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EXHIBIT 10-O
INDEMNITY AGREEMENT
THIS AGREEMENT made this 24th day of January 2000, between Veritas DGC
Inc., a Delaware corporation ("Company"), and Xxxxxxx X. Xxxxx ("Indemnitee").
A. The Indemnitee has been requested to serve as a director and/or
officer of the Company. The Company desires the Indemnitee to serve in such
capacity. The Company believes that the Indemnitee's undertaking or continued
undertaking of such responsibilities is important to the Company and that the
protection afforded by this Agreement will enhance the Indemnitee's ability to
discharge such responsibilities under existing circumstances. The Indemnitee is
willing, subject to certain conditions including without limitation the
execution and performance of this Agreement by the Company and the Company's
agreement to provide the Indemnitee at all times the broadest and most favorable
(to Indemnitee) indemnification permitted by applicable law (whether by
legislative action or judicial decision), to serve or to continue to serve in
that capacity.
B. In addition to the indemnification to which the Indemnitee is
entitled under the Restated Certificate of Incorporation (with amendments) of
the Company (the "Certificate") or the Bylaws, as amended, of the Company (the
"Bylaws"), the Company has purchased and currently maintains insurance
protecting its officers and directors and certain other persons (including the
Indemnitee) against certain losses arising out of actual or threatened actions,
suits or proceedings to which such persons may be made or threatened to be made
parties ("D&O Insurance").
NOW, THEREFORE, for and in consideration of the premises, the mutual
promises hereinafter set forth, the reliance of the Indemnitee hereon in
continuing to serve the Company in
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his present capacity and in undertaking to serve the Company in any additional
capacity or capacities, the Company and the Indemnitee agree as follows:
1. Continued Service. Indemnitee will continue to serve, at the will of
the Company and under separate contract, if such exists, as a director and/or
officer so long as he is duly elected and qualified in accordance with the
Bylaws of the Company or until he tenders his resignation.
2. Indemnification. The Company shall indemnify Indemnitee as follows:
(a) The Company shall indemnify and advance Expenses (as
hereinafter defined) to Indemnitee to the fullest extent, and only to the
extent, permitted by applicable law in effect on the date of this Agreement and
to such greater extent as applicable law may thereafter from time to time
permit. The rights of Indemnitee provided under the preceding sentence shall
include, but shall not be limited to, the rights set forth in the other
paragraphs of this Section 2 or any other Sections of this Agreement.
(b) The Company shall indemnify Indemnitee when he is a party
or is threatened to be made a party to any threatened, pending or completed
Proceeding (other than a Proceeding by or in the right of the Company) by reason
of his Corporate Status (as hereinafter defined) against expenses, judgments,
awards, penalties, fines and amounts paid in settlements actually and reasonably
incurred by him or on his behalf in 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 his conduct was unlawful. The termination of any Proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that Indemnitee did not
act
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in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
Proceeding, had reasonable cause to believe that his conduct was unlawful.
(c) The Company shall indemnify Indemnitee when he is a party
or is threatened to be made a party to any threatened, pending or completed
Proceeding by or in the right of the Company to procure a judgment in its favor
by reason of the fact of his Corporate Status 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 and except that no indemnification
shall be made in respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged to be liable to the Company unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in which
such Proceeding was brought shall determine 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 indemnification for such
expenses which the Court of Chancery of the State of Delaware or such other
court shall deem proper.
(d) Notwithstanding any other provision of this Agreement, to
the extent that Indemnitee is, by reason of his Corporate Status, a party to and
is successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful on the merits or otherwise, as to one or more
but less than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf in connection with each successfully resolved claim,
issue or matter. For the purposes of this
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paragraph (d) of this Section 2 and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, wit or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
(e) In the event the indemnity contained in paragraphs (b),
(c) or (d) of this Section 2 is unavailable or insufficient to hold Indemnitee
harmless in a Proceeding described therein, then in accordance with the
non-exclusivity provisions of the Delaware General Corporation law and the
Certificate and Bylaws, and separate from and in addition to, the indemnity
provided elsewhere herein, the Company shall contribute to Expenses, judgements,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by or on behalf of Indemnitee in connection with such Proceeding or any claim,
issue or matter therein, in such proportion as appropriately reflects the
relative benefits received by, and fault of, the Company on the one hand and the
Indemnitee on the other in the acts, transactions or matters to which the
Proceeding relates and other equitable considerations.
(f) The termination of any Proceeding described in paragraphs
(b), (c) or (d) of this Section 2, 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 of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his conduct was unlawful.
(g) Any indemnification under paragraphs (b), (c), (d) or (e)
of this Section 2 (unless ordered by a court) shall be made by the Company only
as authorized in the specific case upon a determination (in accordance with
Section 3 hereof) that indemnification of Indemnitee is
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proper in the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (b), (c), (d) or (e) of this Section 2. Such
determination shall be made (1) by a majority vote of Disinterested Directors
(as hereinafter defined), even though less than a quorum, or (2) if there are no
such directors, or if such directors so direct, by Independent Legal Counsel (as
hereinafter defined) in a written opinion, or (3) by the stockholders. If, with
regard to paragraph (e) of this Section 2, such a determination is not permitted
by law or if a quorum of Disinterested Directors so directs, such determination
shall be made by the Chancery Court of the State of Delaware or the court in
which the Proceeding giving rise to the claim for indemnification is brought.
