INDEMNIFICATION AGREEMENT
This
Indemnification Agreement, dated as of _____________, is made by and between
Cintas Corporation, a Washington corporation (the “Corporation”), and
_________________ (the “Indemnitee”).
RECITALS
A. Indemnitee
is an officer or director of the Corporation and in such capacity is performing
valuable services for the Corporation.
B. The
Corporation and Indemnitee recognize the difficulty in obtaining directors’ and
officers’ liability insurance, the significant cost of such insurance and the
general reduction in the coverage of such insurance.
C. The
Corporation and Indemnitee further recognize the substantial increase in
litigation subjecting officers and directors to expensive litigation risks at
the same time that such liability insurance has been severely
limited.
D. Article
V of its Amended and Restated Bylaws (the “Bylaws”) contains provisions for
indemnification of the Corporation’s directors and officers to the extent
permitted by the Washington Business Corporation Act (the
“Statute”).
E. The
Bylaws and the Statute specifically provide that the indemnification provisions
set forth therein are not exclusive, and thereby contemplate that contracts may
be entered into between the Corporation and the members of its Board of
Directors and its officers with respect to indemnification of such directors and
officers.
F. The
Bylaws provide that the Corporation may maintain, at its expense, insurance to
protect itself and any of its directors and officers against liability asserted
against such persons incurred in such capacity whether or not the Corporation
has the power to indemnify such persons against the same liability under the
Statute.
G. Because the exposure of directors and officers to
litigation risks exceeds the personal resources of such persons, the
Corporation’s policy has been to indemnify officers and directors to the fullest
extent permitted by law, and this Indemnification Agreement is not only
reasonable and prudent but also promotes the best interests of the Corporation
and its stockholders by allowing the Indemnitee to continue to serve without
undue concern for unwarranted claims for damages arising out of their service to
the Corporation.
H. In
order to induce Indemnitee to continue to serve as an officer and/or director,
as the case may be, of the Corporation, the Corporation has agreed to enter into
this Agreement with Indemnitee.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
below, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
Section 1. Generally. To
the fullest extent permitted by the laws of the State of
Washington:
(a) The Corporation shall
indemnify and hold harmless Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to or is involved in (including, without
limitation, as a witness) any pending, threatened or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that Indemnitee is or was, or has agreed to serve as, a director of
the Corporation, or being or having been a director of the Corporation, is or
was serving or has agreed to serve at the request of the Corporation as a
director, officer, employee or agent (which, for purposes hereof, shall include
a trustee, partner or manager or similar capacity) of the Corporation or another
corporation or of a partnership, joint venture, trust, other enterprise
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action or inaction in an official capacity or in any
other capacity while serving in an official capacity. For the
avoidance of doubt, the foregoing indemnification obligation includes, without
limitation, claims for monetary damages against Indemnitee in respect of an
alleged breach of fiduciary duties, to the fullest extent permitted under the
WBCA.
(b) The
indemnification provided by this Section 1 shall be from and against all
expenses, liabilities and losses (including attorneys’ fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement), actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with
such action, suit or proceeding and any appeal therefrom.
(c) Notwithstanding any other provision in this Agreement to
the contrary, the Corporation’s obligation to indemnify Indemnitee is limited as
follows: indemnification under this Agreement shall only
be provided if (A) Indemnitee acted in good faith, and (B) the Indemnitee
reasonably believed (i) in the case of conduct in Indemnitee’s official capacity
with the Corporation, the Indemnitee’s conduct was in the Corporation’s best
interest, and (ii) in all other cases, the Indemnitee’s conduct was at least not
opposed to the Corporation’s best interest, and (C) in the case of any criminal
proceeding, the Indeminitee had no reasonable cause to believe that the
Indemnitee’s conduct was unlawful. A Indemnitee’s conduct with
respect to an employee benefit plan for a purpose the Indemnitee reasonably
believed to be in the interests of the participants in and beneficiaries of the
plan is conduct that satisfies the requirements set forth in subclause (B)(ii),
above.
(d) Notwithstanding
the foregoing provisions of this Section 1, in the case of any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that Indemnitee is or was
a director, officer, employee or agent of the Corporation, or while serving as a
director or officer of the Corporation, is or was serving or has agreed to
serve at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, no indemnification shall be made in respect of any claim,
issue or matter as to which Indemnitee shall be adjudged to be liable to the
Corporation unless, and only to the extent that, the Washington Court or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all of the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses as the Washington Court or such other court shall
deem proper.
