Registration of Securities of a Small-Business Issuer — Form 10-SB Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 10SB12G Bluefire Ethanol Fuels, Inc. HTML 277K
2: EX-2.1 Stock Purchase Agreement HTML 322K
3: EX-3.1 Amended and Restated Articles of Incorporation HTML 23K
4: EX-3.2 Amended and Restated Bylaws HTML 110K
5: EX-10.1 Form Directors Agreement HTML 79K
6: EX-10.2 Form Executive Employment Agreement HTML 70K
7: EX-10.3 Technology License Agreement HTML 143K
8: EX-10.4 Asset Transfer and Acquisition Agreement HTML 120K
9: EX-21.1 Subsidiaries HTML 6K
This
agreement made as of the 1st
day of
May, 2006 between BlueFire Ethanol, Inc., with its principal place of business
at 18201 Von Karman Ste 550, CA92612 (“BlueFire”) and ________________, with an
address of ____________________________________, provides for director services,
according to the following:
I.
Services
Provided
BlueFire
agrees to engage --_________________ to serve as a member of the Board of
Directors (the “Director”) and to provide those services required of a director
under BlueFire’s Articles of Incorporation and Bylaws (“Articles and Bylaws”),
as both may be amended from time, to time and under the General Corporation
Law
of Delaware, the federal securities laws and other state and federal laws and
regulations, as applicable.
II.
Nature of
Relationship
The
Director is an independent contractor and will not be deemed an employee of
BlueFire for purposes of employee benefits, income tax withholding, F.I.C.A.
taxes, unemployment benefits or otherwise. The Director shall not enter
into any agreement or incur any obligations on BlueFire’s behalf.
BlueFire
will supply, at no cost to the Director: periodic briefings on the
business, director packages for each board and committee meeting, copies of
minutes of meetings and any other materials that are required under BlueFire’s
Articles and Bylaws or the charter of any committee of the board on which the
director serves and any other materials which may, by mutual agreement, be
necessary for performing the services requested under this
contract.
III.
Director’s
Warranties
The
Director warrants that no other party has exclusive rights to his services
in
the specific areas described and that the Director is in no way compromising
any
rights or trust between any other party and the Director or creating a conflict
of interest. The Director also warrants that no other agreement will be
entered into that will create a conflict of interest with this agreement.
The Director further warrants that he will comply with all applicable state
and
federal laws and regulations, as applicable, including Sections 10 and 16 of
the
Securities and Exchange Act of 1934.
Throughout
the term of this agreement and for a period of six months thereafter, the
Director agrees he will not, without obtaining BlueFire’s prior written consent,
directly or indirectly engage or prepare to engage in any activity in
competition with any BlueFire business or product, including products in the
development stage, accept employment or provide services to (including service
as a member of a board of directors), or establish a business in competition
with BlueFire.
IV.
Compensation
A.
Retainer
BlueFire
shall pay the Director a nonrefundable retainer of $5,000 per year during the
term of this agreement (prorate for the first year) to provide the services
described in Section I which shall compensate him for all time spent preparing
for, traveling to (if applicable) and attending board of director meetings
during the year; provided, however, that if more than three board meetings
require out-of-town travel time, such additional travel time may be billed
at
the rate set forth in subparagraph C. below. The retainer shall be
provided for portions of the term less than a full calendar year. This
retainer may be revised by action of BlueFire’s Board of Directors from time to
time. Such revision shall be effective as of the date specified in the
resolution for payments not yet made and need not be documented by an amendment
to this agreement.
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B.
Stock Options
Subject
to approval by the Board of Directors, an annual grant of an option to purchase
BlueFire common stock, par value $.001 per share, shall be made to the
Director. The grant shall consist of an option to purchase a specified
number of shares under the term of BlueFire’s 2006 Equity Incentive Plan or then
effective incentive plan. The specified number of shares for a new
appointment to the Board shall be 5,000 shares in 2006, which grant has already
been made, and an annual grant at the discretion of the Board. Currently
this grant is of 1,000 shares. Twenty-five percent of the option shall
vest on each quarterly anniversary of the date of grant. The amount and
terms of the annual option grant may be revised by action of BlueFire’s Board of
Directors from time to time. Such revision shall be effective as of the
date specified in the resolution for any grants not yet made and need not be
documented by an amendment to this agreement.
C.
