Exhibit 10.3
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is effective as
of the 22nd day of December, 2003 by and between Inrob Ltd.,
a company incorporated under the laws of the State of
Israel, with it principal offices at 2 Haprat St. Industrial
area., Yavne ("Company"), and Mr. Ben-Tsur Joseph, an
Israeli individual, I.D. No. 056031123 from 10 Topaz Street,
Shoham 73142, Israel ("Indemnitee").
WHEREAS, the Company and Indemnitee recognize the difficulty
in obtaining full and adequate liability insurance for
directors, officers, employees, agents and fiduciaries, the
significant increases in the cost of such insurance and the
general reductions in the coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the
substantial increase in corporate litigation in general,
subjecting directors, officers, employees, agents and
fiduciaries to expensive litigation risks at the same time
as the availability and coverage of liability insurance have
been severely limited;
WHEREAS, the Company desires to attract and retain the
services of highly qualified individuals, such as
Indemnitee, to serve the Company and, in part, in order to
induce Indemnitee to continue to provide services to the
Company, wishes to provide for the indemnification and
advancement of expense to Indemnitee, to exempt Indemnitee
from liability to the Company, and agree to procure
reasonable insurance coverage, all of the foregoing to the
maximum extent permitted by law; and
WHEREAS, in view of the considerations set forth above, the
Company desires that Indemnitee shall be indemnified and
exempted by the Company, and enjoy appropriate insurance
coverage, all as set forth herein.
NOW, THEREFORE, the Company and Indemnitee hereby agree as
follows:
1. INDEMNIFICATION.
1.1. INDEMNIFICATION OF EXPENSES. The Company shall
indemnify Indemnitee to the fullest extent permitted by law
and subject to the limitations set forth in Section 1.2
below if Indemnitee was or is or becomes a party to or
witness or other participant in, any threatened, pending or
completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or
investigation that Indemnitee in good faith believes might
lead to the institution of any such action, suit, proceeding
or alternative dispute resolution mechanism, whether civil,
criminal (unless convicted of committing an offense which
requires proof of criminal thought), administrative,
investigative or other (hereinafter a "Claim") by reason of
(or arising in part out of) any Indemnifiable Event (as
defined below) against any and all expenses (including
attorneys' fees and all other costs, expenses and
obligations reasonably incurred in connection with
investigating, defending, being a witness or in
participating in (including on appeal), or preparing to
defend, be a witness in or participate in, any such action,
suit, proceeding, alternative dispute resolution mechanism,
hearing, inquiry or investigation), judgments, and amounts
paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be
unreasonably withheld) of such Claim and any federal, state,
local or foreign taxes imposed on the Indemnitee as a result
of the actual or deemed receipt of any payments under this
Agreement (collectively, hereinafter "Expenses"), including
all interest, assessments and other charges paid or payable
in connection with or in respect of such Expenses, provided
that in respect of any specific Indemnifiable Event, the
Expenses for which Indemnitee may be indemnified hereunder
will not exceed, individually or in the aggregate, the Limit
Amount (as defined below) applicable to such Indemnifiable
Event. Such payments of Expenses shall be made by the
Company as soon as practicable but in any event no later
than five (5) days after written demand by Indemnitee
therefore is presented to the Company.
1.2. INDEMNIFIABLE EVENT; LIMIT AMOUNTS. For the purpose of
this Section, an Indemnifiable Event shall mean any event or
occurrence falling all or in part within any one or more of
the categories set forth in Exhibit "A" to this Agreement
and related to the fact that Indemnitee is or was a
director, officer, employee, agent or fiduciary of the
Company, or any subsidiary of the Company (regardless of
whether it was a subsidiary of the Company at the time of
the event giving rise to Claim), or is or was serving at the
request of the Company as a director, officer, employee,
agent or fiduciary of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of
any action or inaction on the part of Indemnitee while
serving in such capacity. The Limit Amount with respect to
each such category of events described in Exhibit A is
specified following its description. Each such Limit Amount
shall be subject to continuing review and consideration by
the Company, and may be increased, but never decreased, if
the Board of Directors, with the prior approval of the Audit
Committee of the Company, determines that such Limit Amount
is less then the Expenses which can be expected to be
incurred by Indemnitee in connection with the corresponding
Indemnifiable Event. The Indemnification provided herein
shall not be subject to the foregoing limits, if and to the
extent such limits are no longer required by Israeli law.
