AGREEMENT
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This INDEMNIFICATION AGREEMENT made and entered into as of August ___,
2004 by and between Xxxxxx X. Xxxxx and Xxxxxx Xxxxx (collectively, "Guido"),
and ___________________ (the "Indemnitee"):
WHEREAS, Indemnitee has agreed to serve as a director of Allstates
WorldCargo, Inc., a New Jersey corporation ("Allstates") on the condition that
the Indemnitee be indemnified against any claims arising from any actions taken
by Indemnitee in connection with his service as a director of Allstates and/or
from his agreement to serve as a director of Allstates; and
WHEREAS, Guido has advised Indemnitee that Allstates provides directors
and officers liability insurance coverage (the "Insurance Coverage") but as of
the date hereof the complete terms of such coverage are unknown; and
WHEREAS, Allstates' Bylaws currently provide with respect to
indemnification (the "Bylaws Indemnification") as follows:
Every person who is or was a director or officer, employee or agent of
the Corporation, or any person who serves or has served, in any
capacity with any other enterprise at the request of the Corporation,
shall be indemnified by the Corporation to the fullest extent permitted
by law. The Corporation shall indemnify the persons listed above
against all expenses and liabilities reasonably incurred by or imposed
on them in connection with any proceedings to which they have been or
may be made parties, or any proceedings in which they may have become
involved by reason of being or having been a director or officer of the
Corporation, or by reason of serving or having served another
enterprise at the request of the Corporation, whether or not in the
capacities of directors or officers of the Corporation at the time the
expenses or liabilities are incurred.
WHEREAS, Indemnitee is concerned that indemnification to him under the
Insurance Coverage or under the Bylaws Indemnification may be inadequate,
delayed or unavailable; and
WHEREAS, Guido has agreed to indemnify Indemnitee for any claims
arising from actions taken by the Indemnitee in connection with his service as a
director to Allstates and/or his agreement to serve on the Board of Directors of
Allstates in the event that indemnification under the Insurance Coverage or
Bylaws Indemnification is inadequate, delayed or unavailable;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, Guido and Indemnitee, intending to be legally bound, do hereby
covenant and agree as follows:
Section 1. Indemnification. Guido shall indemnify Indemnitee, subject
only to the limited exceptions set forth in this Agreement, as set forth herein.
Section 2. Actions or Proceedings. Indemnitee shall be entitled to the
indemnification rights provided in this Agreement if he is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, administrative or investigative in nature
arising out of actions taken or alleged to be taken by Indemnitee as a director,
agent or fiduciary of Allstates and/or in connection with his agreement to
become a director of Allstates. Pursuant to this section, Indemnitee shall be
indemnified against expenses (including attorneys' fees), costs, judgments,
penalties, fines and amounts paid in settlement actually incurred by Indemnitee
in connection with such action, suit or proceeding (including, but not limited
to, the investigation, defense or appeal thereof). Indemnitee shall give prompt
written notice to Guido with respect to matters for which indemnification
pursuant to this Agreement may be sought; provided, however, that the failure to
notify Guido shall not relieve Guido from any liability which he may have under
this Agreement except to the extent he has been materially prejudiced by such
failure. If any claim or action shall be brought against Indemnitee, and he
shall notify Guido thereof, Guido shall be entitled to participate therein to
the extent permitted without jeopardizing Indemnitee's rights under the
Insurance Coverage and/or the Bylaws Indemnification and, to the extent that
Guido wishes and to the extent permitted without jeopardizing Indemnitee's
rights under the Insurance Coverage and/or the Bylaws Indemnification, to assume
the defense thereof with counsel satisfactory to Indemnitee; provided, however,
that Indemnitee shall have the right to employ counsel to represent him if, in
his reasonable judgment, use of counsel chosen by Guido to represent the
Indemnitee would present such counsel with a conflict of interest or the
defendants in such claim include both the Indemnitee and Guido and the
Indemnitee has been advised by counsel that there may be one or more legal
defenses available to the Indemnitee that are different from or in addition to
those available to Guido, and in any such event the reasonable fees and expenses
of such separate counsel will be paid by Guido. Guido shall not, without the
prior written consent of the Indemnitee (which consent will not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the Indemnitee is actual or potential party to such claim or
action), unless such settlement, compromise or consent includes an unconditional
release of Indemnitee from all liability arising out of such claim, action, suit
or proceeding.