(e) Notwithstanding
the foregoing provisions of this Section 1, the Corporation shall not indemnify
any person from or on account of any acts or omissions of such person finally
adjudged to be intentional misconduct or knowing violation of the law by such
person, from conduct of the person in violation of Section 23B.08.310 of the
WBCA or from or on account of any transaction with respect to which it is
finally adjudged that such person personally received a benefit in money,
property or services to which such person was not legally
entitled. In addition, except as provided in Section
8 hereof with respect to proceedings seeking indemnification, the
Corporation shall not indemnify any person with respect to an action, suit or
proceeding initiated by that person unless such action, claim or proceeding was
authorized by the Board of Directors of the Corporation.
(f) Indemnification
under this Agreement shall be made by the Corporation only upon a determination
that indemnification of the Indemnitee is proper in the circumstances because
Indemnitee has met the qualifications required under Section 1(a), above, and
the applicable standard of conduct set forth in Section 1(c)(1), above (the
“indemnification standards”).
(g) Without
limiting the situations in which a person shall be considered to be serving at
the request of the Corporation, a director who serves as a director, officer,
employee or agent of the Corporation or another corporation or other enterprise
that is a subsidiary of the Corporation shall be deemed to be serving at the
request of the Corporation, where “subsidiary” means (i) a corporation or other
enterprise in which a majority of the voting stock or other voting power is
owned or controlled by the Corporation directly or though one or more
subsidiaries or (ii) a corporation or other enterprise which is consolidated on
the Corporation’s financial statements or is reported using the equity
method.
(h) The
termination of any action, suit or 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 satisfy the indemnification
standards.
Section 2. Successful Defense: Partial
Indemnification. To the extent that Indemnitee has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 1 hereof or in defense of any claim, issue or
matter therein, Indemnitee shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred in connection
therewith. For purposes of this Agreement and without limiting the
foregoing, if any action, suit or proceeding is disposed of, on the merits or
otherwise (including a disposition without prejudice), without (i) the
disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee
was
liable to
the Corporation, (iii) a plea of guilty or nolo contendere by Indemnitee, (iv)
an adjudication that Indemnitee did not act in good faith and in a manner
Indemnitee reasonably believed to be in, or not opposed to, the best interest of
the Corporation, and (v) with respect to any criminal proceeding, an
adjudication that Indemnitee had reasonable cause to believe Indemnitee’s
conduct was unlawful, Indemnitee shall be considered for the purposes hereof to
have been wholly successful with respect thereto. If Indemnitee is
entitled under any provision of this Agreement to indemnification by the
Corporation for some or a portion of the expenses, liabilities or losses
(including attorneys’ fees, judgments, fines or amounts paid in settlement)
actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in
connection with any action, suit, proceeding or investigation, or in defense of
any claim, issue or matter therein, and any appeal therefrom but not, however,
for the total amount thereof, the Corporation shall nevertheless indemnify
Indemnitee for the portion of such expenses, liabilities or losses (including
attorneys’ fees, judgments, fines or amounts paid in settlement) to which
Indemnitee is entitled.
Section 3. Determination That
Indemnification Is Proper: Authorization.
(a) Any
indemnification hereunder shall (unless otherwise ordered by a court) be made by
the Corporation unless a determination is made that indemnification of such
person is not proper in the circumstances because he or she has not met the
applicable standard of conduct set forth in Section 1(c) hereof. Any
such determination may be made (i) by a majority vote of a quorum consisting of
the directors not at the time parties to the action, suit or proceeding in
question (“disinterested directors”), (ii) if a quorum cannot be obtained under
subclause (i) by a majority vote of a committee consisting solely of two or more
disinterested directors designated by the Board of Directors, in which
designation directors who are parties may participate, (iii) by special legal
counsel or other persons (A) selected by the Board of Directors or its committee
in the manner described in clauses (i) or (ii) of this sentence or (B) if a
quorum of the Board of Directors cannot be attained under clause (i) and a
committee cannot be designated under clause (ii), selected by majority vote of
the full Board of Directors, in which selection directors who are parties may
participate, (iv) by the shareholders, but shares owned by or voted under the
control of directors who are at the time not disinterested directors may not be
voted on the determination, or (v) by a court of competent
jurisdiction.