1.3. REVIEWING PARTY. Notwithstanding the foregoing: (i) the
obligations of the Company under Section 1.1 shall be
subject to the condition that the Reviewing Party (as
described in Section 9.3 hereof) shall not have determined
(in a written opinion) that Indemnitee would not be
permitted to be indemnified under applicable law, and (ii)
the obligation of the Company to make an advance payment of
Expenses to Indemnitee pursuant to Section 2.1 (an "Expense
Advance") shall be subject to the condition that, if, when
and to the extent that the Reviewing Party determines that
Indemnitee should not be permitted to be so indemnified
under applicable law, the Company shall be entitled to be
reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid; provided,
however, that if Indemnitee has commenced or thereafter
commences legal proceedings to secure a determination that
Indemnitee should be indemnified under applicable law, any
determination made by the Reviewing Party that Indemnitee
would not be permitted to be indemnified under applicable
law shall not be binding and Indemnitee shall not be
required to reimburse the Company for any Expense Advance
until a final judicial determination is made with respect
thereto as to which all rights of appeal there from have
been exhausted or lapsed. Indemnitee's obligation to
reimburse the Company for any Expense Advance shall be
unsecured and no interest shall be charged thereon. The
Reviewing Party shall be selected by the Board of Directors.
If there has been no determination by the Reviewing Party or
if the Reviewing Party determines that Indemnitee
substantively would not be permitted to be indemnified in
whole or in part under applicable law, Indemnitee shall have
the right to commence litigation seeking an initial
determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof,
including the legal or factual basis therefore, and the
Company hereby consents to service of process and to appear
in any such proceeding. Any determination by the Reviewing
Party otherwise shall be conclusive and binding on the
Company and Indemnitee.
1.4. MANDATORY PAYMENT OF EXPENSES. Notwithstanding any
other provision of this Agreement other than Section 8
hereof, to the extent that Indemnitee has been successful on
the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any
action, suit, proceeding, inquiry or investigation referred
to in Section 1.1 hereof or in the defense of any claim,
issue or matter therein, Indemnitee shall be indemnified
against all Expenses incurred by Indemnitee in connection
therewith.
2. EXPENSES; INDEMNIFICATION PROCEDURE.
2.1. ADVANCEMENT OF EXPENSES. The Company shall advance all
expenses incurred by Indemnitee. The advances to be made
hereunder shall be paid by the Company to Indemnitee as soon
as practicable, but in any event no later than five (5) days
after written demand by Indemnitee therefore to the Company.
2.2. NOTICE; COOPERATION BY INDEMNITEE. Indemnitee
shall, as a condition precedent to Indemnitee's right to be
indemnified under this Agreement, give the Company notice in
writing as soon as practicable of any Claim made against
Indemnitee for which Indemnification will or could be sought
under this Agreement, provided, however, that any failure to
provide such notice shall not affect Indemnitee's rights to
indemnification hereunder unless and to the extent such
failure to provide notice materially and adversely
prejudices the Company's right to defend against such
action. Notice to the Company shall be directed to the
General Manager of the Company at the address shown on the
signature page of this Agreement (or such other address as
the Company shall designate in writing to Indemnitee), or if
the Indemnitee is then the General Manager of the Company,
such notice shall be directed to the Chairman of the
Company's Board of Directors, at the same address. In
addition, Indemnitee shall give the Company such information
and cooperation as it may reasonably require and as shall be
within Indemnitee's power.
2.3. NO PRESUMPTIONS; BURDEN OF PROOF. For purposes of this
Agreement, the termination of any Claim by judgment, order,
settlement (whether with or without court approval) or
conviction, or upon a plea of guilty, shall not create a
presumption that Indemnitee did not meet any particular
standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted
by applicable law. In addition, neither the failure of the
Reviewing Party to have made a determination as to whether
Indemnitee has met any particular standard of conduct or had
any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of
conduct or did not have such belief, prior to the
commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified
under applicable law, shall be a defense against
Indemnitee's claim or create a presumption that Indemnitee
has not met any particular standard of conduct or did not
have any particular belief. In connection with any
determination by the Reviewing Party or otherwise as to
whether the Indemnitee is entitled to be indemnified
hereunder, the burden of proof shall be on the Company to
establish that Indemnitee is not so entitled.
