EXHIBIT 10.4(b)
FORM OF INDEMNIFICATION AGREEMENT
Volt Information Sciences, Inc. has entered into an Indemnification
Agreement identical to the form attached hereto with each of the following
directors and officers on the dates indicated:
DATE NAME
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January 9, 2007 Jerome Shaw
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January 9, 2007 Howard B. Weinreich
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January 9, 2007 Thomas Daley
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January 9, 2007 Daniel G. Hallihan
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January 9, 2007 Jack Egan
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January 9, 2007 Ludwig M. Guarino
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January 9, 2007 Ronald M. Kochman
- --------------------------------------------------------------------------------
January 9, 2007 Louise Ross
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INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as of the ___ day
of _________, 2007, by and between Volt Information Sciences, Inc., a New York
corporation (the "Corporation"), and ______________________ (the "Indemnitee").
WITNESSETH:
WHEREAS, it is essential to the Corporation to retain and attract directors
and/or officers who are the most capable persons available;
WHEREAS, the Indemnitee is serving or has agreed to serve as a director
and/or officer of the Corporation and in such capacity will render valuable
services to the Corporation;
WHEREAS, the Corporation and the Indemnitee recognize the substantial
increase in litigation and claims being asserted against directors and/or
officers;
WHEREAS, the Corporation's By-laws (together with the Corporation's
Restated Certificate of Incorporation, the "Constituent Documents") provide that
the Corporation will indemnify its directors and officers and will advance
expenses in connection therewith, and Indemnitee's willingness to serve as a
director and/or officer of the Corporation, or, at the Corporation's request, to
serve any Other Enterprise (as defined in Paragraph 2(e)) in any capacity, is
based in part on Indemnitee's reliance on such provisions;
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to encourage Indemnitee's continued service
to the Corporation or, at the Corporation's request, any Other Enterprise, in an
effective manner, and Indemnitee's reliance on the aforesaid provisions of the
Constituent Documents, and to provide Indemnitee with express contractual
indemnification (regardless of, among other things, any amendment to or
revocation of such provisions or any change in the composition of the
Corporation's Board of Directors (the "Board") or any acquisition, disposition
or other business combination transaction involving or relating to the
Corporation), the Corporation wishes to provide in this Agreement for the
indemnification of Indemnifiable Losses (as defined in Paragraph 2(d)) and the
advancement of Expenses (as defined in Paragraph 2(c)) to Indemnitee as set
forth in this Agreement and, to the extent insurance is maintained, for the
continued coverage of Indemnitee under the Corporation's directors' and
officers' liability insurance policies.
NOW, THEREFORE, in consideration of the Indemnitee's continued service as a
director and/or officer of the Corporation, the Corporation and Indemnitee do
hereby agree as follows:
1. Agreement to Serve. Indemnitee agrees to continue to serve as a director
and/or officer of the Corporation for so long as he or she is duly elected
or appointed or until such earlier time as he or she tenders his or her
resignation in writing. This provision is not a guarantee of employment or
service.
2. Certain Definitions. In addition to terms defined elsewhere herein, the
following terms have the following meanings when used in this Agreement:
(a) The term "Affiliate" has the meaning given to that term in Rule 405
under the Securities Act of 1933, as amended; provided, however, that
for purposes of this Agreement the Corporation and its subsidiaries
will not be deemed to constitute Affiliates of any Indemnitee.
(b) The term "Claim" means any threatened, pending or completed action,
suit or proceeding (whether civil, criminal, administrative,
arbitrative, investigative or other), whether instituted by or in the
right of the Corporation or any other Person, or any inquiry or
investigation, whether instituted by the Corporation or any other
Person in which Indemnitee is or was a party or is threatened to be
made a party or in good faith believes might lead to the institution
of any such action, suit or proceeding, by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the
Corporation (or any
subsidiary of the Corporation), or is or was serving at the request of
the Corporation as a director, officer, employee, member, manager,
trustee, agent or fiduciary (or in any other capacity) of an Other
Enterprise.
(c) The term "Expenses" includes all attorneys' and experts' fees,
expenses and charges and all other costs, expenses and obligations,
paid or incurred in connection with investigating, defending, or
participating (as a party, a witness, or otherwise) in (including on
appeal), or preparing to defend or participate in, any Claim or
otherwise establishing a right to indemnification under this
Agreement.
