1
EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of
_______________, 1999 (the "Effective Date"), between XxxxxxxXxxxx.Xxx, Inc., a
California corporation (the "Company"), and ______________ ("Indemnitee") with
reference to the following facts.
RECITALS:
A. Indemnitee currently is serving, or has previously served as an
officer and/or Director of the Company and the Company wishes Indemnitee to
continue in such capacities.
B. The Company's Articles of Incorporation provide that the
Directors of the Company shall be exempted from liability for monetary damages
shall be eliminated to the maximum extent permitted by law and that the Company
is authorized to enter into agreements to indemnify the officers, Directors and
agents of the Company with respect to matters not otherwise covered by the
indemnification provisions of the California General Corporation Law, as amended
(the "GCL").
C. Indemnitee has advised the Company that he does not regard the
indemnities available to him under the Company's Articles of Incorporation,
Bylaws and available insurance, as adequate to protect him against the risks
associated with his performance of services as an officer and/or Director of the
Company. Indemnitee is not willing to serve as an officer and/or Director of the
Company in the absence of the benefits accorded to him under this Agreement.
D. The parties desire to enter into this Agreement to provide that
the Company will indemnify Indemnitee to the maximum extent permitted by law
against all costs, expenses and liabilities that might arise by reason of his
performance of services as an officer, Director, employee or agent of the
Company.
AGREEMENTS:
NOW, THEREFORE, in consideration of the Recitals and of Indemnitee's
past and continued services, and intending to be legally bound, the Company
hereby agrees for the benefit of Indemnitee as follows:
1. DEFINITIONS. The following terms shall have the following
meanings unless otherwise clearly required by the context in which used.
1.1 "EXPENSES" shall mean and include, without limitation, all
costs, expenses (including attorneys' fees), liabilities, losses, fines, ERISA
excise taxes and penalties, amounts paid or to be paid in settlement or
satisfaction of any judgment, all interest, assessments and other charges
imposed thereon, and all federal, state, local and foreign taxes imposed on
Indemnitee as a result of the actual or deemed receipt of any payments under
this Agreement, paid or incurred by or on behalf of Indemnitee in connection
with the investigation, defense, settlement, appeal, being a witness in,
participating in, or preparing for any of the foregoing in or with respect to
any Proceeding or in or with respect to any action for indemnification, whether
under this Agreement or otherwise, with respect to any Proceeding.
1
2
1.2 "PROCEEDING" shall mean and include any threatened, pending or
completed claim, action, suit or proceeding, formal or informal, whether civil,
criminal, administrative or investigative, including, but not limited to, any
claim, action, suit or proceeding initiated by or on behalf of the Company,
brought or initiated by reason of the fact that the Indemnitee is or was an
officer, Director, employee or agent of the Company, or is or was serving at the
request of the Company as an officer, Director, employee or agent of an
Affiliated 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.
1.3 "AFFILIATED ENTERPRISE" shall mean and include any corporation
other than the Company, partnership, joint venture, trust or other enterprise
for which Indemnitee was serving as an officer, Director, employee or agent at
the request of the Company.
2. AGREEMENT TO SERVE. Indemnitee agrees to serve as an officer and
Director of the Company for so long as Indemnitee is duly elected or appointed
to such position and until such time as Indemnitee tenders Indemnitee's
resignation in writing or is removed as an officer or Director of the Company.
Nothing in this Agreement shall obligate the Company, or any of its
shareholders, officers or Directors, to elect or cause Indemnitee to be elected,
to serve as an executive officer or Director of the Company or shall interfere
in any way with the right of the Company and its shareholders, officers and
Directors to terminate Indemnitee's status as an executive officer or Director
at any time. Indemnitee's resignation as an officer or Director of the Company,
regardless of the reason for such resignation, shall not be deemed to be a
breach of this Agreement or limit in any way Indemnitee's right to
indemnification under this Agreement.
