EXHIBIT 10.3
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered into
as of the 21st day of September, 1997, by and between Xxxxxxxx Xxxx Company, a
Delaware corporation (the "Company"), and Xxxxxx X. Xxxxx ("Indemnitee").
RECITALS:
A. Competent and experienced persons are reluctant to serve or to continue
to serve corporations as directors, officers, or in other capacities unless
they are provided with adequate protection through insurance or indemnification
(or both) against claims and actions against them arising out of their service
to and activities on behalf of those corporations.
B. The current uncertainties relating to the availability of adequate
insurance for directors and officers have increased the difficulty for
corporations to attract and retain competent and experienced persons.
C. The Board of Directors of the Company has determined that the
continuation of present trends in litigation will make it more difficult to
attract and retain competent and experienced persons, that this situation is
detrimental to the best interests of the Company's stockholders, and that the
Company should act to assure its directors and officers that there will be
increased certainty of adequate protection in the future.
D. It is reasonable, prudent, and necessary for the Company to obligate
itself contractually to indemnify its directors and officers to the fullest
extent permitted by applicable law in order to induce them to serve or continue
to serve the Company.
E. Indemnitee is willing to serve and continue to serve the Company on the
condition that he be indemnified to the fullest extent permitted by law.
F. Concurrently with the execution of this Agreement, Indemnitee is
agreeing to serve or to continue to serve as a director or officer of the
Company.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing premises, Indemnitee's
agreement to serve or continue to serve as a director or officer of the
Company, and the covenants contained in this Agreement, the Company and
Indemnitee hereby covenant and agree as follows:
1. CERTAIN DEFINITIONS:
For purposes of this Agreement:
(a) ACQUIRING PERSON: shall mean any Person other than (i) the
Company, (ii) any of the Company's Subsidiaries, (iii) any employee benefit
plan of the Company or of a Subsidiary of the Company or of a corporation owned
directly or indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company, or (iv) any
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or of a Subsidiary of the Company or of a corporation owned
directly or indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
(b) CHANGE IN CONTROL: shall be deemed to have occurred if:
(i) any Acquiring Person is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934 (the
"Exchange Act")), directly or indirectly, of securities of the Company
representing fifty percent or more of the combined voting power of the then
outstanding Voting Securities of the Company; or
(ii) members of the Incumbent Board cease for any reason to
constitute at least a majority of the Board of Directors of the Company; or
(iii) the Company merges or consolidates with any other
corporation or entity, or the Company or the stockholders of the Company and
holders of voting securities in such other corporation or entity participate in
a securities exchange, other than a merger or consolidation that would result
in the Voting Securities of the Company outstanding immediately before the
completion thereof continuing to represent a majority of the combined voting
power of the Voting Securities of the surviving entity (or its parent)
outstanding immediately after that merger, consolidation or securities
exchange; or
(iv) the Company liquidates, sells or disposes of all or
substantially all the Company's assets in one transaction or series of
transactions other than a liquidation, sale or disposition of all or
substantially all the Company's assets in one transaction or a series of
related transactions to an entity owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
(c) CLAIM: shall mean any threatened, pending or completed action,
suit or proceeding (including, without limitation, securities laws actions,
suits and proceedings and also any crossclaim or counterclaim in any action,
suit or proceeding), whether civil, criminal, arbitral, administrative or
investigative in nature, or any inquiry or investigation (including discovery),
whether conducted by the Company or any other Person, that Indemnitee in good
faith believes might lead to the institution of any action, suit or proceeding.
2
(d) EXPENSES: shall mean all costs, expenses (including attorneys'
and expert witnesses' fees), and obligations paid or incurred in connection
with investigating, defending (including affirmative defenses and
counterclaims), being a witness in, or participating in (including on appeal),
or preparing to defend, be a witness in, or participate in, any Claim relating
to any Indemnifiable Event.
(e) INCUMBENT BOARD: shall mean individuals who, as of August 21,
1997, constitute the Board of Directors of the Company and any other individual
who becomes a director of the Company after that date and whose election or
appointment by the Board of Directors or nomination for election by the
Company's stockholders was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board.