(d) The term "Indemnifiable Losses" means any and all Expenses, damages,
losses, liabilities, judgments, fines, penalties and amounts paid or
payable in settlement (including, without limitation, all interest,
assessments and other charges paid or payable in connection with or in
respect of any of the foregoing, including any excise taxes assessed
on Indemnitee with respect to any employee benefit plan), relating to,
resulting from or arising out of any act or failure to act by the
Indemnitee, or his or her status as any person referred to in clause
(i) of this sentence, (i) in his or her capacity as a director,
officer, employee or agent of the Corporation or any of its Affiliates
or as a director, officer, employee, member, manager, trustee, agent
or fiduciary (or in any other capacity) of any Other Enterprise as to
which the Indemnitee is or was serving at the Corporation's request
and (ii) in respect of any business, transaction or other activity of
any entity referred to in clause (i) of this sentence.
(e) The term "Other Enterprise" shall mean any corporation, limited
liability company, partnership, joint venture, trust or other entity
or enterprise, whether or not for profit, or any employee benefit
plan.
(f) The term "to serve at the Corporation's request" shall mean any
service as a director, officer, employee or agent of the Corporation
which imposes duties on, or involves services by, such Person as a
director, officer, partner, member, manager, employee, trustee, agent
or fiduciary (or in any other capacity) with respect to any Other
Enterprise.
(g) The term "Person" shall mean any individual, governmental entity or
Other Enterprise.
(h) The term "not opposed to the best interests of the Corporation" shall
include action taken in good faith and in a manner the person acting
reasonably believed to be in the interest of the Corporation or its
shareholders or the participants and beneficiaries of an employee
benefit plan.
3. General Indemnification. The Corporation shall indemnify Indemnitee in
accordance with the provisions of this Paragraph 3 against all Expenses
actually and reasonably incurred by Indemnitee in connection with the
defense or settlement of any Claim; provided, however, that no
indemnification for Expenses shall be made under this Paragraph 3 in
respect of any Claim if a judgment or other final adjudication adverse to
Indemnitee establishes that (i) his or her acts were committed in bad faith
or were the result of active and deliberate dishonesty and, in either case,
were material to the cause of action so adjudicated, or (ii) he or she
personally gained in fact a financial profit or other advantage to which he
or she was not legally entitled unless and only to the extent that the
court in which such Claim was brought, or, if no action was brought, any
court of competent jurisdiction determines 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 indemnity for the
Expenses and the amount of the Indemnifiable Losses which the court shall
deem proper.
4. Indemnification of Expenses of Successful Party. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise, in defense of any Claim, Indemnitee
shall be indemnified against all Expenses actually and reasonably incurred
by Indemnitee in connection therewith to the fullest extent permitted by
New York Law.
5. Advances of Expenses. The Indemnitee's right to indemnification in
Paragraph 3 of this Agreement shall include the right of Indemnitee to
receive an advance from the Corporation of any Expenses. If so requested by
Indemnitee, the Corporation will advance within 45 days of such request any
and all Expenses to Indemnitee which Indemnitee reasonably determines
likely to be payable; provided, however, that Indemnitee will return,
without interest, any such advance which remains unspent at the final
conclusion of the Claim to which the advance related; and provided,
further, that all amounts advanced in respect of such Expenses shall be
repaid to the Corporation by Indemnitee if it shall ultimately be
determined in a final judgment or as provided in Paragraph 7, that
Indemnitee is not entitled to be indemnified for such Expenses. This
undertaking by Indemnitee is an unlimited general undertaking but no
security for such undertaking will be required.
6. Indemnification for Additional Expenses. Without limiting the generality or
effect of the foregoing, the Corporation will indemnify Indemnitee against
and, if requested by Indemnitee, will within 45 days of such request
advance to Indemnitee, any and all Expenses paid or incurred by Indemnitee
in connection with any Claim asserted or brought by Indemnitee for (i)
indemnification or advance payment of Expenses by the Corporation under
this Agreement or any other agreement or under
any provision of the Corporation's Constituent Documents now or hereafter
in effect relating to Claims for Indemnifiable Losses and/or (ii) recovery
under any directors' and officers' liability insurance policies maintained
by the Corporation, regardless of whether Indemnitee ultimately is
determined to be entitled to such indemnification, advance expense payment
or insurance recovery, as the case may be.
7. Right of Indemnitee to Indemnification Upon Application; Procedure Upon
Application.