(b) If
a Change in Control (as defined below) occurs and results in individuals who
were directors prior to the circumstances giving rise to the Change in Control
for any reason ceasing to constitute a majority of the Board of Directors of the
Corporation, the determination set forth above in Section 3 whether to provide
indemnification shall be made by independent legal counsel and not by the
then-Board of Directors. Under such circumstances, the independent
legal counsel shall be selected jointly by counsel for the Corporation and
counsel for the Indemnitee whose request for indemnification is to be
determined. If the parties’ counsel cannot agree upon the selection
of independent legal counsel within 14 calendar days of the request by
Indemnitee for indemnification, the Indeminitee’s counsel may request that the
presiding judge for the United States District Court for the Southern District
of Ohio select such independent counsel and both the Corporation and Indemnitee
agree to be bound by such selection. The Corporation agrees to pay
the reasonable fees of the independent legal counsel and fully indemnify such
counsel against any and all expenses (including attorneys’ fees), claims,
liabilities and damages arising out of or relating to this Agreement or the
independent legal counsel’s engagement pursuant to this Agreement. For
purposes of this Agreement, a “Change in Control” of the
Corporation shall be deemed to have
occurred if (a) any “person,” as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
other than a trustee or other fiduciary holding securities under an employee
benefit plan of the Corporation and other than Xxxxxxx X. Xxxxxx and Xxxxx X.
Xxxxxxx and their respective heirs, lineal descendants, legatees and legal
representatives of any of the foregoing and the trustee of any bona fide trust
of which one or more of the foregoing are the sole beneficiaries or the grantors
thereof, becomes the “beneficial owner,” as such term is defined in Rule 13d-3
under that Act, directly or indirectly, of securities of the Corporation
representing 25% or more of the combined voting power of the Corporation’s then
outstanding securities; or (b) during any period of one year (not including any
period prior to the execution of this Agreement), individuals who at the
beginning of such period constitute the Board of Directors and any new director
whose election by the Board or Directors or nomination for election by the
Corporation’s shareholders was approved by a vote of at least two-thirds of the
directors then still in office who were either directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof.
Section 4. Advance Payment of Expenses:
Notification and Defense of Claim.
(a) Expenses
(including attorneys’ fees) incurred by Indemnitee in defending a threatened or
pending civil, criminal, administrative or investigative action, suit or
proceeding, or in connection with an enforcement action pursuant to Section
5(b), shall be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding within twenty (20) days after receipt by the
Corporation of (i) a statement or statements from Indemnitee requesting such
advance or advances from time to time, (ii) a written affirmation of the
Indemnitee’s good faith belief that Indemnitee has met the standard of conduct
described in WBCA Section 23B.08.510, and (iii) an undertaking by or on behalf
of Indemnitee to repay such amount or amounts, only if, and to the extent that,
it shall ultimately be determined that Indemnitee is not entitled to be
indemnified by the Corporation as authorized by this Agreement or
otherwise. Such undertaking shall be accepted without reference to
the financial ability of Indemnitee to make such repayment. Advances
shall be unsecured and interest-free.
(b) Promptly
after receipt by Indemnitee of notice of the commencement of any action, suit or
proceeding, Indemnitee shall, if a claim thereof is to be made against the
Corporation hereunder, notify the Corporation of the commencement
thereof. The failure to promptly notify the Corporation of the
commencement of the action, suit or proceeding, or Indemnitee’s request for
indemnification, will not relieve the Corporation from any liability that it may
have to Indemnitee hereunder, except to the extent the Corporation is prejudiced
in its defense of such action, suit or proceeding as a result of such
failure.
