INDEMNIFICATION AGREEMENT
WITH XXXXXX X. XXXX
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is made as of November 22, 1996,
by and between UNITED STATES PROPERTIES, INC., a Pennsylvania corporation
("Company"), and XXXXXX X. XXXX ("Indemnitee"), a director and/or officer or key
executive, employee or consultant of the Company, or a person serving at the
request of the Company as a director, officer, employee or agent of another
enterprise.
RECITALS
A. The Indemnitee is currently serving or has agreed to serve as a
director and/or officer of the Company and in such capacity has rendered and/or
will render valuable services to the Company.
B. The Company has investigated the availability and sufficiency of
liability insurance and applicable statutory indemnification provisions to
provide its directors and officers with adequate protection against various
legal risks and potential liabilities to which such individuals are subject due
to their positions with the Company and has concluded that such insurance may be
unavailable or too costly, and even if purchased it, and the statutory
provisions, may provide inadequate and unacceptable protection to certain
individuals requested to serve as its directors and/or officers.
C. It is essential to the Company that it attract and retain as
officers and directors the most capable persons available and in order to induce
and encourage highly experienced and capable persons such as the Indemnitee to
serve or continue to serve as a director and/or officer of the Company, the
Board of Directors has determined, after due consideration and investigation of
the terms and provisions of the Agreement and the various other options
available to the Company and the Indemnitee in lieu hereof,that this Agreement
is not only reasonable and prudent but necessary to promote and ensure the best
interests of the Company and its stockholders.
NOW, THEREFORE, in consideration of the services or continued services
of the Indemnitee and in order to induce the Indemnitee to serve or continue to
serve as director and/or officer, the Company and the Indemnitee do hereby agree
as follows:
1. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened,
pending or completed inquiry, hearing, investigation, action, suit, arbitration
or other alternative dispute resolution mechanism or proceeding, formal or
informal, whether brought in the name of the Company or otherwise and whether of
a civil, criminal or administrative or investigative nature, by reason of the
fact that the Indemnitee is or was a director and/or officer of the Company, or
is or was serving at the request of the Company as a director, officer, employee
or agent of another enterprise, whether or not he/she is serving in such
capacity at the time any liability or expense is incurred for which
indemnification or reimbursement is to be provided under this Agreement.
(b) The term "Expenses" includes, without limitation:
attorneys' fees, costs, disbursements and retainers; accounting and witness
fees; fees of experts; travel and deposition costs; transcript costs, filing
fees, telephone charges, postage, copying costs, delivery service fees and other
expenses and obligations of any nature whatsoever paid or incurred in connection
with any investigations, judicial or administrative proceedings and appeals,
amounts paid in settlement by or on behalf of Indemnitee, and any expenses of
establishing a right to indemnification, pursuant to this Agreement or
otherwise, including reasonable compensation for time spent by the Indemnitee in
connection with the investigation, defense or appeal of a Proceeding or action
for indemnification for which he/she is not otherwise compensated by the Company
or any third party. The term "Expenses" does not include the amount of
judgments, fines, penalties or ERISA excise taxes actually levied against the
Indemnitee.
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2. Agreement to Serve. The Indemnitee agrees to serve or to continue to
serve as a director and/or officer of the Company for so long as he/she is duly
elected or appointed or until such time as he/she tenders his/her resignation in
writing or is removed as a director and/or officer. However, nothing contained
in this Agreement shall be construed as giving Indemnitee any right to be
retained in the employ of the Company, any subsidiary or any other person.
3. Indemnification in Third Party Actions. The Company shall indemnify
the Indemnitee if the Indemnitee is a party to or threatened to be made a party
to or is otherwise involved in any Proceeding (other than a Proceeding by or in
the name of the Company to procure a judgment in its favor), by reason of the
fact that the Indemnitee is or was a director and/or officer of the Company, or
is or was serving at the request of the Company as a director, officer, employee
or agent of another enterprise, against all Expenses, judgments, fines,
penalties and ERISA excise taxes actually and reasonably incurred by the
Indemnitee in connection with the defense or settlement of such a Proceeding, to
the fullest extent permitted by applicable corporate law and the Company's
Articles of Incorporation; provided that any settlement of a Proceeding be
approved in writing by the Company.
4. Indemnification in Proceedings by or In the Name of the Company. The
Company shall indemnify the Indemnitee if the Indemnitee is a party to or
threatened to be made a party to or is otherwise involved in any Proceeding by
or in the name of the Company to procure a judgment in its favor by reason of
the fact that the Indemnitee was or is a director and/or officer of the Company,
or is or was serving at the request of the Company as a director, officer,
employee or agent of another enterprise, against all Expenses, judgments, fines
penalties and ERISA excise taxes actually and reasonably incurred by the
Indemnitee in connection with the defense or settlement of such a Proceeding, to
the fullest extent permitted by applicable corporate law and the Company's
Articles of Incorporation.