Section 3. Advancement of Expenses and Costs. All reasonable expenses
and costs incurred by Indemnitee (including attorneys' fees, retainers and
advances of disbursements required of Indemnitee) shall be paid by Guido in
advance of the final disposition of such action, suit or proceeding at the
request of Indemnitee as follows: Indemnitee shall submit to Allstates, the
carrier or carriers providing Insurance Coverage from time to time (the
"Carrier") and to Guido a statement or statements (the "Request") requesting
such advance or advances (each, a "Claim") from time to time. Indemnitee's
entitlement to such expenses shall include those incurred in connection with any
proceeding by Indemnitee seeking an adjudication or award in arbitration
pursuant to this Agreement. Such statement or statements shall reasonably
evidence the expenses and costs incurred by Indemnitee in connection therewith.
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Guido shall pay such expenses or costs to Indemnitee within fifteen (15) days
after receipt by Guido of a written notice from Indemnitee that he has not
received payment from Allstates or the Carrier within fifteen (15) days of
delivery of the Request to Allstates or the Carrier. Indemnitee agrees to
cooperate and join, at Guido's expense, with Guido in taking such steps as are
necessary to secure payment of the Claim from the Carrier or Allstates. If
Indemnitee receives payment of the Claim from Allstates or the Carrier after
having received payment of same from Guido, Indemnitee shall repay such amount
to Guido.
Section 4. Payment of Judgments, Awards and Settlement Amounts.
All judgments, awards and settlement amounts incurred by
Indemnitee shall be paid by Guido at the request of Indemnitee as follows:
Indemnitee shall submit to Allstates, the carrier or carriers providing
Insurance Coverage from time to time (the "Carrier") and to Guido evidence of
said judgment, award or settlement and a statement (which statement shall be
included in the definition of the term "Request") requesting such payment (which
such judgment, award or settlement amount shall be included within the
definition of "Claim"). Guido shall pay such Claim to Indemnitee within thirty
(30) days after receipt by Guido of a written notice from Indemnitee that he has
not received payment from Allstates or the Carrier within thirty (30) days of
delivery of the Request to Allstates or the Carrier. Indemnitee agrees to
cooperate and join, at Guido's expense, with Guido in taking such steps as are
necessary to secure payment of the Claim from the Carrier or Allstates. If
Indemnitee receives payment of the Claim from Allstates or the Carrier after
having received payment of same from Guido, Indemnitee shall repay such amount
to Guido.
Section 5. Exceptions to Indemnification. Notwithstanding any other
provision to the contrary set forth in this Agreement, Indemnitee shall not be
entitled to indemnification or advancement of expenses from Guido under this
Agreement in any circumstances in which Allstates would not be permitted to
indemnify the Indemnitee by reason of the provisions of N.J.S.A. 14A:3-5(8).
Section 6. Other Rights to Indemnification. The indemnification and
advancement of expenses (including attorneys' fees) and costs provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may now or in the future be entitled under any provision of the Certificate of
Incorporation or by-laws, agreement, vote of stockholders or disinterested
directors, provision of law or otherwise upon the election of Indemnitee to the
Board of Directors of Allstates.
Section 7. Attorneys' Fees and Other Expenses to Enforce Agreement. In
the event that Guido should default under any provision of this Agreement and
the Indemnitee shall require and employ attorneys or incur other expenses for
the enforcement or performance or observance of any obligation or agreement on
the part of Guido herein contained, Guido agrees that he will on demand therefor
pay to the Indemnitee the fees of such attorneys and such other expenses so
incurred by the Indemnitee.
Section 8. 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, all portions of any
paragraphs of this Agreement containing any such provision held to be invalid,
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illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (b) to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, all portions of any paragraph of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
Section 9. Identical Counterparts. This Agreement may be executed in
one or more counterparts, 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 signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.
Section 10. Headings. The headings of the paragraphs of this Agreement
are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction thereof.
Section 11. 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.
Section 12. Notice by Indemnitee. Indemnitee agrees promptly to notify
Guido in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any matter
which may be subject to indemnification covered hereunder, civil, criminal or
investigative.
Section 13. 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 receipted for by the party to whom said
notice or other communication shall have been directed, on the date on which it
is so delivered, or if (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed, or
if (iii) delivered by overnight courier and receipted for by the party to whom
said notice or other communication shall have been delivered, on the business
day after the date on which it is delivered to said courier:
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(a) If to Indemnitee, to the address set forth on the
signature page to this Agreement.
(b) If to Guido to:
Xxxxxx X. Xxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxxx Xxx, Xxx Xxxxxx 00000
or to such other address as may have been furnished to Indemnitee by Guido or to
Guido by Indemnitee, as the case may be.
Section 14. Governing Law. The parties agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws of the
State of New Jersey.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
Witness:
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Xxxxxx X. Xxxxx
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Xxxxxx Xxxxx
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Name (please print or type)
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Signature
Address:
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