This Indemnification Agreement (this "Agreement") is dated as of [DATE] between [COMPANY NAME], a [COMPANY STATE] [COMPANY CORPORATE STATUS] (the "Company"), and [INDEMNITEE] ("Indemnitee") (collectively, "Parties").
Indemnitee's service to the Company substantially benefits the Company.
Individuals are reluctant to serve as directors or officers of corporations or in certain other capacities unless they are provided with adequate protection through insurance or indemnification against the risks of claims and actions against them arising out of such service.
Indemnitee does not regard the protection currently provided by applicable law, the Company's governing documents and any insurance as adequate under the present circumstances, and Indemnitee may not be willing to serve as a director or officer without additional protection.
In order to induce Indemnitee to continue to provide services to the Company, it is reasonable, prudent and necessary for the Company to contractually obligate itself to indemnify, and to advance expenses on behalf of, Indemnitee as permitted by applicable law.
This Agreement is a supplement to and in furtherance of the indemnification provided in the Company's certificate of incorporation and bylaws, and any adopted resolutions.
This Agreement shall not be deemed a substitute, nor shall this Agreement be deemed to limit, diminish or abrogate any rights of Indemnitee under the Company's certificate of incorporation and bylaws, and any adopted resolutions.
The Parties agree as follows:
1.1 A "Change in Control" shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following events:
(a) Acquisition of Stock by Third Party. Any Person is or becomes the owner, directly or indirectly, of securities of the Company representing [fifteen percent (15%)] or more of the combined voting power of the Company's then outstanding securities;
(b) Change in Board Composition. During any period of two consecutive years (not including any period before the execution of this Agreement), individuals who at the beginning of such period constitute the Company's board of directors, and any new directors (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in the Change in Control definition) whose election by the board of directors or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Company's board of directors;
(c) Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately before such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;
(d) Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets; and
(e) Person. "Person" shall exclude (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.
1.2 "Corporate Status" describes the status of a person who is or was a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of the Company or any other Enterprise.
1.3 "Disinterested Director" means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
1.4 "Enterprise" means the Company and any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary.
1.5 "Expenses" include all reasonable attorneys' fees, retainers, court costs, transcript costs, fees and costs of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred related to prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also include
(a) Expenses incurred related to any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedes bond or other appeal bond or their equivalent, and
(b) Expenses incurred by Indemnitee related to the interpretation, enforcement or defense of Indemnitee's rights under this Agreement or under any directors' and officers' liability insurance policies maintained by the Company. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
1.6 "Independent Counsel" means a law firm, or a partner or 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
(a) the Company or Indemnitee in any matter material to either such party (other than as Independent Counsel related to matters concerning Indemnitee under this Agreement, or other indemnitees under similar indemnification agreements), or
(b) any other party to the Proceeding giving rise to a claim for indemnification under this agreement.
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 Indemnitee in an action to determine Indemnitee's rights under this Agreement.
1.7 "Proceeding" means any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative or investigative nature, including any related appeal and including without limitation any such Proceeding pending as of the date of this Agreement, in which Indemnitee was, is or will be involved as a party, a potential party, a non-party witness or otherwise by reason of
(a) the fact that Indemnitee is or was a director or officer of the Company,
(b) any action taken by Indemnitee or any action or inaction on Indemnitee's part while acting as a director or officer of the Company, or
(c) the fact that he or she is or was serving at the request of the Company as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of the Company or any other Enterprise, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification or advancement of expenses can be provided under this Agreement.
2. Indemnitee Rights and Duties
2.1 Indemnitee Position. Indemnitee agrees to serve as a director or officer of the Company.
2.2 Resignation. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position.
2.3 No Employment Relationship. This Agreement shall not be deemed an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee.
3.1 General. The Company shall indemnify, and advance Expenses to, Indemnitee as provided in this Agreement to the fullest extent permitted by applicable law as of the Effective Date or thereafter. The rights of Indemnitee set forth in this Agreement are inclusive to any other rights of Indemnitee.
3.2 Third-Party Proceedings
(a) The Company shall indemnify Indemnitee if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor.
(b) If Indemnitee acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Company and, related to any criminal action or proceeding, had no reasonable cause to believe that their conduct was unlawful, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on their behalf related to such Proceeding or any claim, issue or matter.
3.3 Proceedings by or in the Right of the Company
(a) The Company shall indemnify Indemnitee if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor.
(b) If Indemnitee acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Company, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf related to such Proceeding or any claim, issue or matter.
(c) No indemnification for Expenses shall be made under this subsection in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged by a court of competent jurisdiction to be liable to the Company, unless and only to the extent that any court in which the Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification for such expenses as the court shall deem proper.