Additional Payments
To
the
extent services described in Section I require more than three out-of-town
trips, such additional travel time may be charged at the rate of $1,000 per
day
or part thereof. This rate may be revised by action of BlueFire’s
Board of Directors from time to time for payments not yet made. Such
revision shall be effective as of the date specified in the resolution and
need
not be documented by an amendment to this agreement.
D.
Payment
Retainer
payments shall be made quarterly in cash in advance on the first day of each
accounting quarter. Additional payments shall be made in arrears. No
invoices need be submitted by the Director for payment of the retainer.
Invoices for additional payments under C, above, shall be submitted. Such
invoices must be approved by BlueFire’s Chief Executive Officer as to form and
completeness.
E.
Expenses
BlueFire
will reimburse the Director for reasonable expenses approved in advance, such
approval not to be unreasonably withheld. Invoices for expenses, with
receipts attached, shall be submitted. Such invoices must be approved by
BlueFire’s Chief Executive Officer as to form and completeness.
V.
Indemnification
and
Insurance
BlueFire
will execute an indemnification agreement in favor of the Director substantially
in the form of the agreement attached hereto as Exhibit B. In addition,
BlueFire will provide directors and officers liability insurance.
VI.
Term of
Agreement
This
agreement shall be in effect from 1st
day of
May, 2006 through the last date of the Director’s current term as a member of
BlueFire’s Board of Directors. This agreement shall be automatically
renewed on the date of the Director’s reelection as a member of BlueFire’s Board
of Director’s for the period of such new term unless the Board of Directors
determines not to renew this agreement. Any amendment to this
agreement must be approved by a written action of BlueFire’s Board of
Directors. Amendments to Section IV Compensation hereof do not require the
Director’s consent to be effective.
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VII.
Termination
This
agreement shall automatically terminate upon the death of the Director or upon
his resignation or removal from, or failure to win election or reelection to,
the BlueFire Board of Directors.
In
the
event of any termination of this agreement, the Director agrees to return any
materials transferred to the Director under this agreement except as may be
necessary to fulfill any outstanding obligations hereunder. The Director
agrees that BlueFire has the right of injunctive relief to enforce this
provision.
BlueFire’s
obligation in the event of such termination shall be to pay the Director the
retainer and other payments due through the date of termination.
Termination
shall not relieve either party of its continuing obligation under this agreement
with respect to confidentiality of proprietary information.
VIII.
Limitation of
Liability
Under
no
circumstances shall BlueFire be liable to the Director for any consequential
damages claimed by any other party as a result of representations made by the
Director with respect to BlueFire which are different from any to those made
in
writing by BlueFire.
Furthermore,
except for the maintenance of confidentiality, neither party shall be liable
to
the other for delay in any performance, or for failure to render any performance
under this agreement when such delay or failure is caused by Government
regulations (whether or not valid), fire, strike, differences with workmen,
illness of employees, flood, accident, or any other cause or causes beyond
reasonable control of such delinquent party.
IX.
Confidentiality
The
Director agrees to sign and abide by BlueFire’s Director Proprietary Information
and Inventions Agreement, a copy of which is attached hereto as Exhibit
A.
X.
Resolution
of
Dispute
Any
dispute regarding the agreement (including without limitation its validity,
interpretation, performance, enforcement, termination and damages) shall be
determined in accordance with the laws of the State of California, the United
States of America. Any action under this paragraph shall not preclude any
party hereto from seeking injunctive or other legal relief to which each party
may be entitled.
XI.
Sole
Agreement
This
agreement (including agreements executed in substantially in the form of the
exhibits attached hereto) supersedes all prior or contemporaneous written or
oral understandings or agreements, and may not be added to, modified, or waived,
in whole or in part, except by a writing signed by the party against whom such
addition, modification or waiver is sought to be asserted.
XII.
Assignment
This
agreement and all of the provisions hereof shall be binding upon and insure
to
the benefit of the parties hereto and their respective successors and permitted
assigns and, except as otherwise expressly provided herein, neither this
agreement, nor any of the rights, interests or obligations hereunder shall
be
assigned by either of the parties hereto without the prior written consent
of
the other party.
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XIII.
Notices
Any
and
all notices, requests and other communications required or permitted hereunder
shall be in writing, registered mail or by facsimile, to each of the parties
at
the addresses set forth above or the numbers set forth below:
Any
such
notice shall be deemed given when received and notice given by registered mail
shall be considered to have been given on the tenth (10th) day after having
been
sent in the manner provided for above.