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5. Conclusive Presumption Regarding Standards of Conduct. The
Indemnitee shall be conclusively presumed to have met the relevant standards of
conduct, if any, as defined by applicable corporate law, for indemnification
pursuant to this Agreement, unless a determination is made that the Indemnitee
has not met such standards (i) by the Board of Directors by a majority vote of a
quorum thereof consisting of directors who were not parties to the Proceeding
due to which a claim is made under this Agreement, (ii) by the shareholders of
the Company by majority vote of a quorum thereof consisting of shareholders who
are not parties to the Proceeding due to which a claim is made under this
Agreement, (iii) in a written opinion by independent counsel, selection of whom
has been approved by the Indemnitee in writing, or (iv) by a court of competent
jurisdiction.
6. Indemnification of Expenses of Successful Party. Notwithstanding any
other provision of the Agreement, to the extent that the Indemnitee has been
successful in defense of any Proceeding or in defense of any claim, issue or
matter therein, on the merits or otherwise, including the dismissal of a
Proceeding without prejudice or the settlement of a Proceeding without an
admission of liability, the Indemnitee shall be indemnified against all Expenses
incurred in connection therewith to the fullest extent permitted by applicable
corporate law.
7. Advances of Expenses. The Expenses incurred by the Indemnitee in any
Proceeding shall be paid promptly by the Company in advance of the final
disposition of the Proceeding at the written request of the Indemnitee to the
fullest extent permitted by applicable corporate law; provided that the
Indemnitee shall undertake in writing to repay any advances if it is ultimately
determined that the Indemnitee is not entitled to indemnification.
8. Partial Indemnification. If the Indemnitee is entitled under any
provision of the Agreement to indemnification by
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the Company for a portion of the Expenses, judgments, fines, penalties or ERISA
excise taxes actually and reasonably incurred by him/her in the investigation,
defense, appeal or settlement of any Proceeding but not, however, for the total
amount of his/her Expenses, judgments, fines, penalties or ERISA excise taxes,
the Company shall nevertheless indemnify the Indemnitee for the portion of
Expenses, judgments, fines, penalties or ERISA excise taxes to which the
Indemnitee is entitled.
9. Indemnification Procedure; Determination of Right to
Indemnification.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of any Proceeding, the Indemnitee shall, if a claim in respect
thereof is to be made against the Company under this Agreement, notify the
Company of the commencement thereof in writing. The omission to so notify the
Company, however, shall not relieve it from any liability which it may have to
the Indemnitee otherwise than under this Agreement.
(b) If a claim for indemnification or advances under this
Agreement is not paid by the Company within thirty (30) days of receipt of
written notice, the rights provided by this Agreement shall be enforceable by
the Indemnitee in any court of competent jurisdiction. The burden of proving by
clear and convincing evidence that indemnification or advances are not
appropriate shall be on the Company. Neither the failure of the directors or
stockholders of the Company or its independent legal counsel to have made a
determination prior to the commencement of such action that indemnification or
advances are proper in the circumstances because the Indemnitee has met the
applicable standard of conduct, if any, nor an actual determination by the
directors or shareholders of the Company or independent legal counsel that the
Indemnitee has not met the applicable standard of conduct, shall be a defense to
the action or create a presumption for the purpose of an action that the
Indemnitee has not met the applicable standard of conduct.
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(c) The Indemnitee's Expenses incurred in connection with any
Proceeding concerning his/her right to indemnification or advances in whole or
part pursuant to this Agreement shall also be indemnified by the Company
regardless of the outcome of such Proceeding.
(d) With respect to any Proceeding for which indemnification
is requested, the Company will be entitled to participate therein at its own
expense and, except as otherwise provided below, to the extent that it may wish,
the Company may assume the defense thereof, with counsel satisfactory to the
Indemnitee. After notice from the Company to the Indemnitee of its election to
assume the defense of a Proceeding, the Company will not be liable to the
Indemnitee for any Expenses subsequently incurred by the Indemnitee in
connection with the defense thereof, other than as provided below. The Company
shall not settle any Proceeding in any manner which would impose any penalty or
limitation on the Indemnitee without the Indemnitee's written consent. The
Indemnitee shall have the right to employee his/her counsel in any Proceeding,
but the fees and expenses of such counsel incurred after notice from the Company
of its assumption of the defense of the Proceeding shall be at the expense of
the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been
authorized by the Company, (ii) the Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Company and the Indemnitee
in the conduct of the defense of a Proceeding, in each of which cases the fees
and expenses of the Indemnitee's counsel shall be advances by the Company. The
Company shall not be entitled to assume the defense of any Proceeding brought by
or on behalf of the Company or as to which the Indemnitee has concluded that
there may be a conflict of interest between the Company and the Indemnitee.