3.4 Indemnification for Expenses of a Party Who is Wholly or Partly Successful
(a) To the extent that Indemnitee is a party to or a participant in and is successful in defense of any Proceeding or any claim, issue or matter, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf.
(b) To the extent permitted by applicable law, if Indemnitee is not wholly successful in such Proceeding but is successful in defense of one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf related to
(i) each successfully resolved claim, issue or matter and
(ii) any claim, issue or matter related to any such successfully resolved claim, issuer or matter.
For purposes of this subsection, 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.
3.5 Indemnification for Expenses of a Witness. To the extent that Indemnitee is, by reason of their Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified to the extent permitted by applicable law against all related Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf.
4. Additional Indemnification
4.1 Additional Indemnification. The Company shall indemnify Indemnitee to the fullest extent permitted by applicable law if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on their behalf related to the Proceeding or any claim, issue or matter.
4.2 Negligence or Wrongdoing. This Section's indemnity shall include all liability arising out of the negligence or active or passive wrongdoing of Indemnitee.
4.3 Limitations. The only limitation that will exist upon the Company's obligations under this Agreement will be that the Company will not be obligated to make any payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in this Agreement) to be unlawful.
5. Exclusions. The Company shall not be obligated to make any indemnity under the following circumstances:
5.1 Excluded Acts or Omissions. Any acts or omissions or transactions from which a director, officer, employee or agent may not be relieved of liability under applicable law.
5.2 Lack of Good Faith. Any expenses incurred by the Indemnitee related torelated to any proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a court of competent jurisdiction determines that the material assertions made by the Indemnitee in such proceeding was not made in good faith or was frivolous.
5.3 Insured Claims. Claims of indemnity for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except related to any excess beyond the amount paid under any insurance policy or other indemnity provision.
5.4 Fraud or Willful Misconduct. Where Indemnitee's conduct has been determined by a final judgment or other final adjudication of a court or arbitration or administrative body of competent jurisdiction to have been knowingly fraudulent or constitute willful misconduct.
5.5 Prohibited by Law. Any indemnification that is prohibited by law.
6. Advancement of Expenses
6.1 Expenses. The Company shall advance all reasonable Expenses incurred by or on behalf of Indemnitee related to any Proceeding within [20 days] after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether before or after final disposition of such Proceeding.
6.2 Expense Statements. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses.
6.3 Advances Unsecured and Interest. Such advances shall, in all events, be unsecured and interest free, and made without regard to the Indemnitee's ability to repay the advances.
6.4 Adjudication under this Agreement. The Indemnitee's entitlement to such Expense Advance will include those Expenses incurred related to any Proceeding by the Indemnified Party against the Company seeking an adjudication or award under this Agreement.
7. Indemnification Procedure
(a) Written Request. To obtain indemnification, Indemnitee shall submit to the Company a written request with such documentation and information as is reasonably available to Indemnitee and as is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of the Proceeding.
(b) Advise of Board of Directors. The Company shall, as soon as reasonably practicable after receipt of such a request for indemnification, advise the board of directors that Indemnitee has requested indemnification.
(c) Delay of Notice Does Not Relieve Company Obligations. Any delay in providing the request will not relieve the Company from its obligations under this Agreement, except to the extent such failure is prejudicial.
7.2 Determination of Entitlement
(a) Determination Procedure. Upon written request by Indemnitee for indemnification under this Section, a determination related to Indemnitee's entitlement shall be made in the specific case
(i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Company's board of directors, a copy of which shall be delivered to Indemnitee or
(ii) if a Change in Control shall not have occurred,
(A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Company's board of directors,
(B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Company's board of directors, or
(C) if so directed by the Company's board of directors, by the stockholders of the Company.
(b) Payment. If it is determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within [10 days] after such determination.
(c) Indemnitee Cooperation. Indemnitee shall cooperate with the person, persons or entity making the determination related to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination.
(d) Costs. Any costs or expenses (including attorneys' fees and disbursements) reasonably incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company, to the extent permitted by applicable law.
8. Notification and Defense of Claims
8.1 Notification by Indemnitee
(a) Promptly after receipt by Indemnitee of notice of the commencement of any Proceeding, Indemnitee will, if a claim is to be made against the Company under this Agreement, notify the Company of the commencement of such Proceeding.
(b) Indemnitee's failure to notify the Company will not relieve the Company from any liability which it may have to Indemnitee otherwise than under this Agreement.
8.2 Defense of Claim. Related to any Proceeding as to which Indemnitee notifies the Company:
(a) The Company will be entitled to participate at its own expense.
(b) Except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense, with counsel reasonably satisfactory to Indemnitee.
(c) After notice from the Company to Indemnitee of its election defend the claim, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee related to the defense thereof other than reasonable costs of investigation or as otherwise provided below.