XIV.
Survival of
Obligations
Notwithstanding
the expiration of termination of this agreement, neither party hereto shall
be
released hereunder from any liability or obligation to the other which has
already accrued as of the time of such expiration or termination (including,
without limitation, BlueFire’s obligation to make any fees and expense payments
required pursuant to Article IV hereof) or which thereafter might accrue in
respect of any act or omission of such party prior to such expiration or
termination.
XV.
Severability
Any
provision of this agreement which is determined to be invalid or unenforceable
shall not affect the remainder of this agreement, which shall remain in effect
as though the invalid or unenforceable provision had not been included herein,
unless the removal of the invalid or unenforceable provision would substantially
defeat the intent, purpose or spirit of this agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
by
their duly authorized officers, as of the date first written above.
Signature:
Date:
___/___/06
By:
Title:
Director
BlueFire
Ethanol, Inc.
Signature:
Date:
___/___/06
By:
Arnold
R. Klann
Title:
President
and Chief Executive Officer
4
EXHIBIT
A
BOARD
OF DIRECTORS PROPRIETARY INFORMATION
AND
INVENTIONS AGREEMENT
WHEREAS,
the parties desire to assure the confidential status of the information which
may be disclosed by BlueFire to the Director; NOW THEREFORE, in reliance upon
and in consideration of the following undertaking, the parties agree as
follows:
1. Subject
to
the limitations set forth in Paragraph 2, all information disclosed by BlueFire
to the Director shall be deemed to be "Proprietary Information". In
particular, Proprietary Information shall be deemed to include any information,
process, technique, algorithm, program, design, drawing, formula or test data
relating to any research project, work in process, future development,
engineering, manufacturing, marketing, servicing, financing or personnel matter
relating to BlueFire, its present or future products, sales, suppliers,
customers, employees, investors, or business, whether or oral, written, graphic
or electronic form.
2. The
term
"Proprietary Information" shall not be deemed to include information which
the
Director can demonstrate by competent written proof. (i) is now, or hereafter
becomes, through no act or failure to act on the part of the Director, generally
known or available; (ii) is known by the Director at the time of receiving
such
information as evidenced by its records: (iii) is hereafter furnished to the
Director by a third party, as a matter of right and without restriction on
disclosure; or (iv) is the subject of a written permission to disclose provided
by BlueFire.
3. The
Director
shall maintain in trust and confidence and not disclose to any third party
or
use for any unauthorized purpose any Proprietary Information received from
BlueFire. The Director may use such Proprietary Information only to the
extent required to accomplish the purposes of this Agreement. The Director
shall not use Proprietary Information for any purpose or in any manner which
would constitute a violation of any laws or regulations, including without
limitation the export control laws of the United States. No other rights
of licenses to trademarks, inventions, copyrights, or patents are implied or
granted under this Agreement.
4. Proprietary
Information supplied shall not be reproduced in any form except as required
to
accomplish the intent of this Agreement.
5. The
Director
represents and warrants that he shall protect the Proprietary Information
received with at least the same degree of care used to protect its own
Proprietary Information from unauthorized use or disclosure. The Director
shall advise its employees or agents who might have access to such Proprietary
Information of the confidential nature thereof and shall obtain from each of
such employers and agents an agreement to abide by the terms of this
Agreement. The Director shall not disclose any Proprietary Information to
any officer, employee or agent who does not have a need for such
information.
6. All
Proprietary Information (including all copies thereof) shall remain in the
property of BlueFire, and shall be returned to BlueFire after Director's need
for it has expired, or upon request of BlueFire, and in any event, upon
completion or termination of this Agreement.
A-1
7. Notwithstanding
any
other provision of this Agreement, disclosure of Proprietary Information shall
not be precluded if such disclosure:
(a)
is in response to a valid order of a court or other governmental body of the
United States or any political subdivision thereof; provided, however, that
the
responding party shall first have given notice to the other party hereto and
shall have made a reasonable effort to obtain a protective order requiring
that
the Proprietary Information so disclosed be used only for the purpose for which
the order was issued;
(b)
is otherwise required by law; or
(c)
is otherwise necessary to establish rights or enforced obligations under this
Agreement, but only to the extent that any such disclosure is
necessary.
