OFFICER/DIRECTOR INDEMNIFICATION AGREEMENT
THIS AGREEMENT ("Agreement") is entered into and effective this 16th day of
December, 1996, by and between Maxxon, Inc., an Oklahoma corporation
("Corporation"), and Xxxxxxx X. Xxxxx, ("Indemnified Party").
WHEREAS, the Board of Directors has determined that it is in the best
interest of the Corporation and its shareholders to agree to indemnify
Indemnified Party (who is a Director and/or Officer of the Corporation) from and
against certain liabilities for actions taken by the Indemnified Party during
the performance of tasks for the Corporation.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Indemnification. The Corporation hereby agrees to indemnify and hold
harmless Indemnified Party to the maximum extent possible under all applicable
laws against any and all claims, demands, debts, duties, liabilities, judgments,
fines and amounts paid in settlement and expenses (including attorneys' fees and
expenses) actually and reasonably incurred by Indemnified Party in connection
with the investigation, defense, negotiation and settlement of any such claim or
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including an action by or in the
right of the Corporation) to which Indemnified Party is or becomes a party, or
is threatened to be made a party, by reason of the fact that Indemnified Party
is an officer or a director of the Corporation or any of its subsidiaries.
2. Limitations on Indemnity. No indemnity pursuant to this Agreement shall
be made by the Corporation:
(a) For the amount of such losses for which the Indemnified Party is
indemnified pursuant to any insurance purchased and maintained
by the Corporation; or
(b) In respect to remuneration paid to Indemnified Party if it shall
be determined by a final judgment or other final adjudication
that such remuneration was in violation of law; or
(c) On account of any suit in which judgment is rendered against
Indemnified Party for an accounting of profits made (i) for an
improper personal profit without full and fair disclosure to the
Corporation of all material conflicts of interest and not
approved thereof by a majority of the disinterested members of
the Board of Directors of the Corporation; or (ii) from the
purchase or sale by Indemnified Party 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 law; or
(d) On account of Indemnified Party's conduct which is finally
determined to have been knowingly fraudulent, deliberately
dishonest or willfully in violation of applicable law for which
the corporation suffered actual financial damages; or
(e) If a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful.
Officer/Director Indemnification Agreement
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3. Continuation of Indemnity. All agreements and obligations of the
Corporation contained herein shall continue during the period Indemnified Party
is an officer or director of the Corporation or a subsidiary and thereafter so
long as Indemnified Party shall be subject to any possible claim or threatened,
pending or completed action, suit or proceeding, whether civil, criminal or
investigative, by reason of the fact that Indemnified Party was an officer or a
director of the Corporation or any subsidiary.
4. Notification and Defense of Claim. Within 30 days after receipt by
Indemnified Party of notice of any claim or any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, in which Indemnified Party has a right to Indemnification
hereunder, Indemnified Party will notify the Corporation of the commencement
thereof. With respect to any such action, suit or proceeding as to which
Indemnified Party notifies the Corporation of the commencement thereof:
(a) The Corporation will be entitled to participate therein at its
own expense; and
(b) Except as otherwise provided below, to the extent that it may
wish, the Corporation jointly with any other indemnifying party
will be entitled to assume the defense thereof, with counsel
satisfactory to Indemnified Party. After notice from the
Corporation to Indemnified Party of its election to assume the
defense thereof, the Corporation will not be liable to
Indemnified Party under this Agreement for any legal or other
expenses subsequently incurred by Indemnified Party in
connection with the defense thereof other than reasonable costs
of investigation or as otherwise provided below. Indemnified
Party shall have the right to employ 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 Indemnified
Party, unless (i) the employment of counsel by Indemnified Party
has been authorized by the Corporation, (ii) Indemnified Party
shall have reasonably concluded that there may be a conflict of
interest between the Corporation and Indemnified Party in the
conduct of the defense of such action, (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
counsel shall be at the expense of the Corporation, or (iv)
unless the Indemnified Party reasonably and in good faith
asserts defenses and theories of defense not asserted by 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 Indemnified Party shall
have made the conclusion provided for in (ii) or (iv) above.
(c) Either party may settle any matter, without the consent of the
other, but in such event, the indemnification provided for
herein shall be of no force or effect with respect to such
settlement. The Corporation shall not be liable to indemnify
Indemnified Party under this Agreement for any amounts paid in
settlement of any action or claim effected without the
Corporation's written consent. The Corporation shall not settle
any action or claim in any manner which would impose any penalty
or limitation on Indemnified Party without Indemnified Party's
written consent. Neither the Corporation or Indemnified Party
will unreasonably withhold their consent to any proposed
settlement.
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5. Repayment of Expenses. Indemnified Party agrees that Indemnified Party
will reimburse the Corporation for all reasonable expenses paid by the
Corporation in defending any civil or criminal action, suit or proceeding
against Indemnified Party in the event and only to the extent that Indemnified
Party is finally determined that Indemnified Party is not entitled to be
indemnified by the Corporation for such expenses under the Corporation's charter
or bylaws, this Agreement or under applicable law.
6. Enforcement.
(a) The Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed
on the Corporation hereby in order to induce Indemnified Party
to serve as an officer and/or director of the Corporation or any
subsidiary thereof, and acknowledges that Indemnified Party is
relying upon this Agreement as part of the consideration for so
acting.
(b) In the event Indemnified Party is required to bring any action
to enforce rights or to collect moneys due under this Agreement
and is successful in such action, the Corporation shall
reimburse Indemnified Party for all of Indemnified Party's
reasonable attorneys' and other fees and expenses in bringing
and pursing such action.
7. Severability. 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 or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions hereof.
8. Governing Law; Binding Effect; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in accordance
with the laws of the State of Oklahoma.
(b) This Agreement shall be binding upon Indemnified Party and upon
the Corporation, its successors and assigns, and shall inure to
the benefit of Indemnified Party, his heirs, personal
representatives and assigns and to the benefit of the
Corporation, its successors and assigns.
(c) No amendment, modification, termination or change of this
Agreement shall be effective unless it is signed by both parties
hereto.
9. Additional Rights. This Agreement is in addition to, and not in lieu of,
any other right to indemnification under the Corporation's corporate charter,
bylaws, insurance contracts or otherwise at law or in equity.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
MAXXON, INC.
By: ______________________________
Xxxxxxx X. Xxxxx, Chairman and President
Indemnified Party:
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Name: Xxxxxxx X. Xxxxx
Capacity: Chairman, President and Chief
Executive Officer
Officer/Director Indemnification Agreement
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