3. INDEMNIFICATION.
3.1 INDEMNIFICATION. Subject to the limitations and restrictions of
this Agreement, if Indemnitee is or becomes a party to, or is threatened to be
made a party to, a Proceeding by reason of (a) the fact that Indemnitee is, was,
becomes or ceases to be an officer, Director, employee or agent of the Company
or an Affiliated Enterprise or (b) any act or omission, or alleged act or
omission, of Indemnitee while an officer, Director, employee or agent of the
Company or an Affiliated Enterprise, the Company shall indemnify and hold
Indemnitee harmless from and against all Expenses incurred by or on behalf of
Indemnitee in connection with the investigation, defense and settlement of such
Proceeding and the satisfaction of any judgment entered against Indemnitee in
such Proceeding; provided that the Company shall have no obligation to pay or
reimburse Indemnitee for any amount paid or payable in settlement of any
Proceeding unless such settlement has been approved in writing by the Company.
Subject to the limitations of SECTION 3.2 hereof, the indemnification authorized
by this SECTION shall include the Company's indemnification of Indemnitee
against all Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding initiated by or on behalf of the Company and alleging that
Indemnitee breached any duty as an officer, Director, employee or agent of the
Company to the Company or any of its shareholders.
3.2 LIMITATION. Notwithstanding anything in this Agreement to the
contrary, the Company shall not be obligated under this Agreement to indemnify
Indemnitee against any of the following:
2
3
(a) Any Expenses for which payment is actually made to or on
behalf of Indemnitee under a valid and collectible insurance policy,
except that the Company shall indemnify Indemnitee for all Expenses of
the type covered by such insurance policy but which are not paid under
such policy, whether by reason of the financial limits of liability of
the policy or otherwise;
(b) Any Expenses for which Indemnitee is indemnified by and
receives payment from the Company otherwise than pursuant to this
Agreement;
(c) Any Expenses for which payment is actually made to or on
behalf of Indemnitee by any person other than the Company or with
respect to any insurance policy described in clause (a) above;
(d) Any Expenses incurred by Indemnitee with respect to any
Proceeding relating to a transaction or action from which Indemnitee in
fact received, by reason his being an officer, Director, employee or
agent of the Company, any personal profit or advantage to which he was
not legally entitled; except that the Company shall indemnify Indemnitee
with respect to all such Expenses if Indemnitee ultimately prevails with
respect to such Proceeding; and provided that such Expenses may be
provided or advanced by the Company in specific cases if the Board of
Directors has determined that it is more likely than not that Indemnitee
ultimately will prevail in such Proceeding;
(e) Any Expenses incurred by Indemnitee with respect to any
Proceeding for an accounting of profits made from the purchase and sale
by Indemnitee of securities of the Company subject to the provisions of
SECTION 16(b) of the Securities Exchange Act of 1934, as amended, or
similar provisions of any state statutory law or common law; except that
the Company shall indemnify Indemnitee with respect to all such Expenses
if Indemnitee ultimately prevails with respect to such Proceeding;
(f) Any Expenses incurred by Indemnitee with respect to any
Proceeding regarding any acts, omissions or transactions, or alleged
acts, omissions or transactions, involving Indemnitee and with respect
to which a Director may not be relieved of liability by reason of
SECTION 204(a)(10) of the GCL or as to circumstances in which
indemnification of an officer, Director, employee or agent of the
Company is expressly prohibited by SECTION 317 of the GCL;
(g) Any Expenses incurred by Indemnitee with respect to any
Proceeding initiated or brought voluntarily by Indemnitee and not by way
of defense, except with respect to any Proceeding brought to establish
or enforce a right to indemnification under this Agreement or the GCL or
any other statute, law or agreement or otherwise; provided that such
Expenses may be provided or advanced by the Company in specific cases if
the Board of Directors has approved the initiation or bringing of such
Proceeding; and
(h) If a court of competent jurisdiction finally determines
that any indemnification under this Agreement is unlawful.
3.3 INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding
anything in this Agreement to the contrary, to the extent that Indemnitee is
successful in defense of any Proceeding or in
3
4
defense of any claim, issue or matter raised in any proceeding, whether on the
merits or otherwise, including the dismissal of a Proceeding without prejudice
or the settlement of a Proceeding without an admission of liability by
Indemnitee, the Company shall indemnify Indemnitee against all Expenses incurred
in connection with such Proceeding, claim, issue or matter.