8. This
Agreement shall continue in full force and effect for so long as the Director
continues to receive Proprietary Information. This Agreement may be
terminated at any time upon thirty (30) days written notice to the other
party. The termination of the Agreement shall not relieve the Director of
the obligations imposed by Paragraphs 3, 4, 5 and 12 of this Agreement with
respect to Proprietary information disclosed prior to the effective date of
such
termination and the provisions of these Paragraphs shall survive the termination
of this Agreement for a period of five (5) years from the date of such
termination.
9. The
Director
agrees to indemnify BlueFire for any loss or damage suffered as a result of
any
breach by the Director of the terms of this Agreement, including any reasonable
fees incurred by BlueFire in the collection of such indemnity.
10. This
Agreement
shall be governed by the laws of the State of California as those laws are
applied to contracts entered into and to be performed entirely in California
by
California residents.
11. This
Agreement
contains the final, complete and exclusive agreement of the parties relative
to
the subject matter hereof and may not be changed, modified, amended or
supplemented except by a written instrument signed by both parties.
12. Each
party hereby
acknowledges and agrees that in the event of any breach of this Agreement by
the
Director, including, without limitation, an actual or threatened disclosure
of
Proprietary Information without the prior express written consent of BlueFire,
BlueFire will suffer an irreparable injury, such that no remedy at law will
afford it adequate protection against, or appropriate compensation for, such
injury. Accordingly, each party hereby agrees that BlueFire shall be
entitled to specific performance of the Director's obligations under this
Agreement, as well as such further injunctive relief as may be granted by a
court of competent jurisdiction.
THIS
AGREEMENT is
made
and entered into this _____ day of _______, 2006 by and between BLUEFIRE
ETHANOL, INC.,
Delaware corporation (the “Corporation”), and _________________
(“Agent”).
RECITALS
WHEREAS,
Agent
performs a valuable service to the Corporation in his capacity as Director
of
the Corporation;
WHEREAS,
the
stockholders of the Corporation have adopted bylaws (the “Bylaws”) providing for
the indemnification of the directors, officers, employees and other agents
of
the Corporation, including persons serving at the request of the Corporation
in
such capacities with other corporations or enterprises, as authorized by the
Delaware General Corporation Law, as amended (the “Code”);
WHEREAS,
the
Bylaws and the Code, by their non-exclusive nature, permit contracts between
the
Corporation and its agents, officers, employees and other agents with respect
to
indemnification of such persons; and
WHEREAS,
in
order
to induce Agent to continue to serve as Director of the Corporation, the
Corporation has determined and agreed to enter into this Agreement with
Agent;
NOW,
THEREFORE, in
consideration of Agent’s continued service as Director after the date hereof,
the parties hereto agree as follows:
AGREEMENT
1.
Services to the Corporation. Agent
will serve, at the will of the Corporation or under separate contract, if any
such contract exists, as Director of the Corporation or as a director, officer
or other fiduciary of an affiliate of the Corporation (including any employee
benefit plan of the Corporation) faithfully and to the best of his ability
so
long as he is duly elected and qualified in accordance with the provisions
of
the Bylaws or other applicable charter documents of the Corporation or such
affiliate; provided,
however, that
Agent may at anytime and for any reason resign from such position (subject
to
any contractual obligation that Agent may have assumed apart from this
Agreement) and that the Corporation or any affiliate shall have no obligation
under this Agreement to continue Agent in any such position.
2.
Indemnity of Agent. The
Corporation hereby agrees to hold harmless and indemnify Agent to the fullest
extent authorized or permitted by the provisions of the Bylaws and the Code,
as
the same may be amended from time to time (but, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights
than
the Bylaws or the Code permitted prior to adoption of such
amendment).
B-1
3.
Additional Indemnity. In
addition to and not in limitation of the indemnification otherwise provided
for
herein, and subject only to the exclusions set forth in Section 4 hereof, the
Corporation hereby further agrees to hold harmless and indemnify
Agent:
(a)
against
any and all expenses (including attorneys’ fees), witness fees, damages,
judgments, fines and amounts paid in settlement and any other amounts that
Agent
becomes legally obligated to pay because of any claim or claims made against
or
by him in connection with any threatened, pending or completed action, suit
or
proceeding, whether civil, criminal, arbitrational, administrative or
investigative (including an action by or in the right of the Corporation) to
which Agent is, was or at any time becomes a party, or is threatened to be
made
a party, by reason of the fact that Agent is, was or at any time becomes a
director, officer, employee or other agent of Corporation, or is or was serving
or at any time serves at the request of the Corporation as a director, officer,
employee or other agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise; and
(b)
otherwise
to the fullest extent as may be provided to Agent by the Corporation under
the
non-exclusivity provisions of the Code and Section 41 of the
Bylaws.