(c) In
the event the Corporation shall be obligated to pay the expenses of Indemnitee
with respect to an action, suit or proceeding, as provided in this Agreement,
and timely satisfied its obligation to do so, the Corporation shall be entitled
to assume the defense of such action, suit or proceeding, with counsel
reasonably acceptable to Indemnitee, upon the delivery to Indemnitee of written
notice of its election to do so. After delivery of such notice,
approval of such counsel by Indemnitee and the retention of such counsel by the
Corporation, the Corporation will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by
Indemnitee
with respect to the same action, suit or proceeding, provided that (1)
Indemnitee shall have the right to employ Indemnitee’s own counsel in such
action, suit or proceeding at Indemnitee’s expense and (2) if (i) the employment
of counsel by Indemnitee has been previously authorized in writing by the
Corporation, (ii) counsel to the Corporation or Indemnitee shall have reasonably
concluded that there may be a conflict of interest or position, or reasonably
believes that a conflict is likely to arise, on any significant issue between
the Corporation and Indemnitee in the conduct of any such defense, (iii) the
Corporation shall not, in fact, have employed counsel to assume the defense of
such action, suit or proceeding, or (iv) the Corporation is not financially or
legally able to pay or otherwise perform its indemnification obligations, then
the fees and expenses of Indemnitee’s counsel shall be at the expense of the
Corporation, except as otherwise expressly provided by this
Agreement. The Corporation shall not be entitled, without the consent
of Indemnitee, to assume the defense of any claim brought by or in the right of
the Corporation or as to which counsel for the Corporation or Indemnitee shall
have reasonably made the conclusion provided for in clause (ii)
above.
(d) Notwithstanding
any other provision of this Agreement to the contrary, to the extent that
Indemnitee is, by reason of Indemnitee’s corporate status with respect to the
Corporation or any corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee is or was serving or has
agreed to serve at the request of the Corporation, a witness or otherwise
participates in any action, suit or proceeding at a time when Indemnitee is not
a party in the action, suit or proceeding, the Corporation shall indemnify
Indemnitee against all expenses (including attorneys’ fees) actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
therewith.
Section 5. Procedure for
Indemnification.
(a) To
obtain indemnification, Indemnitee shall promptly submit to the Corporation a
written request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to
indemnification. The Corporation shall, promptly upon receipt of such
a request for indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification. The failure by Indemnitee
to timely notify the Corporation of a proceeding will not relieve the
Corporation from any obligation it otherwise would have to Indemnitee under this
Agreement except to the extent that the Corporation is prejudiced in the defense
of such indemnified proceeding as a result of such failure.
(b) The
Corporation’s determination whether to grant Indemnitee’s indemnification
request shall be made promptly, and in any event within sixty (60) days
following receipt of a request for indemnification pursuant to Section
5(a). The right to indemnification as granted by Section 1 of this
Agreement shall be enforceable by Indemnitee in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part, or
fails to respond within such 60-day period, or 20 days in the case of a claim
for expenses incurred in defending a proceeding in advance of its final
disposition. It shall be a defense to any such action (other than an
action brought to enforce a claim for the advance of costs, charges and expenses
under Section 4 hereof where the required undertaking, if any, has been received
by the
Corporation)
that Indemnitee has not met the indemnification standards, but the burden of
proving such defense by clear and convincing evidence shall be on the
Corporation. Neither the failure of the Corporation (including its
Board of Directors or one of its committees, its special legal counsel, and its
shareholders) to have made a determination prior to the commencement of such
action that indemnification of Indemnitee is proper in the circumstances because
Indemnitee has met the indemnification standards, nor the fact that there has
been an actual determination by the Corporation (including its Board of
Directors or one of its committees, its special legal counsel, and its
shareholders) that Indemnitee has not met the indemnification standards of
conduct, shall be a defense to the action or create a presumption that
Indemnitee has or has not met the indemnification standards. The
Indemnitee’s expenses (including attorneys’ fees) incurred in connection with
successfully establishing Indemnitee’s right to indemnification, in whole or in
part, in any such proceeding or otherwise shall also be indemnified by the
Corporation.
(c) The
Indemnitee shall be presumed to be entitled to indemnification under this
Agreement upon submission of a request for indemnification pursuant to this
Section 5, and the Corporation shall have the burden of proof in overcoming that
presumption in reaching a determination contrary to that
presumption. Such presumption shall be used as a basis for a
determination of entitlement to indemnification unless the Corporation overcomes
such presumption by clear and convincing evidence. Such presumption
shall apply both to the determination and/or authorization made by the
Corporation in connection with the claim and in any suit or action to enforce
the claim or otherwise relating to the claim. Such presumption shall include a presumption that
Indemnitee has satisfied the indemnification standards and, in addition, has
acted in good faith and in a manner in which Indemnitee reasonably believed to
be in or not opposed to the best interests of the
Corporation. The knowledge and/or actions, or failures to act,
of any director, officer, agent or employee of the Corporation or a subsidiary,
shall not be imputed to the Indemnitee for purposes of determining the right to
indemnification under this Agreement or otherwise.
Section 6. Insurance and
Subrogation.