4. INDEMNIFICATION PROCEDURE.
4.1 NOTICE/COOPERATION. Indemnitee shall give the Company written
notice as soon as practicable of any claim made against him for which
indemnification will or could be sought by him under this Agreement; provided
that Indemnitee's delay in notifying the Company shall not limit in any way his
right to indemnification under this Agreement unless such delay materially
adversely affects the ability of Indemnitee or the Company to defend against
such claim or the availability of insurance coverage otherwise available to
Indemnitee or the Company.
4.2 NOTICE TO INSURERS. If, at the time of its receipt of a notice
of claim pursuant to SECTION 4.1 hereof, the Company has in effect liability
insurance applicable or potentially applicable to such claim, the Company shall
give prompt notice of the commencement of such Proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company
thereafter shall take all necessary or desirable action to cause such insurers
to pay, on behalf of Indemnitee, all amounts payable as a result of or with
respect to such Proceeding in accordance with the terms of such policies.
4.3 ADVANCEMENT OF EXPENSES. The Company shall advance all Expenses
incurred by Indemnitee in connection with the investigation, defense, settlement
or appeal of any Proceeding described in SECTION 3.1 hereof. Indemnitee hereby
undertakes to repay all amounts that are advanced to him by the Company only if,
and to the extent that, it shall ultimately be determined by a court of
competent jurisdiction that Indemnitee is not entitled to be indemnified by the
Company under this Agreement or otherwise with respect to such Expenses. The
advances to be made hereunder shall be paid by the Company to Indemnitee within
twenty (20) days following Indemnitee's delivery to the Company of a written
request therefor. For purposes of this Agreement, Indemnitee shall be deemed to
have incurred any Expense at the time that Indemnitee either receives an invoice
or statement requesting payment of such amount or otherwise becomes obligated to
pay such amount. It is not and shall not be a condition precedent to
Indemnitee's right to receive payment of any amount under this Agreement that
Indemnitee shall have first paid such amount. Notwithstanding the foregoing or
any other provision of this Agreement to the contrary, the Company shall not be
obligated to make any advance to Indemnitee under this Agreement if a
determination is reasonably and promptly made by the Board of Directors, (a)
that Indemnitee acted in bad faith or deliberately breached his duty to the
Company or its shareholders, and (b) as a result of such actions by Indemnitee,
it is more likely than not that it will ultimately be determined that Indemnitee
is not entitled to indemnification under this Agreement; provided that any such
determination shall not limit in any way the Company's obligation to indemnify
Indemnitee if Indemnitee ultimately prevails in any such Proceeding.
4.4 SELECTION OF COUNSEL. In the event the Company pays the Expenses
of any Proceeding against Indemnitee, the Company shall be entitled to assume
the defense of such Proceeding, with counsel approved by Indemnitee, which
approval shall not be unreasonably withheld, upon the delivery to Indemnitee of
written notice of its election to do so. After the Company's assumption of such
defense, the Company shall not be liable to Indemnitee under this Agreement for
any fees or expenses of counsel
4
5
subsequently incurred by Indemnitee with respect to the same Proceeding;
provided that (a) Indemnitee shall have the right to employ his own counsel in
any such Proceeding at Indemnitee's expense; and (b) if Indemnitee shall have
reasonably concluded that there may be a conflict of interest by reason of the
representation in such Proceeding of Indemnitee and the Company and/or any other
defendants by the same counsel, then Indemnitee may retain his own counsel with
respect to such Proceeding and the fees and expenses of such counsel shall be
Expenses for which Indemnitee is entitled to indemnification from the Company
subject to the terms and conditions of this Agreement. 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 Company shall
not be entitled to assume the defense of any Proceeding brought by or on behalf
of the Company.
5. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.