4.
Limitations on Additional Indemnity. No
indemnity pursuant to Section 3 hereof shall be paid by the
Corporation:
(a)
on
account of any claim against Agent solely for an accounting of profits made
from
the purchase or sale by Agent of securities of the Corporation pursuant to
the
provisions of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state or local
statutory law;
(b)
on
account of Agent’s conduct that is established by a final judgment as knowingly
fraudulent or deliberately dishonest or that constituted willful
misconduct;
(c)
on
account of Agent’s conduct that is established by a final judgment as
constituting a breach of Agent’s duty of loyalty to the Corporation or resulting
in any personal profit or advantage to which Agent was not legally
entitled;
(d)
for
which
payment is actually made to Agent under a valid and collectible insurance policy
or under a valid and enforceable indemnity clause, bylaw or agreement, except
in
respect of any excess beyond payment under such insurance, clause, bylaw or
agreement;
(e)
if
indemnification is not lawful (and, in this respect, both the Corporation and
Agent have been advised that the Securities and Exchange Commission believes
that indemnification for liabilities arising under the federal securities laws
is against public policy and is, therefore, unenforceable and that claims for
indemnification should be submitted to appropriate courts for adjudication);
or
(f)
in
connection with any proceeding (or part thereof) initiated by Agent, or any
proceeding by Agent against the Corporation or its directors, officers,
employees or other agents, unless (i) such indemnification is expressly required
to be made by law, (ii) the proceeding was authorized by the Board of Directors
of the Corporation, (iii) such indemnification is provided by the Corporation,
in its sole discretion, pursuant to the powers vested in the Corporation under
the Code, or (iv) the proceeding is initiated pursuant to Section 9
hereof.
B-2
5.
Continuation of Indemnity. All
agreements and obligations of the Corporation contained herein shall continue
during the period Agent is a director, officer, employee or other agent of
the
Corporation (or is or was serving at the request of the Corporation as a
director, officer, employee or other agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise) and shall
continue thereafter so long as Agent shall be subject to any possible claim
or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, arbitrational, administrative or investigative, by reason of the
fact
that Agent was serving in the capacity referred to herein.
6.
Partial Indemnification. Agent
shall be entitled under this Agreement to indemnification by the Corporation
for
a portion of the expenses (including attorneys’ fees), witness fees, damages,
judgments, fines and amounts paid in settlement and any other amounts that
Agent
becomes legally obligated to pay in connection with any action, suit or
proceeding referred to in Section 3 hereof even if not entitled hereunder to
indemnification for the total amount thereof, and the Corporation shall
indemnify Agent for the portion thereof to which Agent is entitled.
7.
Notification and Defense of Claim. Not
later
than thirty (30) days after receipt by Agent of notice of the commencement
of
any action, suit or proceeding, Agent will, if a claim in respect thereof is
to
be made against the Corporation under this Agreement, notify the Corporation
of
the commencement thereof; but the omission so to notify the Corporation will
not
relieve it from any liability which it may have to Agent otherwise than under
this Agreement. With respect to any such action, suit or proceeding as to which
Agent notifies the Corporation of the commencement thereof:
(a)
the
Corporation will be entitled to participate therein at its own
expense;
(b)
except
as
otherwise provided below, the Corporation may, at its option and jointly with
any other indemnifying party similarly notified and electing to assume such
defense, assume the defense thereof, with counsel reasonably satisfactory to
Agent. After notice from the Corporation to Agent of its election to assume
the
defense thereof, the Corporation will not be liable to Agent under this
Agreement for any legal or other expenses subsequently incurred by Agent in
connection with the defense thereof except for reasonable costs of investigation
or otherwise as provided below. Agent shall have the right to employ separate
counsel in such action, suit or proceeding but the fees and expenses of such
counsel incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of Agent unless (i) the employment
of
counsel by Agent has been authorized by the Corporation, (ii) Agent shall have
reasonably concluded, and so notified the Corporation, that there is an actual
conflict of interest between the Corporation and Agent in the conduct of the
defense of such action or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, in each of which cases the fees
and expenses of Agent’s separate counsel shall be at the expense of the
Corporation. The Corporation shall not be entitled to assume the defense of
any
action, suit or proceeding brought by or on behalf of the Corporation or as
to
which Agent shall have made the conclusion provided for in clause (ii) above;
and
(c)
the
Corporation shall not be liable to indemnify Agent under this Agreement for
any
amounts paid in settlement of any action or claim effected without its written
consent, which shall not be unreasonably withheld. The Corporation shall be
permitted to settle any action except that it shall not settle any action or
claim in any manner which would impose any penalty or limitation on Agent
without Agent’s written consent, which may be given or withheld in Agent’s sole
discretion.