(h) Expenses incurred by Indemnitee in defending a Proceeding
shall be paid by the Company in advance of the final disposition of such
Proceeding as authorized (in accordance with Section 4 hereof) by the board of
directors in the specific case upon receipt of an undertaking by or on behalf of
Indemnitee to repay such amount if it is ultimately determined that he is not
entitled to be indemnified by the Company under this Agreement or otherwise.
(i) 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 any statute, bylaw, insurance policy,
agreement, judicial determination, vote of stockholders or disinterested
directors or otherwise, both as to action in his Corporate Status and as to
action in another capacity while holding a Corporate Status, and shall continue
after Indemnitee has ceased to be a director, officer, employee or agent, shall
continue for so long as Indemnitee shall be or could become subject to any
possible Proceeding in respect of which Indemnitee is granted rights of
indemnification or advancement of Expenses under this Agreement, and shall inure
to the benefit of his heirs, executors and administrators.
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3. Determination of Right to Indemnification. For purposes of making
the determination in a specific case under paragraph (g) of Section 2 hereof
whether to make indemnification, the board of directors, Independent Legal
Counsel, or stockholders, as the case may be, shall make such determination in
accordance with the following procedure:
(a) To obtain indemnification under this Agreement, Indemnitee
shall submit to the board of directors a sworn statement of request for
indemnification substantially in the form of Exhibit 1 attached hereto and made
a part hereof ("Indemnification Statement") stating that he has met the
applicable standard of conduct set forth in paragraphs (b), (c), (d) or (e) of
Section 2 hereof;
(b) Submission of the Indemnification Statement to the board
of directors shall create a rebuttable presumption that Indemnitee is entitled
to indemnification under this Agreement, and the board of directors, Independent
Legal Counsel, or stockholders, as the case may be, shall within 60 days after
submission of the Indemnification Statement specifically determine that
Indemnitee is so entitled, unless it or they shall possess sufficient evidence
to rebut the presumption that Indemnitee has met the applicable standard of
conduct set forth in paragraph (b), (c), (d) or (e) of Section 2 hereof, which
evidence shall be disclosed to Indemnitee with particularity in a written
statement signed by all persons who participated in the determination and voted
to deny indemnification.
(c) In the event that the determination of entitlement to
indemnification is to be made by Independent Legal Counsel pursuant to this
Section 3, the Independent Legal Counsel shall be selected as provided in this
section 3(c0. The Independent Legal Counsel shall be selected by the Board of
directors, and the Company shall give written notice to Indemnitee advising him
of the identity of the Independent Legal Counsel so selected. Indemnitee may,
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within 7 days after receipt of such written notice of selection shall have been
given, deliver to the Company a written objection to such selection. Such
objection may be asserted only on the ground that the Independent legal Counsel
so selected does not meet the requirements of "Independent Legal Counsel as
defined in Section 6 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. If such written objection is
made, the Independent Legal Counsel so selected shall be disqualified from
action as such. If, within 20 days after submission by Indemnitee of a written
request for indemnification pursuant to Section 3(a) of this Agreement, no
Independent Legal Counsel shall have been selected, or if selected shall have
been objected to, in accordance with Section 3(c), either the Company or
Indemnitee may petition the Court of Chancery of the State of Delaware for the
appointment as Independent Legal Counsel of a person selected by such court or
by such other person as such court shall designate, and the person so appointed
shall act as Independent Legal Counsel under Section 3(b) of this Agreement, and
the Company shall pay all reasonable fees and expenses incident to the
procedures of this Section 3(c), regardless of the manner in which such
Independent Legal Counsel was selected or appointed.
4. Authorization of Advancement of Expenses. For purpose of determining
whether to authorize advancement of expenses in a specific case pursuant to
paragraph (h) of Section 2 hereof, the board of directors shall make such
determination in accordance with the following procedure:
(a) Indemnitee may submit to the board of directors a request
for advancement of expenses substantially in the form of Exhibit 2 attached
hereto and made a part hereof ("Undertaking"), stating that (i) he has
reasonably incurred or will reasonably incur actual expenses in defending a
Proceeding, and (ii) he undertakes to repay such amount if it is
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ultimately determined that he is not entitled to be indemnified by the Company
under this Agreement or otherwise;
(b) Upon receipt of the Undertaking the board of directors
shall within 14 days authorize immediate payment of the Expenses stated in the
Undertaking.
5. Merger, Consolidation or Change in Control. In the event that the
Company shall be a constituent corporation in a consolidation or merger, whether
the Company is the resulting or surviving corporation or is absorbed, or if
there is a change in control of the Company as defined in Section 6 hereof,
Indemnitee shall stand in the same position under this Agreement with respect to
the resulting, surviving or changed corporation as he would have with respect to
the Company if its separate existence had continued or if there had been no
change in the control of the Company.