5.1 SCOPE. The parties intend by this Agreement that the Company
shall, to the fullest extent presently or hereafter permitted by law, indemnify
and hold Indemnitee harmless from and against all Expenses arising from or
relating to his acts and omissions, and alleged acts and omissions, as an
officer, Director, employee or agent of the Company. In the event of any change,
after the date of this Agreement, in any applicable law, statute or rule which
expands the right of a California corporation to indemnify an officer, Director,
employee or other agent, this Agreement automatically shall be amended as of the
effective date of such change to incorporate such expanded right and, from and
after such effective date, the Company shall be obligated to indemnify
Indemnitee to the maximum extent of such expanded right. In the event of any
change, after the date of this Agreement, in any applicable law, statute or rule
which narrows the right of a California corporation to indemnify an officer,
Director, employee or agent, such change, except to the minimum extent required
by such law, statute or rule, shall have no effect on this Agreement or the
parties' rights and obligations hereunder. As soon as practicable after the
effective date of any such change in any such applicable law, statute or rule,
the Company and Indemnitee shall prepare and execute a written amendment to this
Agreement memorializing the effect of such change; provided that any delay in
the preparation or execution of such written amendment shall not delay the date
on which this Agreement is deemed amended to incorporate the effect of such
change.
5.2 NONEXCLUSIVITY. The indemnification provided by this Agreement
shall not be deemed exclusive of any rights to which Indemnitee may be entitled
under the Company's Articles of Incorporation or its Bylaws, any other agreement
to which Indemnitee is a party, any right granted to Indemnitee, either
individually or as a member of a group of officers, Directors, employees or
agents of the Company, by reason of any vote of shareholders or disinterested
Directors of the Company, the GCL, or otherwise.
6. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of the
Expenses incurred by him with respect to any Proceeding, but not for the total
amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion of such Expenses to which Indemnitee is entitled.
7. INCURRENCE OF EXPENSES. No Expenses for which indemnity shall be sought
hereunder shall be incurred without the Company's consent, which consent shall
not be unreasonably withheld. The Company may consent, prior to Indemnitee
incurring any Expense, generally (a) to his incurring Expenses likely to be
incurred with respect to any Proceeding, (b) to his incurring all Expenses of a
general type or description with respect to any Proceeding, and (c) to his
obtaining the Company's consent to his incurring
5
6
any Expenses on such other expedited basis as the Company may deem appropriate
so as to facilitate the investigation, defense or settlement of any Proceeding.
8. SUBROGATION. In the event the Company makes any payment to Indemnitee
under this Agreement, (a) the Company shall be subrogated to the extent of such
payment to all of the rights of recovery of Indemnitee from any co-defendant,
insurer or other person and (b) Indemnitee shall execute all papers requested by
the Company and shall do such other things as the Company may request for the
purpose of securing such rights for the benefit of the Company, including the
execution of such documents as may be necessary to enable the Company to bring
suit to enforce such rights. The Company shall be solely responsible for
securing such subrogation rights for its benefit and Indemnitee shall have no
liability to the Company solely by reason of the Company's failure or inability
either to secure such subrogation rights or to recover any amounts from any
co-defendant of Indemnitee, any insurer, or any other person.
9. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge
that in certain instances federal or state law and/or applicable public policy
may prohibit the Company from indemnifying its officers, Directors, employees
and agents, including Indemnitee, under this Agreement or otherwise. Indemnitee
understands and acknowledges that the Company has undertaken or may be required
in the future to undertake with the Securities and Exchange Commission and/or
the securities agency of any state that in certain circumstances the Company
will submit for determination by a court the question of the Company's right to
indemnify Indemnitee with respect to a claim of the violation of applicable
securities laws. If the Company's indemnification obligation under this
Agreement is subject to the limitations of any federal or state law or
applicable public policy that prohibits the Company's indemnification of its
officers, Directors, employees or agents, or any group of them, the Company
shall have no liability to Indemnitee solely by reason of its failure or refusal
to indemnify Indemnitee as a result of the application of such law or public
policy.