(a) The
Corporation may purchase and maintain insurance on behalf of Indemnitee who is
or was or has agreed to serve at the request of the Corporation as a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against, and incurred by, Indemnitee or on
Indemnitee’s behalf in any such capacity, or arising out of Indemnitee’s status
as such, whether or not the Corporation would have the power to indemnify
Indemnitee against such liability under the provisions of this
Agreement. If the Corporation has such insurance in effect at the
time the Corporation receives from Indemnitee any notice of the commencement of
a proceeding, the Corporation shall give prompt notice of the commencement of
such proceeding to the insurers in accordance with the procedures set forth in
the policy. The Corporation shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such proceeding in accordance with the terms of
such policy.
(b) In
the event of any payment by the Corporation under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee with respect to any insurance policy, 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 Corporation
to bring suit to enforce such rights in accordance with the terms of such
insurance policy. The Corporation shall pay or reimburse all expenses
actually and reasonably incurred by Indemnitee in connection with such
subrogation.
(c) The
Corporation shall not be liable under this Agreement to make any payment of
amounts otherwise indemnifiable hereunder (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) if and to the extent that Indemnitee has otherwise actually received
such payment under this Agreement or any insurance policy, contract, agreement
or otherwise.
Section 7. Certain
Definitions. For purposes of this Agreement, the following
definitions shall apply:
(a) The
term “action, suit or proceeding” shall be broadly construed and shall include,
without limitation, the investigation, preparation, prosecution, defense,
settlement, arbitration and appeal of, and the giving of testimony in, any
threatened, pending or completed claim, action, suit or proceeding, whether
civil, criminal, administrative or investigative.
(b) The
term “expenses” shall be broadly and reasonably construed and shall include,
without limitation, all direct and indirect costs of any type or nature
whatsoever (including, without limitation, all attorneys’ fees and related
disbursements, appeal bonds, other out-of-pocket costs and reasonable
compensation for time spent by Indemnitee for which Indemnitee is not otherwise
compensated by the Corporation or any third party, provided that the rate of
compensation and estimated time involved is approved in accordance with Section
3(b)), actually and reasonably incurred by Indemnitee in connection with either
the investigation, defense or appeal of a proceeding or establishing or
enforcing a right to indemnification under this Agreement, the Statute or
otherwise.
(c) The
term “judgments, fines and amounts paid in settlement” shall be broadly
construed and shall include, without limitation, all direct and indirect
payments of any type or nature whatsoever (including, without limitation, all
penalties and amounts required to be forfeited or reimbursed to the
Corporation), as well as any penalties or excise taxes assessed on a person with
respect to an employee benefit plan).
Section 8. Limitation on
Indemnification. Notwithstanding any other provision herein to
the contrary, the Corporation shall not be obligated pursuant to this
Agreement.
(a) Claims Initiated by
Indemnitee. To indemnify or advance expenses to Indemnitee
with respect to an action, suit or proceeding (or part thereof) initiated by
Indemnitee, except with respect to an action, suit or proceeding brought to
establish or enforce a right to indemnification (which shall be governed by the
provisions of Section 8(b) of this Agreement), unless such action, suit or
proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
(b) Action for
Indemnification. To indemnify Indemnitee for any expenses
incurred by Indemnitee with respect to any action, suit or proceeding instituted
by Indemnitee to enforce or interpret this Agreement, unless Indemnitee is
successful in establishing Indemnitee’s right to indemnification in such action,
suit or proceeding, in whole or in part, or unless and to the extent that the
court in such action, suit or proceeding shall determine that, despite
Indemnitee’s failure to establish their right to indemnification, Indemnitee is
entitled to indemnity for such expenses; provided, however, that nothing in this
Section 8(b) is intended to limit the Corporation’s obligation with respect to
the advancement of expenses to Indemnitee in connection with any such action,
suit or proceeding instituted by Indemnitee to enforce or interpret this
Agreement, as provided in Section 4 hereof.
(c) Section 16
Violations. To indemnify Indemnitee on account of any
proceeding with respect to which final judgment is rendered against Indemnitee
for payment or an accounting of profits arising from the purchase or sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute.
(d) Banking
Law. To indemnify Indemnitee to the extent that such
indemnification is not permitted pursuant to any applicable banking laws,
regulations, rules or policies including without limitation 12 U.S.C. §1828(k)
and 12 C.F.R. Part 359 or is prohibited by any banking regulator with
jurisdiction over the Corporation.