(a) Subject to Paragraph 8 of this Agreement, Indemnitee will be presumed
to be entitled to indemnification under this Agreement. The burden of
proving that indemnification or advances of Expenses are not
appropriate shall, to the extent permitted by law, be on the
Corporation.
(b) Any indemnification under Paragraph 3 shall be paid by the Corporation
no later than 45 days after receipt of the written request of
Indemnitee, unless a determination is made within said 45-day period
by (i) the Board of Directors by a majority vote of directors who are
not and were not parties to the Claim in respect of which
indemnification is being sought ("Disinterested Directors"), (ii) a
committee of the Board of Directors comprised of Disinterested
Directors or (iii) independent legal counsel in a written opinion,
that Indemnitee has not met the relevant standards for indemnification
set forth in this Agreement. In any such case, the Corporation shall
send prompt written notice to the Indemnitee of such determination. If
requested by the Indemnitee in writing, any such determination shall
be made by independent legal counsel not previously employed by the
Corporation or any Affiliate thereof.
(c) Indemnitee will be entitled to a hearing before the Board of Directors
of Corporation or the Disinterested Directors and/or any other person
or persons making a determination and evaluation under Paragraph 7(b).
Indemnitee will be entitled to be represented by counsel at such
hearing. The cost of any determination and evaluation under Paragraph
7(b) (including attorneys' fees and other expenses incurred by
Indemnitee in preparing for and attending the hearing contemplated by
Paragraph 7 and otherwise in connection with the determination and
evaluation under Paragraph 7) will be borne by the Corporation.
(d) The right to indemnification or advancement of Expenses as provided by
this Agreement shall be enforceable by Indemnitee in any court of
competent jurisdiction. Neither the failure of the Corporation
(including its Board of Directors or independent legal counsel) to
have made a determination prior to the commencement of such action
that Indemnitee has met the applicable standard of conduct nor an
actual determination by the Corporation (including its Board of
Directors or independent
legal counsel) that Indemnitee has not met such standard shall be a
defense to the action or create a presumption that Indemnitee has not
met the applicable standard of conduct. Indemnitee's Expenses actually
and reasonably incurred in connection with successfully establishing
his or her right to indemnification or advances, in whole or in part,
shall also be indemnified by the Corporation.
(e) With respect to any Claim for which indemnification is requested, the
Corporation will be entitled to participate therein at its own expense
and, except as otherwise provided below, the Corporation may assume
the defense thereof, with counsel satisfactory to Indemnitee. After
notice from the Corporation to Indemnitee of its election to assume
the defense of a Claim, the Corporation will not be liable to
Indemnitee under this Agreement for any Expenses subsequently incurred
by Indemnitee in connection with the defense thereof, other than as
provided below. The Corporation shall not settle any Claim in any
manner which would impose any penalty or limitation on Indemnitee
without Indemnitee's written consent. Indemnitee shall have the right
to employ counsel in any Claim but the fees and expenses of such
counsel incurred after notice from the Corporation of its assumption
of the defense of the Claim shall be at the expense of Indemnitee,
unless (i) the employment of counsel by Indemnitee has been authorized
by the Corporation, (ii) Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Corporation and
Indemnitee in the conduct of the defense of a Claim, (iii) the named
parties in any such Claim (including any impleaded parties) include
both the Corporation and Indemnitee, and Indemnitee shall conclude
that there may be one or more legal defenses available to him or her
that are different from or in addition to those available to the
Corporation, (iv) any such representation by the Corporation would be
precluded under the applicable standards of professional conduct then
prevailing or (v) the Corporation shall not in fact have employed
counsel to assume the defense of a Claim, in each of which cases the
fees and expenses of Indemnitee 's counsel shall be advanced by the
Corporation. Notwithstanding the foregoing, the Corporation shall not
be entitled to assume the defense of any Claim brought by or in the
right of the Corporation.
(f) The Corporation shall pay to Indemnitee, at the time payments are made
to Indemnitee for Expenses pursuant to this Agreement, an additional
payment (the "Gross Up Amount") such that after payment of all taxes,
if any, on payments so made, including the amount of the Gross Up
Amount, Indemnitee retains an amount equal to the amount to be
received.
8. Limitation on Indemnification. No payment pursuant to this Agreement shall
be made by the Corporation:
(a) to indemnify or advance funds to Indemnitee for Expenses with respect
to Claims initiated or brought or joined in voluntarily by Indemnitee
and not by way of defense, except with respect to Claims brought to
establish or enforce a right to indemnification or advancement of
Expenses under this Agreement or as otherwise required by New York
law, but such indemnification or advancement of Expenses may be
provided by the Corporation in specific cases if the Board finds it to
be appropriate;
(b) to indemnify Indemnitee for any Expenses sustained in any Claim for
which payment is actually made to Indemnitee under a valid and
collectible insurance policy, except in respect of any excess beyond
the amount of payment under such insurance;
(c) to indemnify Indemnitee for any Expenses sustained in any Claim for an
accounting of profits made from the purchase or sale by Indemnitee of
securities of the Corporation pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended, the rules
and regulations promulgated thereunder and amendments thereto or
similar provisions of any federal, state, or local statutory law;
(d) to indemnify Indemnitee if his or her acts violated Section 719 of the
New York Business Corporation law (the "NYBCL"); or
(e) if a court of competent jurisdiction finally determines that such
payment hereunder is unlawful.
9. Indemnification Hereunder Not Exclusive. The indemnification and
advancement of Expenses provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may be entitled under the
Constituent Documents of the Corporation, any agreement, any vote of
stockholders or Disinterested Directors, the NYBCL or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office (collectively, "Other Indemnity Provisions"); provided,
however, that (i) to the extent that Indemnitee otherwise would have any
greater right to indemnification under any Other Indemnity Provision,
Indemnitee will be deemed to have such greater right hereunder and (ii) to
the extent that any change is made to any Other Indemnity Provision which
permits any greater right to indemnification than that provided under this
Agreement as of the date hereof, Indemnitee will be deemed to have such
greater right hereunder. The indemnification rights afforded to Indemnitee
hereby are contract rights and the Corporation will not adopt any amendment
to any of the Constituent Documents the effect of which would be to
eliminate, deny,
diminish, encumber or otherwise affect Indemnitee's right to
indemnification under this Agreement or any Other Indemnity Provision. The
indemnification provided by this Agreement shall continue as to Indemnitee
even though he or she may have ceased to be a director, officer, employee
or agent of the Corporation and shall inure to the benefit of the heirs and
personal representatives of Indemnitee.
10. Partial Indemnification. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Corporation for a portion of the
Expenses and/or Indemnifiable Losses actually and reasonably incurred by
him or her in any Claim but not, however, for the total amount thereof, the
Corporation shall nevertheless indemnify Indemnitee for the portion of such
Expenses and/or Indemnifiable Losses to which Indemnitee is entitled.
Moreover, notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been successful on the merits or otherwise in
defense of any or all Claims relating in whole or in part to an
Indemnifiable Loss or in defense of any issue or matter therein, including,
without limitation, dismissal without prejudice, Indemnitee will be
indemnified against all Expenses incurred in connection therewith.
11. No Other Presumption. 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 nolo contendere or its
equivalent, shall not, of itself, create a presumption that Indemnitee did
not act in good faith in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation.
12. Indemnification of Indemnitee's Estate. Notwithstanding any other provision
of this Agreement, and regardless of whether indemnification of the
Indemnitee would be permitted and/or required under this Agreement, if the
Indemnitee is deceased, the Corporation shall indemnify and hold harmless
the Indemnitee's estate, spouse, heirs, administrators, personal or legal
representatives, executors and trustees (collectively the "Indemnitee's
Estate") against, and the Corporation shall assume, any and all Expenses
actually incurred by the Indemnitee or the Indemnitee's Estate in
connection with the investigation, defense, settlement or appeal of any
Claim. Indemnification of the Indemnitee's Estate pursuant to this
Paragraph 12 shall be mandatory and not require any determination or
finding that the Indemnitee's conduct satisfied a particular standard of
conduct.
13. Spousal Indemnification. The indemnifications, benefits and obligations of
this Agreement shall extend to the spouse of an Indemnitee in the event
that the spouse is made a party to a Proceeding or collection, execution or
enforcement efforts arising from a Claim.
14. Limitation of Actions and Release of Claims. No proceeding shall be brought
and no cause of action shall be asserted by or on behalf of the
Corporation, any subsidiary of the Corporation or any Other Enterprise
against the Indemnitee, after the expiration of one year from the act or
omission of the Indemnitee upon which such proceeding is based; however, in
a case where the Indemnitee fraudulently conceals the facts
underlying such cause of action, no proceeding shall be brought and no
cause of action shall be asserted after the expiration of one year from the
earlier of (i) the date the Corporation, any subsidiary of the Corporation
or any Other Enterprise discovers such facts, or (ii) the date the
Corporation, any subsidiary of the Corporation or any Other Enterprise
could have discovered such facts by the exercise of reasonable diligence.