2.4. NOTICE TO INSURERS. If, at the time of the receipt by
the Company of a notice of a claim pursuant to Section 2.2
hereof, the Company has liability insurance in effect which
may cover such Claim, the Company shall give prompt notice
of the commencement of such Claim to the insurers in
accordance with the procedures set forth in the respective
policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of
the Indemnitee, all amounts payable as a result of such
action, suit, proceeding, inquiry or investigation in
accordance with the terms of such policies.
2.5. SELECTION OF COUNSEL. In the event the Company shall be
obligated hereunder to pay the Expenses of any Claim, and
the Company shall have confirmed to Indemnitee in writing
that the maximum amount of Expenses that Indemnitee may
incur in connection with the Claim in question will not
exceed the Limit Amount in respect of such Claim, the
Company shall be entitled to assume the defense of such
Claim with counsel approved by Indemnitee, which approval
shall not be unreasonably withheld, upon the delivery to
Indemnitee of written notice of its election so to do. After
delivery of such written confirmation and such notice,
approval of such counsel by Indemnitee and the retention of
such counsel by the Company, the Company will not be liable
to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same
Claim; provided, that: (i) Indemnitee shall have the right
to employ Indemnitee's counsel in any such Claim at
Indemnitee's expense, and (ii) if (A) the employment of
counsel by Indemnitee has been previously authorized by the
Company, (B) Indemnitee shall have reasonably concluded that
a potential conflict of interest between the Company and
Indemnitee may arise in the conduct of any such defense, or
(C) the Company shall not continue to retain such counsel to
defend such Claim, then the fees and expenses of Indemnitee
counsel shall be at the expense of the Company. The Company
shall have the right to conduct such defense as it sees fit
in its sole discretion, including the right to settle any
claim against Indemnitee without the consent of the
Indemnitee provided, the amount of such settlement does not
exceed the Limit Amount and any such settlement includes (i)
a complete release discharge of indemnitee, and (ii) does
not contain any admittance of wrong doing by Indemnitee, and
(iii) is monetary only.
3. ADDITIONAL INDEMNIFICATION RIGHTS; ON EXCLUSIVITY.
3.1. SCOPE. In the event of any change after the date of
this agreement of any applicable law, statute or rule which
expands the right of a corporation of the Company's state of
incorporation to indemnify a member of its board of
directors or an officer, employee, agent or fiduciary, it is
the intent of the parties hereto that Indemnitee shall enjoy
by this Agreement the greater benefits afforded by such
change. In the event of any change in any applicable law,
statute or rule which narrows the right of a corporation of
the Company's country or state of incorporation to indemnify
a member of its board of directors or an officer, employee,
agent or fiduciary, such change, to the extent not otherwise
required by such law, statute or rule to be applied to this
Agreement, shall have no effect on this Agreement or the
parties' rights and obligations hereunder except as set
forth in Section 8.1 hereof.
3.2. NONEXCLUSIVITY. The indemnification provided by this
Agreement shall be in addition to any rights to which
Indemnitee may be entitled under the Company's Memorandum
and Articles of Association, as may from time to time be
amended or replaced, any agreement, any vote of shareholders
or disinterested directors, the laws of the Company's state
of incorporation, or otherwise. The indemnification provided
under this Agreement shall continue as to Indemnitee for any
action Indemnitee took or did not take while serving in an
indemnified capacity even though Indemnitee may have ceased
to serve in such capacity.
4. NO DUPLICATION OF PAYMENTS. The Company shall not be
liable under this Agreement to make any payment in
connection with any Claim made against Indemnitee to the
extent Indemnitee has otherwise actually received payment
(under any insurance policy, the Articles or Memorandum of
Association or otherwise) of the amounts otherwise
indemnifiable hereunder, except for the difference, if any,
between the amounts received by the Indemnitee as aforesaid
and the total Expenses incurred by Indemnitee in connection
with such Claim. For the removal of any doubt, any amount
received from D&O Insurance (as defined below) shall not
count against any Limit Amount hereunder.
5. PARTIAL INDEMNIFICATION. If Indemnitee is entitled
under any provision of this Agreement to indemnification by
the Company for some or a portion of Expenses incurred in
connection with any Claim, but not, however, for the entire
total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such Expenses to
which Indemnitee is entitled.