(f) INDEMNIFIABLE EVENT: shall mean any actual or alleged act,
omission, statement, misstatement, event or occurrence related to the fact that
Indemnitee is or was a director, officer, agent or fiduciary of the Company, or
is or was serving at the request of the Company as a director, officer,
trustee, agent or fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, or by reason of any actual or
alleged thing done or not done by Indemnitee in any such capacity. For purposes
of this Agreement, the Company agrees that Indemnitee's service on behalf of or
with respect to any Subsidiary or employee benefits plan of the Company or any
Subsidiary of the Company shall be deemed to be at the request of the Company.
(g) INDEMNIFIABLE LIABILITIES: shall mean all Expenses and all other
liabilities, damages (including, without limitation, punitive, exemplary, and
the multiplied portion of any damages), judgments, payments, fines, penalties,
amounts paid in settlement and awards paid or incurred that arise out of, or in
any way relate to, any Indemnifiable Event.
(h) PERSON: shall mean any person or entity of any nature whatsoever,
specifically including an individual, a firm, a company, a corporation, a
partnership, a trust or other entity. A Person, together with that Person's
Affiliates and Associates (as those terms are defined in Rule 12b-2 under the
Exchange Act), and any Persons acting as a partnership, limited partnership,
joint venture, association, syndicate or other group (whether or not formally
organized), or otherwise acting jointly or in concert or in a coordinated or
consciously parallel manner (whether or not pursuant to any express agreement),
for the purpose of acquiring, holding, voting or disposing of securities of the
Company with such Person, shall be deemed a single "Person."
(i) POTENTIAL CHANGE IN CONTROL: shall be deemed to have occurred if
(i) the Company enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control; (ii) any Person (including the
Company) publicly announces an intention to take or to consider taking actions
that, if consummated, would constitute a Change in Control; or (iii) the Board
of Directors of the Company adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
3
(j) 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 (including Special Counsel referred
to in Section 3) who is not a party to the particular Claim for which
Indemnitee is seeking indemnification.
(k) SPECIAL COUNSEL: shall mean special, independent counsel selected
by Indemnitee and approved by the Company (which approval shall not be
unreasonably withheld), and who has not otherwise performed services for the
Company or for Indemnitee within the last three years (other than as Special
Counsel under this Agreement or similar agreements).
(l) SUBSIDIARY: shall mean, with respect to any Person, any
corporation or other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly or indirectly,
by that Person.
(m) VOTING SECURITIES: shall mean any securities that vote generally
in the election of directors, in the admission of general partners, or in the
selection of any other similar governing body.
2. INDEMNIFICATION AND EXPENSE ADVANCEMENT.
(a) The Company shall indemnify Indemnitee and hold Indemnitee
harmless to the fullest extent permitted by law, as soon as practicable but in
any event no later than 30 days after written demand is presented to the
Company, from and against any and all Indemnifiable Liabilities.
Notwithstanding the foregoing, the obligations of the Company under this
Section 2(a) shall be subject to the condition that the Reviewing Party shall
not have determined (in a written opinion, in any case in which Special Counsel
is involved) that Indemnitee is not permitted to be indemnified under
applicable law. Nothing contained in this Agreement shall require any
determination under this Section 2(a) to be made by the Reviewing Party prior
to the disposition or conclusion of the Claim against the Indemnitee.
(b) If so requested in writing by Indemnitee, the Company shall
advance to Indemnitee all Expenses incurred by Indemnitee (or, if applicable,
reimburse Indemnitee for any and all Expenses incurred by Indemnitee and
previously paid by Indemnitee) (an "Expense Advance") within ten business days
after such request and delivery by Indemnitee of an undertaking to repay
Expense Advances if and to the extent such undertaking is required by
applicable law prior to the Company's payment of Expense Advances. The Company
shall be obligated from time to time at the request of Indemnitee to make or
pay an Expense Advance in advance of the final disposition or conclusion of any
Claim. In connection with any request for an Expense Advance, if requested by
the Company, Indemnitee or Indemnitee's counsel shall submit an affidavit
stating that the Expenses to which the Expense Advances relate are reasonable.