8.
Expenses. The
Corporation shall advance, prior to the final disposition of any proceeding,
promptly following request therefore, all expenses incurred by Agent in
connection with such proceeding upon receipt of an undertaking by or on behalf
of Agent to repay said amounts if it shall be determined ultimately that Agent
is not entitled to be indemnified under the provisions of this Agreement, the
Bylaws, the Code or otherwise.
B-3
9.
Enforcement. Any
right
to indemnification or advances granted by this Agreement to Agent shall be
enforceable by or on behalf of Agent in any court of competent jurisdiction
if
(i) the claim for indemnification or advances is denied, in whole or in part,
or
(ii) no disposition of such claim is made within ninety (90) days of request
therefore. Agent, in such enforcement action, if successful in whole or in
part,
shall be entitled to be paid also the expense of prosecuting his claim. It
shall
be a defense to any action for which a claim for indemnification is made under
Section 3 hereof (other than an action brought to enforce a claim for expenses
pursuant to Section 8 hereof, provided
that the
required undertaking has been tendered to the Corporation) that Agent is not
entitled to indemnification because of the limitations set forth in Section
4
hereof. Neither the failure of the Corporation (including its Board of Directors
or its stockholders) to have made a determination prior to the commencement
of
such enforcement action that indemnification of Agent is proper in the
circumstances, nor an actual determination by the Corporation (including its
Board of Directors or its stockholders) that such indemnification is improper
shall be a defense to the action or create a presumption that Agent is not
entitled to indemnification under this Agreement or otherwise.
10.
Subrogation. In
the
event of payment under this Agreement, the Corporation shall be subrogated
to
the extent of such payment to all of the rights of recovery of Agent, who shall
execute all documents required and shall do all acts that may be necessary
to
secure such rights and to enable the Corporation effectively to bring suit
to
enforce such rights.
11.
Non-Exclusivity of Rights. The
rights conferred on Agent by this Agreement shall not be exclusive of any other
right which Agent may have or hereafter acquire under any statute, provision
of
the Corporation’s Certificate of Incorporation or Bylaws, agreement, vote of
stockholders or directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding office.
12.
Survival of Rights.
(a)
The
rights conferred on Agent by this Agreement shall continue after Agent has
ceased to be a director, officer, employee or other agent of the Corporation
or
to serve at the request of the Corporation as a director, officer, employee
or
other agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise and shall inure to the benefit of Agent’s
heirs, executors and administrators.
(b)
The
Corporation shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of
the
business or assets of the Corporation, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Corporation
would be required to perform if no such succession had taken place.
13.
Separability. Each
of
the provisions of this Agreement is a separate and distinct agreement and
independent of the others, so that if any provision hereof shall be held to
be
invalid for any reason, such invalidity or unenforceability shall not affect
the
validity or enforceability of the other provisions hereof. Furthermore, if
this
Agreement shall be invalidated in its entirety on any ground, then the
Corporation shall nevertheless indemnify Agent to the fullest extent provided
by
the Bylaws, the Code or any other applicable law.
14.
Governing Law. This
Agreement shall be interpreted and enforced in accordance with the laws of
the
State of Delaware.
15.
Amendment and Termination. No
amendment, modification, termination or cancellation of this Agreement shall
be
effective unless in writing signed by both parties hereto.
16.
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 but one and the same Agreement. Only one such counterpart need be
produced to evidence the existence of this Agreement.
17.
Headings. The
headings of the sections of this Agreement are inserted for convenience only
and
shall not be deemed to constitute part of this Agreement or to affect the
construction hereof.
B-4
18.
Notices. All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given (i) upon delivery if
delivered by hand to the party to whom such communication was directed or (ii)
upon the third business day after the date on which such communication was
mailed if mailed by certified or registered mail with postage
prepaid:
