Exhibit 10.1
AMENDED AND RESTATED INDEMNIFICATION AGREEMENT
This Amended and Restated Indemnification Agreement (this "AGREEMENT"),
dated as of February 3, 2004, by and between Technical Olympic USA, Inc., a
Delaware corporation f/k/a Newmark Homes Corp. (the "COMPANY") and
[________________] (the "Indemnitee").
RECITALS
A. It is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify persons serving as directors of
the Company to the fullest extent permitted by applicable law so that they will
serve or continue to serve as directors of the Company free from undue concern
that they will not be so indemnified.
B. The Indemnitee was asked to serve on the board of directors of the
Company (the "BOARD OF DIRECTORS") and was willing to serve on the Board of
Directors on the condition that he be so indemnified. Consequently, the Company
and the Indemnitee entered into that certain Indemnification Agreement effective
as of March 1, 2002 (the "INDEMNIFICATION AGREEMENT").
C. The Indemnitee is willing to continue to serve on the Board of
Directors so long as the Company continues to indemnify him.
D. Due to the merger of Newmark Homes Corp. with and into the Company,
the Indemnitee and the Company believe it is in their best interest to amend and
restate the Indemnification Agreement.
E. To the extent permitted by law, this Agreement is a supplement to
and in furtherance of the certificate of incorporation of the Company and
provisions of the bylaws or resolutions adopted pursuant thereto, and shall not
be deemed a substitute therefor, nor to diminish or abrogate any rights of the
Indemnitee thereunder.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and the Indemnitee do hereby covenant and agree as
follows:
Section 1. DEFINITIONS. As used in the foregoing Recitals and in this
Agreement, the following terms will have those meanings set forth in this
Section unless the context dictates otherwise.
(a) "Affiliate" means, with respect to any person or entity,
any person or entity directly or indirectly controlling, controlled by or under
common control with such person or entity. For purposes hereof, "control"
(including, with correlative meaning, the terms "controlling", "controlled by"
and "under common control with") means the possession, directly or indirectly,
of the power to direct or cause the direction of management and policies of such
Person, by contract or otherwise.
(b) a "Change of Control" shall mean the happening after the
date of this Agreement of any of the following events:
(i) if any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the
"EXCHANGE ACT"), or any successor provisions to either of the preceding),
including any individual, entity or group agreeing to act together for the
purpose of acquiring, holding, voting or disposing of securities (as defined in
Rule l3d-5(b)(1) under the Exchange Act) other than Technical Olympic S.A. or an
Affiliate of Technical Olympic S.A., becomes the "beneficial owner" (as such
term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of 50% or more of either (A) the then outstanding shares of common stock of the
Company (the "OUTSTANDING COMPANY COMMON STOCK"), or (B) the combined voting
power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "OUTSTANDING COMPANY VOTING POWER");
PROVIDED, HOWEVER, that for purposes of this subsection (i) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company shall not constitute a
Change in Control; or
(ii) individuals who, as of the date of this
Agreement, constitute the Board of Directors (the "INCUMBENT BOARD") cease for
any reason not to constitute at least a majority of the Board of Directors;
PROVIDED, HOWEVER, that any individual becoming a director subsequent to the
date hereof whose election, 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 shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board of Directors; and
PROVIDED, FURTHER, that any change in the composition of the Board of Directors
instituted or approved by the holder, either directly or indirectly, of a
majority of the Outstanding Company Voting Power on the date hereof shall not
constitute a Change of Control; or
(iii) consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "BUSINESS COMBINATION"), in each case, unless,
following such Business Combination all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Power immediately prior to
such Business Combination, or their respective Affiliates, beneficially own,
directly or indirectly, more than 50% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries); or
(iv) approval by the shareholders of the Company of a
liquidation or dissolution of the Company.
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(c) "Corporate Status" describes the status of a person who is
or was a director of the Company or is or was serving in such capacity, at the
request of the Company, of another corporation, partnership, joint venture,
trust or other enterprise.
(d) "Disinterested Director" means a director of the Company
who is not and was not a party to, or otherwise involved in, the Proceeding for
which indemnification is sought by the Indemnitee.
(e) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs and printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, or being or preparing to be a witness in
a Proceeding.
(f) "Independent Counsel" means a law firm, or a member of a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five (5) years has been, retained to represent:
(i) the Company or the Indemnitee in any matter material to either such party,
or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term "Independent
Counsel" shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or the Indemnitee in an action to determine the
Indemnitee's rights under this Agreement.
(g) "Proceeding" includes any action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing or
any other proceeding whether civil, criminal, administrative or investigative.
Section 2. SERVICES BY THE INDEMNITEE. The Indemnitee agrees to
continue to serve at the request of the Company as a director of the Company
(including, without limitation, service on one or more committees of the Board
of Directors). The Indemnitee may at any time and for any reason resign from any
such position.
Section 3. INDEMNIFICATION (GENERAL). The Company shall indemnify and
advance Expenses to the Indemnitee as provided in this Agreement and to the
fullest extent permitted by applicable law in effect on the date hereof and to
such greater extent as applicable law may thereafter from time to time permit.
The rights of the Indemnitee provided under the preceding sentence shall
include, but shall not be limited to, the rights set forth in other sections of
this Agreement.
Section 4. PROCEEDINGS OTHER THAN PROCEEDING BY OR IN THE RIGHT OF THE
COMPANY. The Indemnitee shall be entitled to the right of indemnification
provided in this Section 4 if, by reason of his Corporate Status, he is, or is
threatened to be made, a party to or participant in any threatened, pending or
completed Proceeding, other than a Proceeding by or in the right of the Company.
Under this Section 4, the Company will indemnify the Indemnitee against
Expenses, judgments, penalties, fines and amounts paid in settlement (as and to
the extent permitted hereunder) actually and reasonably incurred by him or on
his behalf in
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connection with such Proceeding or any claim, issue or matter
therein, if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company and, with respect to any
criminal Proceeding, had no reasonable cause to believe this conduct was
unlawful.
Section 5. PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 5 if, by reason of his Corporate Status, he is, or is threatened to be
made, party to or participant in any threatened, pending or completed Proceeding
brought by or in the right of the Company to procure a judgment in its favor.
Pursuant to this Section 5, the Indemnitee shall be indemnified against Expenses
actually and reasonably incurred by him or on his behalf in connection with such
Proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company. Notwithstanding the
foregoing, no indemnification against such Expenses shall be made in respect of
any claim, issue or matter in such Proceeding as to which the Indemnitee shall
have been adjudged to be liable to the Company, or if applicable law prohibits
such indemnification; PROVIDED, HOWEVER, that if applicable law so permits,
indemnification against Expenses shall nevertheless be made by the Company in
such event if and to the extent that the court in which such Proceeding shall
have been brought or is pending, shall determine upon application that, despite
the adjudication of liability, but in view of all the circumstances of the case,
the Indemnitee is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper.
Section 6. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR
PARTLY SUCCESSFUL.
(a) To the extent that the Indemnitee is, by reason of his
Corporate Status, a party to and is successful, on the merits, in any
Proceeding, the Company will indemnify the Indemnitee against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith. If the Indemnitee is not wholly successful in defense of any
Proceeding but is successful on the merits, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify the
Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf in connection with each such successfully resolved claim, issue or
matter. For purposes of this Section 6(a) and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter. The provisions of this Section 6(a) are subject to
Section 6(b) hereof.
(b) In no event shall the Indemnitee be entitled to
indemnification under Section 6(a) hereof with respect to a claim, issue or
matter to the extent (i) applicable law prohibits such indemnification, or (ii)
an admission is made by the Indemnitee in writing to the Company or in such
Proceeding or a determination is made in such Proceeding that the standard of
conduct required for Indemnification under this Agreement has not been met with
respect to such claim, issue or matter.
Section 7. INDEMNIFICATION FOR EXPENSES AS A WITNESS. Notwithstanding
any provisions herein to the contrary, to the extent that the Indemnitee is, by
reason of his Corporate
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Status, a witness in any Proceeding, he shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf in connection
therewith.
Section 8. ADVANCEMENT OF EXPENSES.
(a) The Company shall advance all reasonable Expenses incurred
by or on behalf of the Indemnitee in connection with any Proceeding within ten
(10) days after the receipt by the Company of a statement or statements from the
Indemnitee requesting such advance or advances from time to time, whether prior
to or after the final disposition of such Proceeding; PROVIDED, HOWEVER, that
the person or persons or entity making the determination of the Indemnitee's
entitlement to indemnification under Section 9 (the "REVIEWING PARTY") hereof
has not determined that the Indemnitee would not be permitted to be indemnified
under applicable law. Such statement or statements shall reasonably evidence the
Expenses incurred by or on behalf of the Indemnitee and shall include or be
preceded or accompanied by an undertaking by or on behalf of the Indemnitee to
repay any Expenses advanced if it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified against such Expenses. The Company
shall accept any such undertaking without reference to the financial ability of
the Indemnitee to make repayment and without regard to the prospect of whether
the Indemnitee may ultimately be found to be entitled to indemnification under
the provisions of this Agreement.
(b) The Company's obligation to advance Expenses pursuant to
Section 8(a) hereof shall be subject to the condition that, if, when and to the
extent that the Reviewing Party determines that the Indemnitee would not be
permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by the Indemnitee (who agrees to reimburse the
Company) for all such amounts theretofore paid; PROVIDED, HOWEVER, that if the
Indemnitee has commenced or thereafter commences legal proceedings pursuant to
Section 11 hereof to secure a determination that the Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
to the contrary shall not be binding and the Indemnitee shall not be required to
reimburse the Company for any Expenses advanced until a final judicial
determination is made with respect thereto. Any required reimbursement of
Expenses by the Indemnitee shall be made by the Indemnitee to the Company within
ten (10) days following the determination that the Indemnitee would not be
entitled to indemnification.
Section 9. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.
(a) To obtain indemnification under this Agreement, the
Indemnitee shall submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to what extent
the Indemnitee is entitled to indemnification. The Secretary of the Company
shall, promptly upon receipt of such a request for indemnification, advise the
Board of Directors in writing that the Indemnitee has requested indemnification.
(b) Upon written request by the Indemnitee for indemnification
pursuant to Section 9(a) hereof, a determination, if required by applicable law,
with respect to the Indemnitee's entitlement thereto shall be made in the
specific case:
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(i) by the Board of Directors by a majority vote or
consent of Disinterested Directors, even though less than a quorum; or
(ii) by majority vote or consent of a committee of
Disinterested Directors duly designated by the Board of Directors, even though
less than a quorum (in which designation of the committee, the directors,
whether or not Disinterested Directors, may participate); or
(iii) by Independent Counsel, as selected pursuant to
Section 9(c) hereof, if there are no Disinterested Directors, or if the
Disinterested Directors so direct, in a written opinion to the Board of
Directors, a copy of which opinion shall be delivered to the Indemnitee; or
(iv) by vote or consent of the holders of a majority
of the Company's common stock that are represented in person or by proxy and
entitled to vote at a meeting called for such purpose.
(c) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel, the Independent Counsel
shall be selected as provided in this Section 9(c). If a Change of Control has
not occurred, the Independent Counsel shall be selected by the Board of
Directors (including a vote of a majority of the Disinterested Directors if
obtainable), and the Company shall give written notice to the Indemnitee
advising him of the identity of the Independent Counsel so selected. If a Change
of Control has occurred, the Independent Counsel shall be selected by the
Indemnitee (unless the Indemnitee shall request that such selection be made by
the Board of Directors, in which event the preceding sentence shall apply), and
approved by the Board of Directors (which approval shall not be unreasonably
withheld). If (i) an Independent Counsel is to make the determination of
entitlement pursuant to this Section 9, and (ii) within twenty (20) days after
submission by the Indemnitee of a written request for indemnification pursuant
to Section 9(a) hereof, no Independent Counsel shall have been selected, either
the Company or the Indemnitee may petition the appropriate court of the State of
Delaware or another court of competent jurisdiction (the "COURT") for the
appointment of an Independent Counsel to be selected by the Court or by such
other person as the Court shall designate. The fees and expenses incurred by the
Independent Counsel in making any determination shall be borne solely by the
Company regardless of the results of any determination and, if requested by the
Independent Counsel, the Company shall give such Independent Counsel an
appropriate written agreement with respect to the payment of the fees an
expenses and such other matters as may be reasonably requested by the
Independent Counsel. Furthermore, the Company shall pay all reasonable fees and
expenses in connection with the procedures set forth in this Section 9(c)
regardless of the manner in which such Independent Counsel was appointed. Upon
the due commencement of any judicial proceeding or arbitration pursuant to
Section 11(a)(iii) hereof, the Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity.
Section 10. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) In making a determination with respect to whether the
Indemnitee is entitled to indemnification hereunder, the Reviewing Party making
such determination shall
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presume that the Indemnitee is entitled to indemnification under this Agreement
if the Indemnitee has submitted a request for indemnification in accordance with
Section 9(a) hereof, and anyone seeking to overcome this presumption shall have
the burden of proof and the burden of persuasion, by clear and convincing
evidence.
(b) Subject to the terms of Section 15.4 hereof, the
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of the Indemnitee to
indemnification or create a presumption that the Indemnitee did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interest of the Company and, with respect to any criminal Proceeding,
had reasonable cause to believe that his conduct was unlawful.
(c) For purposes of any determination of good faith, the
Indemnitee shall be deemed to have acted in good faith, if the Indemnitee's
action is based on (i) the records or books of account of the Company, including
financial statements, (ii) information supplied to the Indemnitee by the
officers of the Company in the course of their duties, (iii) the advice of legal
or financial counsel for the Company or the Board of Directors (or any committee
thereof) or (iv) information or records given or reports made by an independent
certified public accountant or by an appraiser or other expert selected by the
Company or the Board of Directors (or any committee thereof). The provisions of
this Section 10(c) shall not be deemed to be exclusive or to limit in any way
the other circumstances in which the Indemnitee may be deemed or found to have
met the applicable standard of conduct set forth in this Agreement. In addition,
the knowledge and/or actions, or failure to act, of any other director, trustee,
partner, managing member, fiduciary, officer, agent or employee of the Company
shall not be imputed to the Indemnitee for purposes of determining the right to
indemnification under this Agreement.
Section 11. REMEDIES OF THE INDEMNITEE.
(a) In the event (i) a determination is made pursuant to
Section 9 hereof that the Indemnitee is not entitled to indemnification under
this Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 8 hereof, (iii) the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to Section 9(b) or Section 9(c)
hereof and such determination shall not have been made and delivered in a
written opinion within forty-five (45) days after receipt by the Company of the
request for indemnification, (iv) payment of indemnification is not made
pursuant to Section 7 hereof within ten (10) days after receipt by the Company
of a written request therefor, or (v) payment of indemnification is not made
within ten (10) days after a determination has been made that the Indemnitee is
entitled to indemnification or such determination is deemed to have been made
pursuant to Section 9 or 10 hereof, the Indemnitee shall be entitled to seek an
adjudication in the Court of Chancery of the State of Delaware of his
entitlement to such indemnification or advancement of Expenses. Alternatively,
the Indemnitee, at his option, may seek an award in arbitration to be conducted
by a single arbitrator pursuant to the rules of the American Arbitration
Association. The Indemnitee shall commence such proceeding seeking an
adjudication or an award in arbitration within one hundred eighty (180) days
following the date on which the Indemnitee first has the right to commence such
proceeding pursuant to this Section 11(a); PROVIDED, HOWEVER, that the foregoing
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clause shall not apply in respect of a proceeding brought by the Indemnitee to
enforce his rights under Section 6 hereof.
(b) In the event that a determination is made that the
Indemnitee is not entitled to indemnification pursuant to Section 9 hereof, any
judicial proceeding or arbitration commenced pursuant to this Section 11 shall
be conducted in all respects as a de novo trial, or arbitration, on the merits
and the Indemnitee shall not be prejudiced by reason of that adverse
determination. In any judicial proceeding or arbitration commenced pursuant to
this Section 11, the Company shall have the burden of proving that the
Indemnitee is not entitled to indemnification or advancement of Expenses, as the
case may be, and the Company shall be precluded from referring to or offering
into evidence a determination made pursuant to Section 9 hereof that is adverse
to the Indemnitee's right to indemnification or advancement of Expenses, as the
case may be. If the Indemnitee commences a judicial proceeding or arbitration
pursuant to this Section 11, the Indemnitee shall not be required to reimburse
the Company for any advances pursuant to Section 8 hereof until a final
determination is made with respect to the Indemnitee's entitlement to
indemnification (as to which rights of appeal have been exhausted or lapsed).
(c) If a determination is made or deemed to have been made
pursuant to Section 9 or 10 hereof that the Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 11, absent
(i) a misstatement by the Indemnitee of a material fact, or an omission by the
Indemnitee of a material fact necessary to make the Indemnitee's statement not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 11 that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement.
(e) In the event that the Indemnitee, pursuant to this Section
11, seeks a judicial adjudication of an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Agreement, the
Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company against, any and all Expenses actually and reasonably
incurred by him in such judicial adjudication or arbitration; PROVIDED, HOWEVER,
if the court or arbitrator confirms the decision that the Indemnitee is not
entitled to recover from the Company, then the Expenses incurred by the
Indemnitee in the judicial adjudication or arbitration shall be borne by the
Indemnitee.
