify such
counsel against any and all Expenses, claims, liabilities and damages arising
out of or relating to this Agreement or its engagement pursuant hereto.
(f) "Proceeding" includes any threatened, pending or
completed action, suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened
or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in which
the Director was, is or will be involved as a party or otherwise, by reason of
the fact that the Director is or was a member of the Board or an officer of the
Company, by reason of any action taken by him or of any inaction on his part
while acting as a member of the Board, or by reason of the fact that he is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise; in each case whether or not he is acting or serving in any such
capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement; and excluding one
initiated by the Director pursuant to Section 6 of this Agreement to enforce his
rights under this Agreement.
14. SEVERABILITY. If any provision or provisions of this Agreement
Shall be held by a court of competent jurisdiction to be invalid, void, illegal
or otherwise unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including
without limitation, each portion of any section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law; and
(b) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested thereby.
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15. MODIFICATION AND WAIVER. No supplement, modification,
termination or amendment of this Agreement shall be binding unless executed in
writing by 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
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.
16. NOTICE BY DIRECTORS. The Director agrees promptly to notify
the Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification covered hereunder. The failure
to so notify the Company shall not relieve the Company of any obligation which
it may have to the Director under this Agreement or otherwise.
17. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by and receipted for by the party to whom said
notice or other communication shall have been directed (ii) sent by nationally
recognized overnight courier or if (iii) mailed by certified or registered mail
with postage prepaid, on the third business day after the date on which it is so
mailed:
(a) If to the Director, to:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
with a copy to:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
(b) If to the Company, to:
Cyrk, Inc.
0 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Corporate Secretary
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with a copy to
Cameron Read, Esq.
Xxxxxx, Xxxx & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
or to such other address as may have been furnished to the Director by the
Company or to the Company by the Director, as the case may be.
18. IDENTICAL COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
19. HEADINGS. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
20. GOVERNING LAW. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without application of the conflict of laws principles
thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CYRK, INC
By
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Name:
Title
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