Any dispute as to the reasonableness of any Expense shall not delay an Expense
Advance by the Company. If, when, and to the extent that the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified with
respect to a Claim under applicable law, the Company shall be entitled to be
reimbursed by Indemnitee and Indemnitee hereby agrees to reimburse the Company
without interest (which agreement shall be an
4
unsecured obligation of Indemnitee) for all related Expense Advances
theretofore made or paid by the Company; provided, however, that if Indemnitee
has commenced legal proceedings in a court of competent jurisdiction to secure
a determination that Indemnitee could 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, and the Company shall be obligated to continue to make Expense
Advances, until a final judicial determination is made with respect thereto (as
to which all rights of appeal therefrom have been exhausted or lapsed). If
there has not been a Potential Change in Control or a Change in Control, the
Reviewing Party shall be selected by the Board of Directors of the Company. If
there has been a Potential Change in Control or a Change in Control, the
Reviewing Party shall be advised by or shall be Special Counsel referred to in
Section 3 hereof, if and as Indemnitee so requests. 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
part under applicable law, Indemnitee shall have the right to commence
litigation in any court in the states of Texas or Delaware having subject
matter jurisdiction thereof and in which venue is proper seeking an initial
determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof, 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.
3. CHANGE IN CONTROL. The Company agrees that, if there is a Potential
Change in Control or a Change in Control and if Indemnitee requests in writing
that Special Counsel advise the Reviewing Party or be the Reviewing Party, then
the Company shall not (i) deny any indemnification payments (and Expense
Advances shall continue to be paid by the Company pursuant to Section 2(b))
that Indemnitee requests or demands under this Agreement or any other agreement
or law now or hereafter in effect relating to Claims for Indemnifiable Events,
or (ii) request or seek reimbursement from Indemnitee of any indemnification
payment or Expense Advances unless, in either case, Special Counsel has
rendered its written opinion to the Company and Indemnitee that the Company was
not or is not permitted under applicable law to pay Indemnitee and to allow
Indemnitee to retain such indemnification payment or Expense Advances. However,
if Indemnitee has commenced legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee could be indemnified
under applicable law, any determination made by Special Counsel 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, and the Company shall be obligated to continue to make Expense
Advances, until a final judicial determination is made with respect thereto (as
to which all rights of appeal therefore have been exhausted or lapsed). The
Company agrees to pay the reasonable fees of Special Counsel and to indemnify
Special Counsel against any and all expenses (including attorneys' fees),
claims, liabilities and damages arising out of or relating to this Agreement or
Special Counsel's engagement pursuant hereto.
4. ESTABLISHMENT OF TRUST. In the event of a Potential Change in Control
or a Change in Control, the Company shall, upon written request by Indemnitee,
create a trust for the benefit of Indemnitee (the "Trust") and from time to
time upon written request of Indemnitee shall fund the
5
Trust in an amount equal to all Indemnifiable Liabilities reasonably
anticipated at the time to be incurred in connection with any Claim. The amount
to be deposited in the Trust pursuant to the foregoing funding obligation shall
be determined by the Reviewing Party. The terms of the Trust shall provide
that, upon a Change in Control, (i) the Trust shall not be revoked or the
principal thereof invaded, without the written consent of Indemnitee; (ii) the
trustee of the Trust shall advance, within ten business days of a request by
Indemnitee, any and all Expenses to Indemnitee (and Indemnitee hereby agrees to
reimburse the Trust under the circumstances in which Indemnitee would be
required to reimburse the Company for Expense Advances under this Agreement);
(iii) the Trust shall continue to be funded by the Company in accordance with
the funding obligation set forth above; (iv) the trustee of the Trust shall
promptly pay to Indemnitee all amounts for which Indemnitee shall be entitled
to indemnification pursuant to this Agreement or otherwise; and (v) all
unexpended funds in that Trust shall revert to the Company upon a final
determination by the Reviewing Party or a court of competent jurisdiction, as
the case may be, that Indemnitee has received amounts, if any, which fully
satisfy the Company's obligation to indemnify Indemnitee under the terms of
this Agreement. The trustee of the Trust shall be chosen by Indemnitee. Nothing
in this Section 4 shall relieve the Company of any of its obligations under
this Agreement.