10. DIRECTORS' AND OFFICERS' LIABILITY INSURANCE. The Company shall use
its best efforts to obtain and maintain in effect during the entire period for
which the Company is obligated to indemnify Indemnitee under this Agreement, one
or more policies of insurance with reputable insurance companies to provide
Indemnitee and other similarly situated officers, Directors, employees and
agents of the Company with coverage for losses from wrongful acts and omissions
and to ensure the Company's performance of its indemnification obligations under
this Agreement. In all policies of Directors' and officers' liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee with the same rights and benefits as are accorded to the most
favorably insured of the Company's Directors, if Indemnitee is a Director, or of
the Company's officers, if Indemnitee is not a Director but is an officer, or of
the Company's key employees, if Indemnitee is not an officer or Director but is
an employee. Notwithstanding the foregoing, the Company shall have no obligation
to obtain or maintain such insurance if the Company determines in good faith
that such insurance is not reasonably available, if the premium costs for such
insurance are disproportionate to the amount of coverage provided, if the
coverage provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, or if Indemnitee is covered by similar insurance
maintained by a subsidiary or parent of the Company or an Affiliated Enterprise.
11. SETTLEMENT. Neither party shall settle any Proceeding with respect
to which the Company is obligated to indemnify Indemnitee under this Agreement
without the prior written consent of the other party, which consent shall not be
unreasonably withheld; provided that neither party shall be obligated to
6
7
consent to any settlement if as a result of such settlement the party is
obligated to admit culpability for any criminal act.
12. ACTION BY BOARD OF DIRECTORS. Any action taken or determination made
by the Board of Directors under or with respect to this Agreement must be
approved by a majority vote of a quorum of disinterested Directors of the
Company; provided that (if such a quorum is not obtainable or, even if
obtainable, a quorum of disinterested Directors so directs) any such action or
determination may be approved by independent legal counsel duly appointed by the
affirmative vote of a majority of a quorum of disinterested Directors.
13. LIMITATIONS PERIOD. Notwithstanding anything in this Agreement or in
any applicable law to the contrary, any claim or action by or on behalf of the
Company against Indemnitee based on Indemnitee's action or omission in
Indemnitee's capacity as an officer, Director, employee or agent of the Company
must be initiated against Indemnitee within the earlier of (a) three (3) years
after the occurrence of the alleged act or omission and (b) two (2) years after
the discovery by the Company or anyone having the right to maintain the claim or
action on behalf of the Company of the facts constituting the alleged act or
omission. For purposes of this SECTION, (i) a claim or action shall be deemed to
be initiated against Indemnitee on the date on which written notice of such
claim or action (which notice shall specify in reasonable detail the alleged
acts or omissions on which the claim or action is based) is delivered to
Indemnitee by or on behalf of the Company in accordance with the terms of this
Agreement and (ii) the date on which the Company or anyone having the right to
maintain the claim or action on behalf of the Company discovered the facts
constituting the alleged act or omission shall be determined in accordance with
the provisions of SECTION 25506 of the GCL.
14. MISCELLANEOUS PROVISIONS
14.1 SEVERABILITY. Nothing in this Agreement is intended to require
or shall be construed as requiring the Company to take any actions, or to
refrain from taking any actions, in violation of applicable law. The Company's
inability to perform any of its obligations under this Agreement by reason of
any prohibitions or limitations imposed by federal or state law, applicable
public policy, or court order, shall not constitute a breach of this Agreement.
If this Agreement or any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the Company shall nevertheless
indemnify Indemnitee to the fullest extent permitted by any applicable portion
of this Agreement that shall not have been invalidated and the balance of this
Agreement not so invalidated shall be enforceable in accordance with its terms.
If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable for any reason whatsoever, the enforceability of the remaining
provisions of this Agreement shall in no way be affected or impaired thereby.
14.2 EFFECTIVENESS OF AGREEMENT.
(a) This Agreement shall be effective as of the Effective Date,
regardless of the date on which the Agreement is executed, and shall
apply to all Proceedings against or involving Indemnitee that are
threatened or pending as of the Effective Date or are initiated on or
after the Effective Date, regardless of whether the underlying facts
relating to Indemnitee occurred before, on or after the Effective Date.
If this Agreement is first executed after the termination of
Indemnitee's status as an officer, Director, employee or agent of the
Company, it shall be
7
8
effective from the first date on which Indemnitee was an officer,
Director, employee or agent of the Company.