6. LIABILITY INSURANCE. As long as the Indemnitee
continues to serve as a director, officer, employee, agent
or fiduciary of the Company and thereafter as long as the
Indemnitee may be subject to any possible proceedings, the
Company shall procure directors' and officers' liability
insurance to the fullest extent permitted by law ("D&O
Insurance"), in such amount (per claim and per period) as
the Company shall deem appropriate; provided, that, the
Company shall have no obligation to obtain or maintain D&O
Insurance if the Company determines in good faith that such
insurance is not reasonably available, the premium costs for
such insurance are disproportionate to the amount of
coverage provided, the coverage provided by such insurance
is so limited by exclusions that it provides an insufficient
benefit, or the Indemnitee is covered by similar insurance
maintained by a subsidiary of the Company; provided,
however, that the Company shall not terminate any existing
insurance coverage without notifying the Indemnitee of its
intention to do so at least ninety (90) days prior to the
effective date of such termination (for this purpose the non-
renewal of such coverage shall be deemed as termination
thereof and the effective date of such termination shall
then be the expiration date of the existing coverage).
7. EXEMPTION. To the maximum extent permitted by law,
the Company hereby exempts and releases Indemnitee from any
and all liability to the Company related to any breach by
Indemnitee of his or her duty of care to the Company.
8. EXCEPTIONS. Any other provision herein to the
contrary notwithstanding, the Company shall not be obligated
pursuant to the terms of this Agreement:
8.1. EXCLUDED ACTS AND OMISSIONS. To indemnify, insure or
exempt Indemnitee from or against any liability arising out
of (i) Indemnitee's breach of fiduciary duty to the Company,
unless Indemnitee has acted or omitted to act in good faith
and had reasonable ground to believe such action will not
harm the Company's interests, (ii) intentional or reckless
breach by Indemnitee of his or her duty of care to the
Company, or (iii) an action taken with the intention to
unduly profit there from and (iv) any fine or penalty
payment to propitiate an offense.
8.2. CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance
expenses to Indemnitee with respect to Claims initiated or
brought voluntarily by Indemnitee and not by way of defense,
except: (i) with respect to proceedings brought to establish
or enforce a right to indemnification under this Agreement
or any other agreement or insurance policy or under the
Company's Memorandum or Articles of Association now or
hereafter in effect relating to Claims for Indemnifiable
Events, (ii) in specific cases if the Board of Directors has
approved the initiation or bringing of such suit, or (iii)
as otherwise required under any applicable law regardless of
whether Indemnitee ultimately is determined to be entitled
to such indemnification, advance expense payment or
insurance recover, as the case may be.
9. CONSTRUCTION OF CERTAIN PHRASES.
9.1. For purposes of this Agreement, references to the
"Company" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors,
officers, employees, agents or fiduciaries, so that if
Indemnitee is or was serving at the request of such
constituent corporation as a director, officer, employee,
agent or fiduciary of another corporation, partnership,
joint venture, employee benefit plan, trust or other
enterprise, Indemnitee shall stand in the same position
under the provisions of this Agreement with respect to the
resulting or surviving corporation as Indemnitee would have
with respect to such constituent corporation if its separate
existence had continued.
9.2. For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; and
references to "serving at the request of the Company" shall
include any service as a director, officer, employee, agent
or fiduciary of the Company which imposes duties on, or
involves services by, such director, officer, employee,
agent or fiduciary with respect to an employee benefit plan,
its participants or its beneficiaries; and if Indemnitee
acted in good faith and in a manner Indemnitee reasonably
believed to be in the interest of the participants and
beneficiaries of an employee benefit plan, Indemnitee shall
be deemed to have acted in a manner "not opposed to the best
interests of the Company" as referred to in this Agreement.
9.3. For purposes of this Agreement, a "Reviewing Party"
shall mean any appropriate person or body consisting of a
member or members of the Company's Board of Directors or any
other person or body appointed by the Board of Directors who
is not party to the particular Claim for which Indemnitee is
seeking indemnification.
10. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall constitute an
original.
11. BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement
shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect
successor by purchase, merger, consolidation or otherwise to
all or substantially all of the business and/or assets of
the Company, spouses, heirs, and personal and legal
representative. The Company shall require and cause any
successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all, substantially all, or a
substantial part, of the business and/or assets of the
Company, by written agreement in form and substance
satisfactory to Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no
such succession had taken place. This Agreement shall
continue in effect with respect to Claims relating to
Indemnifiable Events regardless of whether Indemnitee
continues to serve as a director, officer, employee, agent
or fiduciary of the Company or any other enterprise at the
Company's request.