(d) Indemnitee shall have the right to employ his or her own counsel in such Proceeding, but the Expenses associated with the employment of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee unless
(i) the employment of counsel by Indemnitee has been authorized by the Company,
(ii) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of the defense of such Proceeding, or
(iii) the Company shall not in fact have employed counsel to assume the defense of such Proceeding, in each of which cases the Expenses of Indemnitee's separate counsel shall be at the expense of the Company.
(e) The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of Company or as to which Indemnitee shall reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of the defense of such Proceeding.
(f) Provided there has been no Change in Control, the Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its written consent, which consent shall not be unreasonably withheld. The Company shall be permitted to settle any Proceeding except that it shall not settle any Proceeding in any manner that would impose any penalty, out-of-pocket liability, or limitation on Indemnitee without Indemnitee's written consent.
9.1 Non-Exclusivity. The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Company's certificate of incorporation or bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise.
9.2 Rights and Remedies Cumulative. Except as expressly set forth in this Agreement, 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 under this agreement or now or hereafter existing at law or in equity or otherwise. Except as expressly set forth herein, the assertion or employment of any right or remedy under this agreement, or otherwise, shall not prevent the concurrent assertion of any other right or remedy.
10. Remedies of Indemnitee
10.1 Adjudication upon Denial of Indemnification. If
(a) a determination is made in accordance with this Agreement that Indemnitee is not entitled to indemnification under this Agreement,
(b) advancement of Expenses is not timely made,
(c) no determination of entitlement to indemnification shall have been made in accordance with this Agreement within [90 days] after the later of the receipt by the Company of the request for indemnification or the final disposition of the Proceeding,
(d) payment of indemnification under this Agreement is not made
(i) within [10 days] after a determination has been made that Indemnitee is entitled to indemnification or
(ii) related to indemnification related to Expenses, within [30 days] after receipt by the Company of a written request therefor, or
(e) the Company or any other person or entity takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, Indemnitee the benefits provided or intended to be provided to Indemnitee under this agreement,
Indemnitee shall be entitled to an adjudication by a court of competent jurisdiction of his or her entitlement to such indemnification or advancement of Expenses. Indemnitee may alternatively seek an award in arbitration related to his or her entitlement to such indemnification or advancement of Expenses, to be conducted by a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within one year following the date on which Indemnitee first has the right to commence such proceeding under this subsection. The Company shall not oppose Indemnitee's right to seek any such adjudication or an award in arbitration in accordance with this Agreement.
10.2 Nature of Proceeding
(i) the failure of the Company, its board of directors, any committee or subgroup of the board of directors or stockholders to have made a determination that indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor
(ii) an actual determination by the Company, its board of directors, any committee or subgroup of the board of directors or stockholders that Indemnitee has not met the applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has or has not met the applicable standard of conduct.
(b) If a determination shall have been made in accordance with this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced under this Section shall be conducted in all respects as a de novo trial, or arbitration, on the merits, and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced in accordance with this Section, the Company shall, to the fullest extent not prohibited by law, have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.
10.3 Company Bound by Determination. If a determination shall have been made in accordance with this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced under this Section, absent
(a) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, related to the request for indemnification, or
(b) a prohibition of such indemnification under applicable law.
10.4 Precluded Assertions.
(a) To the fullest extent not prohibited by law, the Company shall be precluded from asserting in any judicial proceeding or arbitration commenced under this Section that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.
(b) If a determination shall have been made in accordance with this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced under this Section, absent
(i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statements not materially misleading, related to the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law.
10.5 Expenses. To the extent not prohibited by law, the Company shall indemnify Indemnitee against all Expenses that are incurred by Indemnitee related to any action for indemnification or advancement of Expenses from the Company under this Agreement or under any directors' and officers' liability insurance policies maintained by the Company to the extent Indemnitee is successful in such action, and, if requested by Indemnitee, shall (as soon as reasonably practicable, but in any event no later than [60 days], after receipt by the Company of a written request therefor) advance such Expenses to Indemnitee, subject to this Agreement.
10.6 No Determination Before Final Disposition. Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification shall be required to be made before the final disposition of the Proceeding.]
11.1 Company Contribution. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amounts incurred by Indemnitee, whether for Expenses, judgments, fines or amounts paid or to be paid in settlement, related to any claim concerning an indemnifiable event under this Agreement.
11.2 Amount. The Company's contribution shall be in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect the relative benefits received by the Company and Indemnitee as a result of the events and transactions giving rise to such Proceeding and the relative fault of Indemnitee and the Company (and its other directors, officers, employees and agents) related to such events and transactions.