(b) Indemnitee's right to indemnification under this
Agreement shall continue in effect after Indemnitee ceases to be, for
whatever reason, an officer, Director, employee or agent of the Company
and for so long as Indemnitee might be made a party to any Proceeding
described in this Agreement and with respect to which Indemnitee would
or might be entitled to indemnification under this Agreement if
Indemnitee was then an officer, Director, employee or agent of the
Company.
14.3 EMPLOYEE BENEFIT PLANS. For purposes of this Agreement, (a)
references to Affiliated Enterprises shall include employee benefit plans; (b)
references to "fines" shall include any excise taxes assessed on or against
Indemnitee with respect to an employee benefit plan; (c) references to "serving
at the request of the Company" shall include any service as a Director, officer,
employee or agent of the Company which imposes duties on, or involves services
by, such Director, officer, employee or agent with respect to an employee
benefit plan, its participants, or beneficiaries; and (d) the term "ERISA" means
the Employee Retirement Income Security Act of 1974, as amended.
14.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
14.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, legal representatives and assigns.
14.6 ATTORNEYS' FEES. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all costs and expenses, including
reasonable attorneys' fees and expenses, incurred by Indemnitee with respect to
such action, unless as a part of such action, a court of competent jurisdiction
determines that the material assertions made by Indemnitee as a basis for such
action were not made in good faith or were frivolous. In the event of an action
instituted by or in the name of the Company under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be entitled to be
paid all costs and expenses, including reasonable attorneys' fees and expenses,
incurred by Indemnitee in defense of such action (including costs, expenses and
attorneys' fees incurred by Indemnitee with respect to Indemnitee's
counterclaims and cross-claims made in such action), unless as a part of such
action the court determines that each of Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
14.7 NOTICE. All notices or other written communications required or
permitted to be transmitted to any party under this Agreement shall be
personally delivered to such party or mailed, postage prepaid by registered or
certified mail, or sent by facsimile or other form of electronic transmission
addressed to such party at the address set forth by the party's signature to
this Agreement or such other address as hereafter may be given for purposes of
such notice. Any notice or other written communication sent in accordance with
the foregoing shall conclusively be deemed to have been received at the time of
delivery, if personally delivered, or five (5) business days after the date of
mailing, if mailed, or two (2) business days after transmission if sent by
facsimile or other form of electronic transmission.
8
9
14.8 CHOICE OF LAW. This Agreement shall be governed by and its
provisions construed in accordance with the laws of the State of California as
applied to contracts between California residents entered into and to be
performed entirely within California.
14.9 INTERPRETATION.
(a) Indemnitee has been advised to seek independent legal counsel
with respect to the negotiation, preparation and execution of this
Agreement and the agreements contemplated herein. Therefore, the rule of
construction that an agreement shall be interpreted against the drafting
party shall not apply.
(b) All pronouns and any variation thereof shall be deemed to
refer to the masculine, feminine, or neutral and to the singular or
plural, as the identity of the person or persons may require for proper
interpretation of this Agreement. The words "herein" and "hereunder" and
other words of similar report refer to this Agreement as a whole and not
to any particular Article, section, subsection, paragraph, subparagraph
or other subdivision of this Agreement.
14.10 THIRD PARTY BENEFIT. The parties do not intend to confer any
benefit on any person, firm, corporation, entity or individual other than the
parties to this Agreement by reason, directly or indirectly, of the parties'
execution and delivery of this Agreement, including all Exhibits to this
Agreement, and any related documents, schedules, certificates and opinions.
IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date and year first above written.
"COMPANY": "INDEMNITEE":
XXXXXXXXXXXX.XXX, INC.
By:
-------------------------------- -------------------------------------
By:
-------------------------------- ADDRESS OF INDEMNITEE:
ADDRESS OF THE COMPANY: -------------------------------------
XxxxxxxXxxxx.Xxx, Inc. -------------------------------------
000x Xxxxx Xxxx, Xxxxx ____
Xxxxxxxxx, XX 00000 -------------------------------------
Attn: President
Facsimile No. (805)
---------------
9