12. ATTORNEY'S FEES. In the event that any action is
instituted by Indemnitee under this Agreement or under any
liability insurance policies maintained by the Company to
enforce or interpret any of the terms hereof or thereof,
Indemnitee shall be entitled to be paid all reasonable
expenses incurred by Indemnitee with respect to such action,
regardless of whether Indemnitee is ultimately successful in
such action, and shall be entitled to the advancement of
Expenses with respect to such action, unless as a part of
such action, a court of competent jurisdiction over such
action determines that each of the materials 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
Expenses incurred by Indemnitee in defense of such action
(including costs and expenses incurred with respect to
Indemnitee's counterclaims and cross-claims made in such
action), and shall be entitled to the advancement of
Expenses with respect to such action, unless, as a part of
such action, the court having jurisdiction over such action
determines that each of Indemnitee's material defenses to
such action were made in bad faith or were frivolous.
13. NOTICE. All notices and other communications required
or permitted hereunder shall be in writing, shall be
effective when given and shall in any event be deemed to be
given: (a) five (5) business days after deposit with the
applicable postal service, if delivered by first class mail,
postage prepaid, (b) upon delivery, if delivered by hand,
(c) one business day after the business day of deposit with
Federal Express or similar overnight courier, freight
prepaid, or (d) one day after the business day of delivery
by facsimile transmission, if delivered by facsimile
transmission, with copy by first class mail, postage
prepaid, and shall be addressed if to Indemnitee, at the
Indemnitee's address as set forth beneath Indemnitee's
signature to this Agreement and if to the Company at the
address of its principal corporate offices or at such other
address as such party may designate by ten days' advance
written notice to the other party hereto.
14. CONSENT TO JURISDICTION. The Company and Indemnitee
each hereby irrevocably consent to the jurisdiction of the
courts of the State of Israel for all purposes in connection
with any action or proceeding which arises out of or relates
to this Agreement and agree that any action instituted under
this Agreement shall be commenced, prosecuted and continued
only in the competent Courts of the Tel-Aviv District, which
shall be the exclusive and only proper forum for
adjudicating such a claim.
15. SEVERABILITY. The provisions of this Agreement shall be
severable in the event that any of the provision hereof
(including any provision within a single section, paragraph
or sentence) are held by a court of competent jurisdiction
to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable, to the
fullest extent permitted by law. Furthermore, to the fullest
extent possible, the provisions of this Agreement
(including, without limitations, each portion of this
Agreement containing any provision held to be invalid, void
or otherwise unenforceable that is not itself invalid, void
or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal
or unenforceable.
16. CHOICE OF LAW. This Agreement shall be governed by and
its provisions construed and enforced in accordance with the
laws of the State of Israel, as applied to contracts between
Israeli residents, entered into and to be performed entirely
within the State of Israel, without regard to the conflict
of laws principles thereof or of any other jurisdiction.
17. SUBROGATION. In the event of payment under this
Agreement, the Company shall be subrogated to the extent of
such payment to all of the rights of recovery of Indemnitee,
who shall execute all documents required and shall do all
acts that may be necessary to secure such rights and to
enable the Company effectively to bring suit to enforce such
rights.
18. AMENDMENT AND TERMINATION. No amendment, modification,
termination or cancellation of this Agreement shall be
effective unless it is in writing signed by both the parties
hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.
19. INTEGRATION AND ENTIRE AGREEMENT. This Agreement sets
forth the entire understanding between the parties hereto
and supersedes and merges all previous written and oral
negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties
hereto.
20. NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing
contained in this Agreement shall be construed as giving
Indemnitee any right to be retained in the employ or
otherwise in the service of the Company or any of its
subsidiaries.
IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above
written.