5. INDEMNIFICATION FOR ADDITIONAL EXPENSES. The Company shall indemnify
Indemnitee against any and all costs and expenses (including attorneys' and
expert witnesses' fees) and, if requested by Indemnitee, shall (within two
business days of that request) advance those costs and expenses to Indemnitee,
that are incurred by Indemnitee if Indemnitee, whether by formal proceedings or
through demand and negotiation without formal proceedings: (a) seeks to enforce
Indemnitee's rights under this Agreement, (b) seeks to enforce Indemnitee's
rights to expense advancement or indemnification under any other agreement or
provision of the Company's Certificate of Incorporation (the "Certificate of
Incorporation"), or Bylaws (the "Bylaws"), now or hereafter in effect relating
to Claims for Indemnifiable Events, or (c) seeks recovery under any directors'
and officers' liability insurance policies maintained by the Company, in each
case regardless of whether Indemnitee ultimately prevails. To the fullest
extent permitted by law, the Company waives any and all rights that it may have
to recover its costs and expenses from Indemnitee.
6. PARTIAL INDEMNITY. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some, but not all, of
Indemnitee's Indemnifiable Liabilities, the Company shall indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.
7. CONTRIBUTION.
(a) CONTRIBUTION PAYMENT. To the extent the indemnification provided
for under any provision of this Agreement is determined (in the manner
hereinabove provided) not to be permitted under applicable law, the Company, in
lieu of indemnifying Indemnitee, shall, to the extent permitted by law,
contribute to the amount of any and all Indemnifiable Liabilities incurred or
paid by Indemnitee for which such indemnification is not permitted. The amount
the Company contributes shall be in such proportion as is appropriate to
reflect the relative fault of Indemnitee, on the one hand, and of the Company
and any and all other parties (including officers and directors
6
of the Company other than Indemnitee) who may be at fault (collectively,
including the Company, the "Third Parties"), on the other hand.
(b) RELATIVE FAULT. The relative fault of the Third Parties and the
Indemnitee shall be determined (i) by reference to the relative fault of
Indemnitee as determined by the court or other governmental agency or (ii) to
the extent such court or other governmental agency does not apportion relative
fault, by the Reviewing Party (which shall include Special Counsel) after
giving effect to, among other things, the relative intent, knowledge, access to
information and opportunity to prevent or correct the relevant events, of each
party, and other relevant equitable considerations. The Company and Indemnitee
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or by any other method of allocation which does take
account of the equitable considerations referred to in this Section 7(b).
8. BURDEN OF PROOF. In connection with any determination by the Reviewing
Party or otherwise as to whether Indemnitee is entitled to be indemnified under
any provision of this Agreement or to receive contribution pursuant to Section
7 of this Agreement, to the extent permitted by law the burden of proof shall
be on the Company to establish that Indemnitee is not so entitled.
9. NO 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, or an
entry of an order of probation prior to judgment shall not create a presumption
(other than any presumption arising as a matter of law that the parties may not
contractually agree to disregard) 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.
10. NON-EXCLUSIVITY. The rights of Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Bylaws or
Certificate of Incorporation or the Delaware General Corporation Law or
otherwise. To the extent that a change in the Delaware General Corporation Law
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Bylaws or Certificate of
Incorporation and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
that change. Indemnitee's rights under this Agreement shall not be diminished
by any amendment to the Certificate of Incorporation or Bylaws, or of any other
agreement or instrument to which Indemnitee is not a party, and shall not
diminish any other rights which Indemnitee now or in the future has against the
Company.
11. LIABILITY INSURANCE. Except as otherwise agreed to by the Company and
Indemnitee in a written agreement, to the extent the Company maintains an
insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee shall be covered by that policy or those policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for any Company director or officer.
7
12. PERIOD OF LIMITATIONS. No action, lawsuit or proceeding may be brought
against Indemnitee or Indemnitee's spouse, heirs, executors or personal or
legal representatives, nor may any cause of action be asserted in any such
action, lawsuit or proceeding, by or on behalf of the Company, after the
expiration of two years after the statute of limitations commences with respect
to Indemnitee's act or omission which gave rise to the action, lawsuit,
proceeding or cause of action; provided, however, that, if any shorter period
of limitations is otherwise applicable to any such action, lawsuit, proceeding
or cause of action, the shorter period shall govern.
13. AMENDMENTS. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any provision of this Agreement shall be effective unless
in a writing signed by the party granting the waiver. 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 that waiver
constitute a continuing waiver.
