Exhibit 10.14
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") dated as of March 30,
1998, is between Xxxxxxxx-Xxxxxxxx, Inc., a Delaware corporation (the
"Company"), and the undersigned director of the Company (the "Indemnitee"), with
reference to the following facts:
The Indemnitee is currently serving as a director of the Company and the
Company desires that the Indemnitee continue in such capacity. The Indemnitee
is willing, under certain circumstances, to continue serving as a director of
the Company.
Section 145 of the General Corporation Law of the State of Delaware, under
which law the Company is organized, empowers a corporation to indemnify a person
serving as a director, officer, employee or agent of the corporation and a
person who serves at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, and such Section 145 and the bylaws of the Company specify
that the indemnification set forth in said Section 145 and in the bylaws,
respectively, shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
In order to induce the Indemnitee to continue to serve as a director of the
Company and in consideration of his or her continued service, the Company hereby
agrees to indemnify the Indemnitee as follows:
1. INDEMNITY. The Company shall indemnify the Indemnitee and his or
her executors, administrators or assigns, for any Expenses (as defined
below) that the Indemnitee is or becomes legally obligated to pay in
connection with any Proceeding. As used in this Agreement the term
"Proceeding" shall include any threatened, pending or
completed claim, action, suit, investigation or proceeding, whether
brought by or in the right of the Company or otherwise and whether of a
civil, criminal, administrative or investigative nature, in which the
Indemnitee may be or may have been involved as a party, witness or
otherwise, by reason of the fact that Indemnitee is or was a director or
officer of the Company, by reason of any actual or alleged error or
misstatement or misleading statement made or suffered by the Indemnitee,
by reason of any action taken by him or her or of any inaction on his or
her part while acting as such director or officer, or by reason of the
fact that he or she was serving at the request of the Company as a
director, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise; PROVIDED,
HOWEVER, that in each such case Indemnitee acted in good faith and in a
manner which he or she reasonably believed to be in or not opposed to
the best interests of the Company, and, in the case of a criminal
proceeding, in addition had no reasonable cause to believe that his or
her conduct was unlawful. As used in this Agreement, the term "other
enterprise" shall include (without limitation) employee benefit plans
and administrative committees thereof, and the term "fines" shall
include (without limitation) any excise tax assessed with respect to any
employee benefit plan. Any corporation, partnership, limited liability
company or other entity on behalf of which Indemnitee may be deemed to
be acting in connection with his or her service to the Company shall be
entitled to the benefits of the indemnity provided for by this Agreement
to the same extent and under the same conditions upon which Indemnitee
is entitled to such indemnity.
INDEMNIFICATION AGREEMENT - Page 2
2. EXPENSES. As used in this Agreement, the term "Expenses" shall
include, without limitation, damages, judgments, fines, penalties,
settlements and costs, attorneys' fees and disbursements and costs of
attachment or similar bonds, investigations, and any expenses of
establishing a right to indemnification under this Agreement.
3. ENFORCEMENT. If a claim or request under this Agreement is not
paid by the Company, or on its behalf, within 30 calendar days after a
written claim or request has been received by the Company, then the
Indemnitee may at any time thereafter bring suit against the Company to
recover the unpaid amount of the claim or request and if successful in
whole or in part, the Indemnitee shall be entitled to be paid also the
Expenses of prosecuting such suit. The burden of proving that the
Indemnitee is not entitled to indemnification for any reason shall be upon
the Company.
4. SUBROGATION. Upon any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee, who shall execute all papers required and shall
do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.
5. EXCLUSIONS. The Company shall not be liable under this Agreement
to pay any Expenses in connection with any claim made against the
Indemnitee:
(a) to the extent that payment is actually made to the
Indemnitee under a valid, enforceable and collectible insurance
policy;
(b) to the extent that the Indemnitee is indemnified and
actually paid otherwise than pursuant to this Agreement;
INDEMNIFICATION AGREEMENT - Page 3
(c) in connection with a judicial action by or in the right of
the Company, in respect of any claim, issue or matter as to which the
Indemnitee shall have been adjudged to be liable to the Company unless
and only to the extent that any court in which such action was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnity for such
expenses as such court shall deem proper;
(d) if it is proved by final judgment in a court of law or
other final adjudication to have been based upon or attributable to
the Indemnitee's in fact having gained any personal profit or
advantage to which he or she was not legally entitled;
(e) for a disgorgement of profits made from the purchase and
sale by the Indemnitee of securities pursuant to Section 16(b) of the
Securities Exchange Act of 1934, as amended, and amendments thereto or
similar provisions of any state statutory law or common law; or
(f) for any judgment, fine or penalty which the Company is
prohibited by applicable law from paying.
6. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding
any other provision of this Agreement, to the extent that the Indemnitee
has been successful on the merits or otherwise in defense of any Proceeding
or in defense of any claim, issue or matter therein, including dismissal
without prejudice, Indemnitee shall be indemnified against any and all
Expenses incurred in connection therewith.
INDEMNIFICATION AGREEMENT - Page 4
7. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of Expenses, but not, however, for the total amount thereof, the
Company shall nevertheless indemnify the Indemnitee for the portion of such
Expenses to which the Indemnitee is entitled.
8. ADVANCE OF EXPENSES. Expenses incurred by the Indemnitee in
connection with any Proceeding, except the amount of any settlement, shall
be paid by the Company in advance upon request of the Indemnitee that the
Company pay such expenses. The Indemnitee hereby undertakes to repay to
the Company the amount of any Expenses theretofore paid by the Company to
the extent that it is ultimately determined that such Expenses were not
reasonable or that the Indemnitee is not entitled to indemnification.
9. NOTICE OF CLAIM. The Indemnitee, as a condition precedent to his
or her right to be indemnified under this Agreement, shall give to the
Company notice in writing as soon as practicable of any claim made against
him or her for which indemnity will or could be sought under this
Agreement, but a failure to give such notice will affect the obligations of
the Company hereunder only to the extent that the Company is actually and
materially prejudiced thereby. Notice to the Company shall be given at its
corporate headquarters and shall be directed to the corporate secretary (or
such other addressee as the Company shall designate in writing to the
Indemnitee); notice shall be deemed received if sent by prepaid mail
properly addressed, the date of such notice being the date postmarked. In
addition, the Indemnitee shall give the Company such information and
cooperation as it may reasonably require in connection with such claim.
INDEMNIFICATION AGREEMENT - Page 5
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one instrument.
11. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. Nothing herein shall be
deemed to diminish or otherwise restrict the Indemnitee's right to
indemnification under any provision of the Certificate of Incorporation or
bylaws of the Company and amendments thereto or under law.
12. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with Delaware law, without giving effect to the principles of
conflict of laws thereof.
13. SAVING CLAUSE. Wherever there is conflict between any provision
of this Agreement and any applicable present or future statute, law or
regulation contrary to which the Company and the Indemnitee have no legal
right to contract, the latter shall prevail, but in such event the affected
provisions of this Agreement shall be curtailed and restricted only to the
extent necessary to bring them within applicable legal requirements.
14. COVERAGE. The provisions of this Agreement shall apply with
respect to the Indemnitee's service as a director of the Company prior to
the date of this Agreement and with respect to all periods of such service
after the date of this Agreement, even though the Indemnitee may have
ceased to be a director of the Company.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
legatees, legal representatives, successors and permitted assigns.
INDEMNIFICATION AGREEMENT - Page 6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
XXXXXXXX-XXXXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------------
Printed Name: Xxxxxxx X. Xxxxxxx, Xx.
------------------------
Title: Secretary
-------------------------------
INDEMNITEE
By: /s/Xxxx X. Xxxxxxxx, Xx.
---------------------------------
Printed Name: Xxxx X. Xxxxxxxx, Xx.
INDEMNIFICATION AGREEMENT - Page 7
SCHEDULE OF INDIVIDUALS
ENTERING INTO AN INDEMNIFICATION AGREEMENT WITH THE COMPANY
DIRECTORS:
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, Xx.
Xxxxx X. Xxxxxxx
Xxxxxx X. House
Xxxxxxx X. Xxx, Xx.
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxx
Xxxxx X. Xxxx
OFFICERS:
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxx X. Xxxxxxxx, Xx.
Xxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxxx
H. Xxxxxxx Xxxxxxx
Xxxxx X. Xxxx
Xxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
CONSULTANT:
Xxxxx X. Xxxx
INDEMNIFICATION AGREEMENT - Page 8