6. Certain Definitions. For purposes of this Agreement, the following
definitions apply herein:
(a) "change of control" shall include any change in the
ownership of a majority of the capital stock of the Company or in the
composition of a majority of the members of the board of directors of the
Company.
(b) "Corporate Status" describes the status of a person who is
or was a director, officer, agent or fiduciary of the Company or of any other
corporation, limited liability company, partnership, joint venture, trust,
employee benefit plan or other enterprise (including civic, non-profit or
charitable organizations, whether or not incorporated), which such person is or
was serving at the request of the Company.
(c) "Disinterested Director" means a director of the company
who is not and was not at any time a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
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(d) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, 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 or investigating a Proceeding.
(e) "Fines" shall include any excise taxes assessed on
Indemnitee with respect to any employee benefit plan.
(f) "Independent Legal Counsel" means a law firm, or a member
of a law firm, that is experienced in matters of corporate law and neither
presently is, nor in the past five years has been retained to represent (i) the
Company or 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 Legal 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 Indemnitee in an act in to determine 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.
(h) "serving at the request of the Company" shall include any
service at the request or with the express or implied authorization of the
Company, as a director, officer, employee or agent of the Company which imposes
duties on, or involves services by, Indemnitee with respect to an enterprise,
its participants or beneficiaries; and if Indemnitee acted in good
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faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of such enterprise," he shall be deemed to have
acted in a manner "not opposed to the best interests of the Company" as referred
to in this Agreement.
7. D&O Insurance. The Company represents that it has purchased or
currently maintains and will maintain (except as hereinafter provided) insurance
protecting its officers and directors and certain other persons (including the
Indemnitee) against certain losses arising out of actual or threatened
Proceedings to which such persons may be made or threatened to be made parties
("D&O Insurance"). Although there can be no assurance as to the continuation or
renewal of the D&O Insurance or that any such D&O Insurance will provide
coverage for losses to which the Indemnitee may be exposed, the Company will use
commercially reasonable efforts, taking into consideration availability of D&O
Insurance in the marketplace, to continue D&O Insurance in effect at current
levels for the duration of Indemnitee's service and for six (6) years
thereafter.
8. Reliance by Indemnitee. The Company expressly confirms and agrees
that it has entered into this Agreement and assumed the obligations imposed on
it hereby in order to induce Indemnitee to serve or continue to serve as a
director and/or officer of the Company, and acknowledges that Indemnitee is
relying up-on this Agreement in serving or continuing to serve in such capacity.
9. Attorneys' Fees. In the event that Indemnitee institutes any legal
action to enforce his rights or collect moneys due under this Agreement or to
recover damages for breach of this Agreement, Indemnitee, if he prevails in
whole or in part, shall be entitled to recover from the Company all attorneys'
fees and disbursements incurred by him.
10. Severability. If any provision of this Agreement or the application
of any
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provision hereof to any person or circumstances is held invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to any conflict
of law rules or principle that might refer to the laws of another state or
country.
12. Modification; Survival. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof. This Agreement
may be modified only by an instrument in writing signed by both parties hereto.
The provisions of this Agreement shall survive the termination of Indemnitee's
service as a director and/or executive officer of the Company.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement and the Company has set its seal as of the date first above written.
COMPANY:
Veritas DGC Inc.
(Corporate Seal)
By:
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Xxxxx X. Xxxxxx
Chairman
INDEMNITEE:
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Xxxxxxx X. Xxxxx
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EXHIBIT 1
STATEMENT OF REQUEST FOR INDEMNIFICATION
I, Xxxxxxx X. Xxxxx, submit this Statement pursuant to the Indemnity
Agreement dated January 24, 2000, between Veritas DGC Inc., a Delaware
corporation ("Company"), and the undersigned (the "Agreement").
1. I am requesting indemnification against Expenses (as defined in the
Agreement) and, with respect to any action not by or in the right of the
Company, judgments, fines, penalties and amounts paid in settlement, all of
which have been actually and reasonably incurred by me in connection with a
certain Proceeding (as defined in the Agreement) to which I am a party or am
threatened to be made a party by reason of the fact of my Corporate Status (as
defined in the Agreement).
2. With respect to all matters related to any such Proceeding, I acted
in good faith and in a manner I reasonably believed to be or not opposed to the
best interests of the Company, and, with respect to any criminal Proceeding, I
had no reason to believe that my conduct was unlawful.
4. I am requesting indemnification against the following liabilities:
.
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Xxxxxxx X. Xxxxx
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EXHIBIT 2
STATEMENT OF UNDERTAKING
I, Xxxxxxx X. Xxxxx, submit this Statement pursuant to the Indemnity
Agreement dated January 24, 2000, between Veritas DGC Inc., a Delaware
corporation ("Company"), and the undersigned (the "Agreement").
1. I am requesting advancement of certain actual Expenses (as defined
in the Agreement) which I have reasonably incurred or will reasonably incur in
defending a Proceeding.
2. I hereby undertake to repay this advancement of Expenses if it is
ultimately determined that I am not entitled to be indemnified by the Company.
7. The expenses for which advancement is requested are as follows:
.
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Xxxxxxx X. Xxxxx
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