14. OTHER SOURCES. Indemnitee shall not be required to exercise any rights
that Indemnitee may have against any other Person (for example, under an
insurance policy) or before Indemnitee enforces his rights under this
Agreement. However, to the extent the Company actually indemnifies Indemnitee
or advances him Expenses, the Company shall be subrogated to the rights of
Indemnitee and shall be entitled to enforce any such rights which Indemnitee
may have against third parties. Indemnitee shall assist the Company in
enforcing those rights if it pays his costs and expenses of doing so. If
Indemnitee is actually indemnified or advanced Expenses by any third party,
then, for so long as Indemnitee is not required to disgorge the amounts so
received, to that extent the Company shall be relieved of it obligation to
indemnify Indemnitee or advance Indemnitee Expenses.
15. BINDING EFFECT. 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
or assets of the Company), spouses, heirs and personal and legal
representatives. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as an officer or director of the Company or
another enterprise at the Company's request.
16. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, that provision shall be fully severable; this Agreement shall
be construed and enforced as if that illegal, invalid or unenforceable
provision had never comprised a part hereof; and the remaining provisions shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of that illegal, invalid or unenforceable provision, there
shall be added automatically as a part of this Agreement a provision as similar
in terms to the illegal, invalid or unenforceable provision as may be possible
and be legal, valid and enforceable.
17. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in that state without giving effect to the
principles of conflicts of laws.
8
18. HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
19. NOTICES. Whenever this Agreement requires or permits notice to be
given by one party to the other, such notice must be in writing to be effective
and shall be deemed delivered and received by the party to whom it is sent upon
actual receipt (by any means) of such notice. Receipt of a notice by the
Secretary of the Company shall be deemed receipt of such notice by the Company.
20. COMPLETE AGREEMENT. This Agreement constitutes the complete
understanding and agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings between
the parties with respect to the subject matter hereof.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but in making proof
hereof it shall not be necessary to produce or account for more than one such
counterpart.
[THE REMAINDER OF PAGE IS INTENTIONALLY BLANK]
9
EXECUTED as of the date first written above.
XXXXXXXX XXXX COMPANY
By: /s/ XXXXXXX X. XXX
---------------------------------------
Xxxxxxx X. Xxx, Vice President
INDEMNITEE
/s/ XXXXXX X. XXXXX
---------------------------------------
Xxxxxx X. Xxxxx
10
SCHEDULE
INDEMNIFICATION AGREEMENTS
Following is a list identifying agreements with certain officers and
directors of the Company substantially identical to the Indemnification
Agreement (the "Filed Agreement") dated September 21, 1997 between the Company
and Xxxxxx X. Xxxxx filed herewith together with the material differences
between those agreements and the Filed Agreement.
INDIVIDUAL DIFFERENCES FROM THE FILED AGREEMENT
--------------------- --------------------------------------------------------
X. Xxxxx Xxxxxxxxx The name of the Indemnitee in the recital is X. Xxxxx
Xxxxxxxxx.
Xxxxxxx X. Xxxxxxxxx The name of the Indemnitee in the recital is Xxxxxxx X.
Xxxxxxxxx.
Xxxxxxx X. Xxxxxx The name of the Indemnitee in the recital is Xxxxxxx X.
Xxxxxx.
Asuka Nakahara The name of the Indemnitee in the recital is Asuka
Nakahara.
Xxxxxxx Xxxxxxxxx The name of the Indemnitee in the recital is Xxxxxxx
Xxxxxxxxx.
Xxxxxx X. Xxxxxxxx The name of the Indemnitee in the recital is Xxxxxx X.
Xxxxxxxx.
Xxxxxx X. Xxxx The name of the Indemnitee in the recital is Xxxxxx X.
Xxxx.
X. XxXxxxxx Xxxxxxxx The name of the Indemnitee in the recital is X.
XxXxxxxx Xxxxxxxx.
Xxxxxxx X. Xxxxxxxx The name of the Indemnitee in the recital is Xxxxxxx X.
Xxxxxxxx. The date of the Agreement is December 16, 1997.
Xxxxx X. Xxxxx The name of the Indemnitee in the recital is Xxxxx X.
Xxxxx. The date of the Agreement is November 24, 1997.
Xxxxxxx X. Xxxxxx The name of the Indemnitee in the recital is Xxxxxxx X.
Xxxxxx. The date of the Agreement is November 24, 1997.
Xxxxx X. Xxxxxxxx The name of the Indemnitee in the recital is Xxxxx X.
Xxxxxxxx. The date of the Agreement is November 24, 1997.