12. No Duplication of Payments. Subject to any subrogation rights set forth in this Agreement, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable under this agreement (or for which advancement is provided under this agreement) if and to the extent that Indemnitee has otherwise actually received payment for such amounts under any insurance policy, contract, agreement or otherwise.
13.1 D&O Liability Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, trustees, general partners, managing members, officers, employees, agents or fiduciaries of the Company or any other Enterprise, Indemnitee shall be covered by such policy or policies to the same extent as the most favorably-insured persons under such policy or policies in a comparable position.
13.2 No Obligation. 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 parent or subsidiary of the Company.
13.3 Subrogation. In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and 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.
14. Duration of Agreement. This Agreement shall continue until and terminate upon the later of 10 years after the date that Indemnitee shall have ceased to serve as a director or officer of the Company or as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of any other Enterprise, as applicable; or 1 year after the final termination of any Proceeding, including any appeal, then pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses and of any proceeding commenced by Indemnitee under this Agreement.
15. General Provisions
15.1 Enforcement. 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 Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director or officer of the Company.
(a) Form of Notice. All notices, requests, claims, demands and other communications between the parties shall be in writing.
(b) Method of Notice. All notices shall be given
(i) by delivery in person
(ii) by a nationally recognized next day courier service,
(iii) by first class, registered or certified mail, postage prepaid,
(iv) by facsimile [or
(v) by electronic mail]
(vi) [to the addresses as follows / to the address of the party specified in this Agreement] or such other address as either party may specify in writing.
If to [PARTY A]:
[PARTY A ADDRESS]
If to [PARTY B]:
[PARTY B ADDRESS]
(c) Receipt of Notice. All notices shall be effective upon receipt by the party to which notice is given, or on the [5th] day following mailing, whichever occurs first.
15.3 Interpretation of Agreement. It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to provide indemnification to Indemnitee to the fullest extent now or hereafter permitted by law. This Agreement is intended to be retroactive and to apply to events occurring before the date of this Agreement.
15.4 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties and their [permitted] successors and assigns.
15.5 Assignment. The parties may not assign this Agreement or any right or obligation of this agreement, by operation of law or otherwise[ without prior written consent of the party[, which shall not be unreasonably withheld]].
(a) Arbitration. Any dispute or controversy arising under or related to this Agreement shall be settled exclusively by arbitration in [STATE OF ARBITRATION], in accordance with the rules of the American Arbitration Association then in effect by [NUMBER OF ARBITRATORS] arbitrator(s).
(b) Judgment. Judgment may be entered on the arbitrator's award in any court having jurisdiction. The arbitrator shall not have the power to award any punitive [or consequential] damages.]
15.7 Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of [GOVERNING LAW STATE], without giving effect to any choice or conflict of law provision or rule (whether of the State of [GOVERNING LAW STATE] or of any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of [GOVERNING LAW STATE].
15.8 Jurisdiction. The parties submit all their disputes arising out of or related to this Agreement to the exclusive jurisdiction of the Courts of [GOVERNING LAW JURISDICTION].
15.9 Severability. A determination that any provision of this Agreement is invalid or unenforceable shall not affect the validity or enforceability of any other provision hereof. If the final judgment of a court or arbitrator declares that any provision of this agreement is invalid, void or unenforceable, the parties shall reduce the scope, duration, or applicability of the provision, delete specific words or phrases, or replace any invalid, void, or unenforceable term or provision with a provision that is valid and enforceable and that comes closest to expressing the original intention of the invalid, void, or unenforceable provision.
15.10 Survival. Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
15.11 Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
(a) Construction. For purposes of this Agreement, whenever the context requires:
(i) the singular number shall include the plural, and vice versa;
(ii) references to any gender include references to all genders; and
(iii) the words include and including, and any variations, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words without limitation.
15.13 Attorney Fees. In the event of any action to enforce rights under this Agreement, the prevailing party shall be entitled its costs and expenses, including reasonable attorneys' fees, incurred related to such action.
15.14 Entire Agreement. This Agreement ([ together with the documents [referred to in this Agreement / listed on Exhibit A] ]) constitutes the entire agreement between the parties related to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral.
15.15 Counterparts. This agreement may be executed in counterparts, each of which will be deemed to be an original, but all of which, taken together, constitute one and the same agreement. [A counterpart may be delivered to or by any party by any means, including by fax [or email]. If a party's signature is transmitted by fax [or in a PDF file by email], the signature on the counterpart creates a valid and binding obligation of the party executing it (or on whose behalf the signature is made) with the same effect as if the fax [or PDF] signature page were an original.]
15.16 Amendment. This Agreement may be amended only by a written instrument signed by the parties.
The Parties are signing this Indemnification Agreement as of the date stated in the introductory sentence.