Any claim or cause of action of the Corporation, any subsidiary of the
Corporation or any Other Enterprise, including claims predicated upon the
act or omission of the Indemnitee, shall be extinguished and deemed
released unless asserted by filing of a legal action within such period.
This Paragraph 14 shall not apply to any cause of action which has accrued
on the date hereof and of which the Indemnitee is aware on the date hereof,
but as to which the Corporation has no actual knowledge apart from the
Indemnitee's knowledge.
15. Maintenance of Liability Insurance.
(a) The Corporation hereby covenants and agrees that, as long as
Indemnitee continues to serve as a director or officer of the
Corporation and thereafter as long as Indemnitee may be subject to any
Claim, the Corporation, subject to subparagraph (c) below, shall
maintain in full force and effect directors' and officers' liability
insurance ("D&O Insurance") in reasonable amounts from established and
reputable insurers.
(b) In all D&O Insurance policies, Indemnitee shall be named as an insured
in such a manner as to provide the Indemnitee the same rights and
benefits as are accorded to the most favorably insured of the
Corporation's directors and officers.
(c) Notwithstanding the foregoing, the Corporation shall have no
obligation to obtain or maintain D&O Insurance if the Corporation
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 Indemnitee is covered by similar insurance maintained by a
subsidiary of the Corporation.
16. Subrogation. In the event of payment under this Agreement, the Corporation
will be subrogated to the extent of such payment to all of the related
rights of recovery of Indemnitee against other Persons, including any
carrier of D&O Insurance (other than personal directors' (or officers')
insurance coverage, if any, which is maintained by Indemnitee). The
Indemnitee will execute all papers reasonably required to evidence such
rights (all of Indemnitee's reasonable Expenses related thereto to be
reimbursed by or, at the option of Indemnitee, advanced by the
Corporation).
17. No Duplication of Payments. The Corporation will not be liable under this
Agreement to make any payment in connection with any Indemnifiable Loss
made against Indemnitee to the extent Indemnitee has otherwise actually
received payment (net of Expenses incurred in connection therewith) under
any insurance policy, the Constituent Documents and Other Indemnity
Provisions or otherwise of the amounts otherwise indemnifiable hereunder
provided that, if Indemnitee for any reason is required to disgorge any
payment actually received by him, the Corporation shall be obligated to pay
such amount to Indemnitee in accordance with the other terms of this
Agreement (i.e., disregarding the terms of this Paragraph 17).
18. Successors and Binding Agreement.
(a) The Corporation will require any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization or
otherwise) to all or substantially all of the business or assets of
the Corporation (a "Successor"), by agreement in form and substance
satisfactory to Indemnitee and his or her counsel, expressly to assume
and agree to perform this Agreement in the same manner and to the same
extent the Corporation would be required to perform if no such
succession had taken place. This Agreement will be binding upon and
inure to the benefit of the Corporation and may be assigned to a
Successor, but will not otherwise be assignable or delegatable by the
Corporation.
(b) This Agreement will inure to the benefit of and be enforceable by the
Indemnitee's Estate and, to the extent provided in Paragraph 13,
Indemnitee's spouse.
(c) This Agreement is personal in nature and neither of the parties hereto
will, without the consent of the other, assign or delegate this
Agreement or any rights or obligations hereunder except as expressly
provided in Paragraphs 18(a) and 18(b). Without limiting the
generality or effect of the foregoing, Indemnitee's right to receive
payments hereunder will not be assignable, whether by pledge, creation
of a security interest or otherwise, other than by a transfer by the
Indemnitee's will or by the laws of descent and distribution, and, in
the event of any attempted assignment or transfer contrary to this
Paragraph 18(c), the Corporation will have no liability to pay any
amount so attempted to be assigned or transferred.
19. Notices. For all purposes of this Agreement, all communications, including
without limitation notices, consents, requests or approvals, required or
permitted to be given hereunder will be in writing and will
be deemed to have been duly given when hand delivered or dispatched by
electronic facsimile transmission (with receipt thereof orally confirmed),
or five business days after having been mailed by United States registered
or certified mail, return receipt requested, postage prepaid or one
business day after having been sent for next-day delivery by a nationally
recognized overnight courier service, addressed to the Corporation (to the
attention of the Secretary of the Corporation) and to the Indemnitee at the
addresses shown on the signature page hereto, or to such other address as
any party may have furnished to the other in writing and in accordance
herewith, except that notices of changes of address will be effective only
upon receipt.