(f) Any judicial adjudication or arbitration determined under
this Section 11 shall be final and binding on the parties.
Section 12 NON-DISCLOSURE OF PAYMENTS. Except as expressly required by
the securities laws of the United States of America, neither party shall
disclose any payments under this Agreement unless prior approval of the other
party is obtained. If any payment information must be disclosed, the Company
shall afford the Indemnitee an opportunity to review all such
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disclosures and, if requested, to explain in such statement any mitigating
circumstances regarding the events to be reported.
Section 13 DURATION OF AGREEMENT. This Agreement shall continue for so
long as the Indemnitee may have any liability or potential liability by virtue
of serving as a director of the Company, including, without limitation, the
final termination of all pending Proceedings in respect of which the Indemnitee
is granted rights of indemnification or advancement of Expenses hereunder and of
any Proceeding commenced by the Indemnitee pursuant to Section 11 hereof
relating thereto. This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto and their respective successors
(including any director or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business or assets of the
Company), assigns, spouses, heirs, executors and personal and legal
representatives.
Section 14. MAINTENANCE OF INSURANCE. The Company shall use
commercially reasonable efforts to obtain and maintain in effect during the
entire period for which the Company is obligated to indemnify the Indemnitee
under this Agreement, one or more policies of insurance with reputable insurance
companies to provide the directors of the Company with coverage for losses from
wrongful acts and omissions and to ensure the Company's performance of its
indemnification obligations under this Agreement. The Indemnitee shall be
covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director or officer under
such policy or policies. In all such insurance policies, the Indemnitee shall be
named as an insured in such a manner as to provide the Indemnitee with the same
rights and benefits as are accorded to the most favorably insured of the
Company's directors and officers.
Section 15. MISCELLANEOUS.
Section 15.1 NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE;
SUBROGATION.
(a) The rights of indemnification and to receive advancement
of Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which the Indemnitee may at any time be entitled under
applicable law, the certificate of incorporation, the bylaws, any agreement, a
vote of stockholders or a resolutions of directors, or otherwise. No amendment,
alteration or repeal of this Agreement or any provision hereof shall be
effective as to the Indemnitee with respect to any action taken or omitted by
the Indemnitee in his Corporate Status prior to such amendment, alteration or
repeal.
(b) In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all papers required and take
all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such
rights.
(c) The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable hereunder if and to the
extent that the Indemnitee
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has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.
15.2 SEVERABILITY. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any
section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby;
(b) such provision or provisions will be deemed reformed to the extent necessary
to conform to applicable law and to give maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or enforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
15.3 EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF
EXPENSES. Notwithstanding any other provision of this Agreement, the Indemnitee
shall not be entitled to indemnification or advancement of Expenses under this
Agreement with respect to any Proceeding, or any claim therein, brought or made
by him against the Company except for any claim or Proceeding in respect of this
Agreement and/or the Indemnitee's rights hereunder.
15.4 SETTLEMENT OF CLAIMS. The Company shall not be liable to
indemnify the Indemnitee under this Agreement for any amounts paid in settlement
of any Proceeding affected without the Company's written consent. The Company
will not unreasonably withhold its consent to any proposed settlement. The
Company shall furthermore not be liable to indemnify the Indemnitee under this
Agreement with regard to any judicial award if the Company was not given a
reasonable and timely opportunity, at its expense, to participate in the defense
of such action.
15.5 COUNTERPARTS. This Agreement may be executed in one or
more counterparts (whether by original, photocopy or facsimile signature), each
of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same agreement. Only one such counterpart
executed by the party against whom enforceability is sought needs to be produced
to evidence the existence of this Agreement.
15.6 HEADINGS. The headings of the sections or paragraphs of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part of this Agreement or to affect the construction thereof.
15.7 MODIFICATION AND WAIVER. 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 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.
15.8 NOTICE BY INDEMNITEE. The Indemnitee agrees promptly to
notify the Company in writing upon being served with any summons, citation,
subpoena, complaint,
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indictment, information or other document relating to any Proceeding or matter
which may be subject to indemnification or advancement of Expenses covered
hereunder.