(e) Court
Prohibition. To indemnify Indemnitee to the extent that a
final, unappealable decision rendered by a court of competent jurisdiction finds
that paying such indemnification is prohibited by applicable law or determines
that the amount of indemnification claimed to be unreasonable.
Section 9. Mutual
Acknowledgment. The Corporation and Indemnitee acknowledge
that, in certain instances, federal law or public policy may override applicable
state law and prohibit the Corporation from indemnifying Indemnitee under this
Agreement or otherwise. For example, the Corporation and Indemnitee
acknowledge that the Securities and Exchange Commission (the “SEC”) has taken
the position that indemnification is not permissible for liabilities arising
under certain federal securities laws, and federal legislation prohibits
indemnification for certain ERISA violations. Furthermore, Indemnitee
understands and acknowledges that the Corporation has undertaken or may be
required in the future to undertake with the SEC to submit the question of
indemnification to a court in certain circumstances for a determination of the
Corporation’s right under public policy to indemnify Indemnitee. In
addition, Indemnitee further understands and acknowledges that applicable
banking laws, regulations, rules and policies could prohibit the Corporation
from indemnifying Indemnitee under this Agreement or otherwise with respect to
expenses, liabilities and losses incurred in connection with Indemnitee’s
service as a director, officer, employee or agent of a depository institution or
an entity controlled by a depository institution.
Section 10. Certain Settlement
Provisions. The Corporation shall have no obligation to
indemnify Indemnitee under this Agreement for amounts paid in settlement of any
action, suit or proceeding without the Corporation’s prior written consent,
which shall not be unreasonably withheld. The Corporation shall not
settle any action, suit or proceeding in any manner that would impose any fine
or other
obligation
on Indemnitee without Indemnitee’s prior written consent, which shall not be
unreasonably withheld. The Corporation shall not enter into any
settlement of any action, suit or proceeding in which the Corporation is jointly
liable with the Indemnitee unless such settlement provides for a full and final
release of all claims asserted against the Indemnitee.
Section 11. Savings
Clause. If any provision or provisions of this Agreement shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify Indemnitee as to costs, charges and
expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the full extent permitted by any applicable portion
of this Agreement that shall not have been invalidated and to the full extent
permitted by applicable law.
Section 12. Contribution. In
order to provide for just and equitable contribution in circumstances in which
the indemnification provided for herein is finally adjudicated by a court of
competent jurisdiction to be unavailable to Indemnitee in whole or in part, it
is agreed that, in such event, the Corporation shall, to the fullest extent
permitted by law, contribute to the payment of Indemnitee’s costs, charges and
expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, in an amount that is just and
equitable in the circumstances, taking into account, among other things,
contributions by other directors and officers of the Corporation or others
pursuant to indemnification agreements or otherwise; provided, that, without
limiting the generality of the foregoing, such contribution shall not be
required where such holding by the court is due to (i) the failure of Indemnitee
to meet the indemnification standards, or (ii) any limitation on indemnification
set forth in Section 6(c), 8 or 10 hereof. The Corporation hereby
agrees to fully indemnify and hold the Indemnitee harmless from any claims of
contribution which may be brought by officers, directors or employees of the
Corporation or of a subsidiary who may be jointly liable with the
Indemnitee.
Section 13. Form and Delivery of
Communications. Any notice, request or other communication
required or permitted to be given to the parties under this Agreement shall be
in writing and either delivered in person or sent by telecopy, telex, telegram,
overnight mail or courier service, or certified or registered mail, return
receipt requested, postage prepaid, to the parties at the following addresses
(or at such other addresses for a party as shall be specified by like
notice):
If to the
Corporation:
Cintas
Corporation
0000
Xxxxxx Xxxxxxxxx
Xxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxx
Facsimile:
(000) 000-0000
If to
Indemnitee:
_______________________
_______________________
_______________________
Attn:___________________
Facsimile:_______________
Section 14. Subsequent
Legislation. If the WBCA is amended after adoption of this
Agreement to expand further the indemnification permitted to directors, then the
Corporation shall indemnify Indemnitee to the fullest extent permitted by the
WBCA, as so amended.