20. Governing Law. The validity, interpretation, construction and performance
of this Agreement will be governed by and construed in accordance with the
substantive laws of the State of New York, without giving effect to the
principles of conflict of laws of such State. Each party consents to
non-exclusive jurisdiction of any New York state or federal court for
purposes of any action, suit or proceeding hereunder, waives any objection
to venue therein or any defense based on forum non conveniens or similar
theories and agrees that service of process may be effected in any such
action, suit or proceeding by notice given in accordance with Paragraph 19.
21. Validity. If any provision of this Agreement or the application of any
provision hereof to any person or circumstance is held invalid,
unenforceable or otherwise illegal by any court of competent jurisdiction,
the remainder of this Agreement and the application of such provision to
any other person or circumstance will not be affected, and the provision so
held to be invalid, unenforceable or otherwise illegal will be reformed to
the extent, and only to the extent, necessary to make it enforceable, valid
or legal.
22. Miscellaneous. No provision of this Agreement may be waived, modified or
discharged unless such waiver, modification or discharge is agreed to in
writing signed by Indemnitee and the Corporation. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance
with any condition or provision of this Agreement to be performed by such
other party will be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, expressed or implied with respect to
the subject matter hereof have been made by either party that are not set
forth expressly in this Agreement. References to Paragraphs are to
Paragraphs of this Agreement.
23. Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original but all of which together
will constitute one and the same agreement.
24. Amendments. No amendment, waiver, modification, termination, or
cancellation of this Agreement shall be effective unless in writing signed
by both parties hereto.
25. Cooperation and Interest. The Corporation shall cooperate in good faith
with the Indemnitee and use its best efforts to ensure that the Indemnitee
is indemnified and/or reimbursed for liabilities described in this
Agreement to the fullest extent permitted by law.
26. Legal Fees and Expenses. It is the intent of the Corporation that the
Indemnitee not be required to incur legal fees and or other Expenses
associated with the interpretation, enforcement or defense of Indemnitee's
rights under this Agreement by litigation or otherwise because the cost and
expense thereof would substantially detract from the benefits intended to
be extended to the Indemnitee hereunder. Accordingly, without limiting the
generality or effect of any other provision hereof, (i) if it should appear
to the Indemnitee that the Corporation has failed to comply with any of its
obligations under this Agreement or that an action should be brought in the
nature of a declaratory judgment to determine the rights of the parties
hereto, or (ii) in the event that the Corporation or any other person 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, the Indemnitee the benefits provided
or intended to be provided to the Indemnitee hereunder, the Corporation
irrevocably authorizes the Indemnitee from time to time to retain counsel
of Indemnitee's choice, at the expense of the Corporation as hereafter
provided, to advise and represent the Indemnitee in connection with any
such interpretation, enforcement or defense, including without limitation
the initiation or defense of any litigation or other legal action, whether
by or against the Corporation or any director, officer, stockholder or
other person affiliated with the Corporation. Notwithstanding any existing
or prior attorney-client relationship between the Corporation and such
counsel, the Corporation irrevocably consents to the Indemnitee's entering
into an attorney-client relationship with such counsel, and in that
connection the Corporation and the Indemnitee agree that a confidential
relationship shall exist between the Indemnitee and such counsel. Without
respect to whether the Indemnitee prevails, in whole or in part, in
connection with any of the foregoing, the Corporation will pay and be
solely financially responsible for any and all attorneys' and related fees
and expenses incurred by the Indemnitee in connection with any of the
foregoing.
27. Certain Interpretive Matters. No provision of this Agreement will be
interpreted in favor of, or against, either of the parties hereto by reason
of the extent to which either such party or its counsel participated in the
drafting thereof or by reason of the extent to which any such provision is
inconsistent with any prior draft hereof or thereof
28. Effective Date. The provisions of this Agreement shall cover Claims,
whether now pending or hereafter commenced, and shall be retroactive to
cover acts or omissions or alleged acts or omissions which heretofore have
taken place.
IN WITNESS WHEREOF, Indemnitee has executed and the Corporation has caused
its duly authorized representative to execute this Agreement as of the date
first above written.
Attest: Volt Information Sciences, Inc.
By:
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Secretary Name:
Title:
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Indemnitee