10. Limitations on Indemnification. No payments pursuant to this
Agreement shall be made by the Company:
(a) To indemnify or advance funds to the Indemnitee for
expenses with respect to a Proceeding initiated or brought
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voluntarily by the Indemnitee and not by way of defense, except with respect to
Proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required under
applicable corporate law, but such indemnification or advancement of expenses
may be provided by the Company in specific cases if the Board of Directors finds
it to be appropriate;
(b) To indemnify the Indemnitee for any Expenses, judgment,
fines, penalties or ERISA excise taxes sustained in any Proceeding for which
payment is actually made to the Indemnitee under a valid and collectible
insurance policy, except in respect of any excess beyond the amount of payment
under such insurance;
(c) To indemnify the Indemnitee for any Expenses, judgment,
fines, and/or penalties sustained in any Proceeding for an accounting of profits
made from the purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Securities Exchange Act of
1934, the rules and regulations promulgated thereunder and amendments thereto
or similar provisions of any federal, state or local statutory law; and
(d) If a court of competent jurisdiction finally determines
that any indemnification hereunder is unlawful.
11. Maintenance of Liability Insurance.
(a) The Company hereby covenants and agrees that, as long as
the Indemnitee continues to serve as a director and/or officer of the Company
and thereafter as long as the Indemnitee may be subject to any possible
Proceeding, the Company, subject to subsection (c), shall promptly obtain and
maintain in full force and effect directors' and officers' liability insurance
("D&O Insurance") in reasonable amounts from established and reputable insurers.
(b) In all D&O insurance policies, the Indemnitee shall be
named as an insured in such a manner as to provide the Indemnitee the same
rights and benefits as are accorded to the most favorably insured of the
Company's directors and/or officers.
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(c) Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain D&O Insurance if the Company determines, in its
sole discretion, that such insurance is not reasonably available, the premium
costs for such insurance is so limited by exclusions that it provides an
insufficient benefit, or the Indemnitee is covered by similar insurance
maintained by a subsidiary of the Company.
12. Indemnification Hereunder Not Exclusive. The indemnification provided by
this Agreement shall not be deemed exclusive of any other rights to which the
Indemnitee may be entitled under the Articles of Incorporation, Bylaws, any
agreement, vote of shareholders or disinterested directors, provision of
applicable corporate law, or otherwise, both as to action in his/her official
capacity and as to action in another capacity on behalf of the Company while
holding such office.
13. Successors and Assigns. This Agreement shall be binding upon, and shall
inure to the benefit of the Indemnitee and his/her heirs, executors,
administrators and assigns, whether or not Indemnitee has ceased to be a
director or officer, and the Company and its successors and assigns.
14. Severability. Each and every paragraph, sentence, term and provision
hereof is separate and distinct so that if any paragraph, sentence, term or
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of any other paragraph, sentence, term or provision hereof. To
the extent required, any paragraph, sentence, term or provision of this
Agreement shall be modified by a court of competent jurisdiction to preserve its
validity and to provide the Indemnitee with the broadest possible
indemnification permitted under applicable corporate law.
15. Savings Clause. If this Agreement or any paragraph,
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sentence, term or provision hereof is invalidated on any ground by any court of
competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee
as to any Expenses, judgments, fines, penalties for ERISA excise taxes incurred
with respect to any Proceeding to the full extent permitted by any applicable
paragraph, sentence, term or provision of this Agreement that has not been
invalidated or by any other applicable provision of applicable corporate law.
16. Interpretation; Governing Law. This Agreement shall be construed as a
whole and in accordance with its fair meaning. Headings are for convenience only
and shall not be used in construing meaning. This Agreement shall be governed
and interpreted in accordance with the laws of the Commonwealth of Pennsylvania.
17. Amendments. No amendment, waiver, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
the party against whom enforcement is sought. The indemnification rights
afforded to the Indemnitee hereby are contract rights and may not be diminished,
eliminated or otherwise affected by amendments to the Articles of Incorporation,
Bylaws, or by other agreements, including D&O Insurance policies.
18. Counterparts. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each party and
delivered to the other.
19. Notices. Any notice required to be given under this Agreement shall be
directed:
TO: UNITED STATES PROPERTIES, INC.
0 Xxxxxxx Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
With a copy to:
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Xxxxxxx X. Xxx, Esq.
P. X. Xxx 0000
Xxxxx, Xxx Xxxxxx 00000
and;
TO: XXXXXX X. XXXX
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
or to such other address as either shall designate in writing.
IN WITNESS WHEREOF, the parties have executed this Indemnity Agreement
as of the date first written above.
INDEMNITEE:
/s/ XXXXXX X. XXXX
-------------------------
XXXXXX X. XXXX
UNITED STATES PROPERTIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
President