Section 15. Nonexclusivity. The
provisions for indemnification and advancement of expenses set forth in this
Agreement shall not be deemed exclusive of any other rights which Indemnitee may
have under any provision of law, the Corporation’s Articles or Bylaws, in any
court in which a proceeding is brought, the vote of the Corporation’s
shareholders or disinterested directors, other agreements or otherwise, and
Indemnitee’s rights hereunder shall continue after Indemnitee has ceased acting
as an agent of the Corporation and shall inure to the benefit of the heirs,
executors and administrators of Indemnitee. However, no amendment or
alteration of the Corporation’s Articles or Bylaws or any other agreement shall
adversely affect the rights provided to Indemnitee under this
Agreement.
Section 16. Enforcement. The
Corporation shall be precluded from asserting in any judicial proceeding that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable. The Corporation agrees that its execution of this
Agreement shall constitute a stipulation by which it shall be irrevocably bound
in any court of competent jurisdiction in which a proceeding by Indemnitee for
enforcement of his rights hereunder shall have been commenced, continued or
appealed, that its obligations set forth in this Agreement are unique and
special, and that failure of the Corporation to comply with the provisions of
this Agreement will cause irreparable and irremediable injury to Indemnitee, for
which a remedy at law will be inadequate. As a result, in addition to
any other right or remedy Indemnitee may have at law or in equity with respect
to breach of this Agreement, Indemnitee shall be entitled to injunctive or
mandatory relief directing specific performance by the Corporation of its
obligations under this Agreement.
Section 17. Interpretation of
Agreement. It is understood that the parties hereto intend
this Agreement to be interpreted and enforced so as to provide indemnification
to Indemnitee to the fullest extent now or hereafter permitted by
law.
Section 18. Entire
Agreement. This Agreement and the documents expressly referred
to herein constitute the entire agreement between the parties hereto with
respect to the matters covered hereby, and any other prior or contemporaneous
oral or written understandings or agreements with respect to the matters covered
hereby are expressly superseded by this Agreement.
Section 19. 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 provision hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.
Section 20. Successor and
Assigns. All of the terms and provisions of this Agreement,
together with all indemnification rights and benefits of the Indemnitee under
the Articles and the Bylaws, shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and their respective
successors, assigns, heirs, executors, administrators and legal
representatives. The Corporation shall require and cause any direct
or indirect successor (whether by purchase, merger, consolidation or otherwise)
to all or substantially all of the business or assets of the Corporation, by
written agreement in form and substance reasonably satisfactory to Indemnitee,
expressly to assume and agree to perform this Agreement, and to honor the
Indemnitee’s rights and benefits under the Articles and the Bylaws, in the same
manner and to the same extent that the Corporation would be so required if no
such succession had taken place.
Section 21. Service of Process and
Venue. For purposes of any claims or proceedings to enforce
this agreement, the Corporation consents to the jurisdiction and venue of any
federal or state court of competent jurisdiction in the State of Washington, and
waives and agrees not to raise any defense that any such court is an
inconvenient forum or any similar claim.
Section 22. Supersedes Prior
Agreement. This Agreement supersedes any prior indemnification
agreement between Indemnitee and the Corporation or its
predecessors.
Section 23. Governing
Law. Except to the extent preempted by federal law, this
Agreement shall be governed by and construed in accordance to the laws of the
State of Washington, without giving effect to principles of conflicts of
law. If a court of competent jurisdiction shall make a final
determination that the provisions of the law of any state or jurisdiction other
than Washington govern indemnification by the Corporation of its directors, then
the indemnification provided under this Agreement shall in all instances be
enforceable to the fullest extent permitted under such law, notwithstanding any
provision of this Agreement to the contrary.
Section 24. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which together shall be deemed to be one and
the same instrument, notwithstanding that both parties are not signatories to
the original or same counterpart.
Section 25. Headings. The
section and subsection headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
Section 26. No Employment
Rights. Nothing in this Agreement is intended to create in
Indemnitee any right to employment or continued employment with the
Corporation.
Section 27. Indemnification Obligation
Survives Termination. It is expressly understood and agreed by
the Parties that the obligation of the Corporation to indemnify Indemnitee
survives the termination of Indemnitee’s service to the Corporation as a
director with
respect
to acts or omissions of Indemnitee while a director or officer of the
Corporation and with respect to claims, issues or matters arising from or in any
way related to Indemnitee’s service as a director of the Corporation prior to
such termination.
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered to be
effective as of the date first above written.
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