/s/ Ben-Tsur Joseph /s/ Ben-Tsur Joseph
-------------------- ---------------------
Company Indemnitee
Exhibit A
INDEMNIFIABLE EVENTS AND LIMIT AMOUNTS
1. Indemnifiable Event Limitation
Amount
(In US$ Million)
1. Any claim or demand made by customers, 5
suppliers, contractors or other third
parties transacting any form of business
with the Company, its subsidiaries or
affiliates, in the ordinary course of their
respective businesses, relating to the
negotiations or performance of such
transactions, representations or inducements
provided in connection thereto or otherwise;
2. Any claim or demand made in connection 5
with any transaction not in the ordinary
course of business of either the Company,
its subsidiaries or affiliates or the party
making such claim, including the sale, lease
or purchase of any assets or business;
3. Any claim or demand made by employees, 5
consultants, agents or other individuals or
entities employed by or providing services
to the Company relating to compensation owed
to them or damages or liabilities suffered
by them in connection with such employment
or service;
4. Any claim or demand made under any The higher of
securities laws or by reference thereto, or (I) $100; and
related to the failure to disclose any (ii) 50 percent
information in the manner or time such (50%) of
information is required to be disclosed outstanding
pursuant to such laws, or related to shares
inadequate or improper disclosure of multiplied in
information to shareholders, or prospective the last
shareholders, or related to the purchasing, reported share
holding or disposition of securities of the price at its
Company or any other investment activity principle
involving or affected by such securities; exchange prior
to the
occurrence
giving rise to
the
indemnifiable
event.
5. Any claim or demand made for actual or 5
alleged infringement, misappropriation or
misuse of any third party's intellectual
property rights by the Company, its
subsidiaries or affiliates;
6. Any claim or demand made by any lenders 5
or other creditors or for moneys borrowed
by, or other indebtedness of, the Company,
its subsidiaries or affiliates;
7. Any claim or demand made by any third 5
party suffering any personal injury or
damage to business or personal property
through any act or omission attributed to
the Company, its subsidiaries or affiliates,
or their respective employees, agents or
other persons acting or allegedly acting on
their behalf;
8. Any claim or demand made directly or 5
indirectly in connection with complete or
partial failure, by the Company or any
subsidiary or affiliate thereof, or their
respective directors, officers and
employees, to pay, report, keep applicable
records or otherwise, of any foreign,
federal, state, county, local, municipal or
city taxes or other compulsory payments of
any nature whatsoever, including, without
limitation, income, sales, use, transfer,
excise, value added, registration,
severance, stamp, occupation, customs,
duties, real property, personal property,
capital stock, social security,
unemployment, disability, payroll or
employee withholding or other withholding,
including any interest, penalty or addition
thereto, whether disputed or not.
9. Any claim or demand made by purchasers, 5
holders, lessors or other users of products
or assets of the Company, or individuals
treated with such products, for damages or
losses related to such use or treatment;
10. Any administrative, regulatory or 5
judicial actions, orders, decrees, suits,
demands, demand letters, directives, claims,
liens, investigations, proceedings or
notices of noncompliance or violation by any
governmental entity or other person alleging
potential responsibility or liability
(including potential responsibility or
liability for costs of enforcement,
investigation, cleanup, governmental
response, removal or remediation, for
natural resources damages, property damage,
personal injuries or penalties or for
contribution, indemnification, cost
recovery, compensation or injunctive relief)
arising out of, based on or related to (x)
the presence of, release, spill, emission,
leaking, dumping, pouring, deposit,
disposal, discharge, leaching or migration
into the environment (each a "Release") or
threatened Release of, or exposure to, any
hazardous, toxic, explosive or radioactive
substances, wastes or other pollutants,
infectious or medical wastes and all other
substances or wastes of any nature regulated
pursuant to any environmental law, at any
location, whether or not owned, operated,
leased or managed by the Company or any of
its subsidiaries, or (y) circumstances
forming the basis of any violation of any
environmental law or environmental permit,
license, registration or other authorization
required under applicable environmental law.
11. Any administrative, regulatory or 5
judicial actions, orders, decrees, suits,
demands, demand letters, directives, claims,
liens, investigations, proceedings or
notices of noncompliance or violation by any
governmental entity or other person alleging
the failure to comply with any statute, law,
ordinance, rule, regulation, order or decree
of any governmental entity applicable to the
Company or any of its subsidiaries, or any
of their respective businesses or
operations.
12. Any claim or demand, not covered by any 5
of the categories of events described above,
which, pursuant to any applicable law, a
director or officer of the Company may be
held liable to any government or agency
thereof, or any person or entity, in
connection with actions taken by such
director or officer in such capacity.