15.9 NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and received for by the party to whom said
notice or other communication shall have been directed, or (ii) mailed by U.S.
certified or registered mail with postage prepaid by overnight courier: (a) if
to the Company: Technical Olympic USA, Inc., 0000 Xxxxxxxxx Xxxx., Xxxxx 000 X,
Xxxxxxxxx, XX 00000, Attention: General Counsel; and (b) if to any other party
hereto, including the Indemnitee, to the address of such party set forth on the
signature page hereof; or to such other address as may have been furnished by
any party to the other(s), in accordance with this Section 15.9.
15.10 GOVERNING LAW; VENUE, ETC.
(a) THE PARTIES AGREE THAT THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE.
(b) ANY "ACTION OR PROCEEDING" (AS SUCH TERM IS DEFINED BELOW)
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE FILED IN AND LITIGATED
SOLELY BEFORE THE COURT OF CHANCERY LOCATED IN THE STATE OF DELAWARE AND EACH
PARTY TO THIS AGREEMENT: (1) GENERALLY AND UNCONDITIONALLY ACCEPTS THE EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND VENUE THEREIN, AND WAIVES TO THE
FULLEST EXTENT PROVIDED BY LAW ANY DEFENSE OR OBJECTION TO SUCH JURISDICTION AND
VENUE BASED UPON THE DOCTRINE OF "FORUM NON CONVENIENS"; AND (2) GENERALLY AND
UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
BY DELIVERY OF CERTIFIED OR REGISTERED MAILING OF THE SUMMONS AND COMPLAINT IN
ACCORDANCE WITH THE NOTICE PROVISIONS OF THIS AGREEMENT. FOR PURPOSES OF THIS
SECTION 15.10, THE TERM "ACTION OR PROCEEDING" IS DEFINED AS ANY AND ALL CLAIMS,
SUITS, ACTIONS, HEARINGS, ARBITRATIONS OR OTHER SIMILAR PROCEEDINGS, INCLUDING
APPEALS AND PETITIONS THEREFROM, WHETHER FORMAL OR INFORMAL, GOVERNMENTAL OR
NON-GOVERNMENTAL, OR CIVIL OR CRIMINAL. THE FOREGOING CONSENT TO JURISDICTION
SHALL NOT CONSTITUTE GENERAL CONSENT TO SERVICE OF PROCESS IN THE STATE FOR ANY
PURPOSE EXCEPT AS PROVIDED ABOVE, AND SHALL NOT BE DEEMED TO CONFER RIGHTS ON
ANY PERSON OTHER THAN THE PARTIES TO THIS AGREEMENT.
(c) The Company acknowledges that the Indemnitee may, as a
result of the Company's breach of its covenants and obligations under this
Agreement, sustain immediate and long-term substantial and irreparable injury
and damage, which cannot be reasonably or adequately compensated by damages at
law. Consequently, the Company agrees that the Indemnitee shall be entitled, in
the event of the Company's breach or threatened breach of its covenants and
obligations hereunder, to obtain equitable relief from a court of competent
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jurisdiction, including enforcement of each provision of this Agreement by
specific performance and/or temporary, preliminary and/or permanent injunctions
enforcing any of the Indemnitee's rights, requiring performance by the Company,
or enjoining any breach by the Company, all without proof of any actual damages
that have been or may be caused by the Indemnitee by such breach or threatened
breach and without the posting of bond or other security in connection
therewith. The Company waives the claim or defense therein that the Indemnitee
has an adequate remedy at law, and the Company shall not allege or otherwise
assert the legal position that any such remedy at law exists. The Company agrees
and acknowledges that: (i) the terms of this Section 15.10(c) are fair,
reasonable and necessary to protect the legitimate interests of the Indemnitee;
(ii) this waiver is a material inducement to the Indemnitee to enter into the
transactions contemplated hereby; (iii) the Indemnitee relied upon this waiver
in entering into this Agreement; and will continue to rely on this waiver in its
future dealings with the Company. The Company warrants and represents that it
has reviewed this provision with its legal counsel, and that it has knowingly
and voluntarily waived its rights referenced in this Section 15.10(c) following
consultation with such legal counsel.
15.11 USAGE OF PRONOUNS. Use of the masculine pronoun shall be
deemed to include usage of the feminine pronoun where appropriate.
SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
ATTEST: TECHNICAL OLYMPIC USA, INC.
By: By:
----------------------------- -------------------------------------
Name: Name:
Title: Title:
INDEMNITEE:
-----------------------------------------
Name:
-----------------------------------
Address:
--------------------------------
--------------------------------
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