EXHIBIT 10.9
TRUSTEE'S INDEMNITY AGREEMENT
THIS AGREEMENT dated for reference the 20th day of November, 2000.
BETWEEN:
XXXXX X. X. XXX, Businessman
(the "Trustee")
AND:
XXXXXX INTERNATIONAL INC., a Massachusetts business trust
organized under the laws of the State of Washington with an
office at Xxxxxxxxxxxxxxxxx 00, 0000 Xxxxxx, Xxxxxxxxxxx
(the "Company")
WITNESSES THAT WHEREAS:
A. The Company and the members of the Company have requested the Trustee to
act as a trustee and/or officer of the Company;
and
B. The Trustee has agreed to act as a trustee and/or officer of the Company
upon the condition that the Company execute and deliver to him this
indemnity.
NOW THEREFORE in consideration of the premises, the respective covenants of the
parties herein and other good and valuable consideration (the receipt and
sufficiency of which is hereby acknowledged), the parties hereto covenant and
agree as follows:
1. EFFECTIVE DATE
1.1 Notwithstanding the date of its execution and delivery, this Agreement
shall be conclusively deemed to commence on, and be effective as of, the
day upon which the Trustee first became or becomes a trustee or officer of
the Company and shall survive and remain in full force and effect after the
Trustee ceases to be a trustee or officer of the Company and after the
termination of the Trustee's employment with the Company.
2. INDEMNITY
2.1 Subject to Section 2.2, the Company shall indemnify and save harmless the
Trustee against and from:
(a) any and all charges and claims of every nature and kind whatsoever
which may be brought or made by any person, firm, corporation or
government, or by any governmental department, body, commission,
board, bureau, agency or instrumentality against the Trustee in
consequence of his being a director, officer, trustee, employee or
agent of the Company, any of the Company's subsidiaries, or any
company, partnership, joint venture, trust or other enterprise related
to or affiliated with the Company or which the Trustee was serving at
the request of the Company as a director, officer, trustee, employee
or agent (the "Related Companies"), or that arise out of or in any way
connected with the management, operation, activities or existence of
the Company or any of its Related Companies;
(b) any and all costs, damages, expenses (including legal fees and
disbursements on a full indemnity basis), fines, liabilities,
penalties (statutory and otherwise) and losses which the Trustee may
sustain, incur or be liable for in consequence of his acting as a
trustee and/or officer of the Company or its Related Companies whether
sustained or incurred by reason of his negligence, default, breach of
duty, breach of trust, failure to exercise due diligence or otherwise
in relation to the Company or its Related Companies or any of its
affairs; and
(c) in particular, and without in any way limiting the generality of the
foregoing, any and all costs, damages, expenses (including legal fees
and disbursements on a full indemnity basis), fines, liabilities,
penalties (statutory or otherwise) and losses which the Trustee may
sustain, incur or be liable for as a result of or in connection with
the release of or presence in the environment of substances,
contaminants, litter, waste, effluent, refuse, pollutants or
deleterious materials and that arise out of or in any way connected
with the management, operation, activities or existence of the Company
or its Related Companies.
The Company shall advance to the Trustee the amounts incurred or suffered
by him, or reasonably estimated to be incurred or suffered by him, in
connection with the indemnification set forth in this Section 2.1
immediately upon receipt by the Company of a written request for such
advance.
2.2 Notwithstanding the provisions of Section 2.1, the Company shall not be
obligated to indemnify or save harmless the Trustee against and from any
charge, claim, cost, damage, expense, fine, liability, loss, or penalty:
(a) if, in respect thereof, a court of competent jurisdiction determines,
which determination is not subject to any subsequent appeals, that the
Trustee failed to act honestly and in good faith with a view to the
best interests of the Company;
(b) arising out of any criminal conviction of the Trustee if the Trustee
pleaded guilty or was found guilty by a court of competent
jurisdiction, which finding is not subject to any subsequent appeals
by the Trustee; or
(c) arising out of a determination by a court of competent jurisdiction,
which determination is not subject to any subsequent appeals, that the
Trustee failed to disclose his interest or conflicts as required under
the WASHINGTON BUSINESS CORPORATION ACT.
3. RESIGNATION
3.1 Nothing in this Agreement shall prevent the Trustee from resigning as a
trustee or officer of the Company or any of its Related Companies at any
time.
4. INVALIDITY
4.1 If any provision or part of Part 2 of this Agreement shall be held to be
invalid or contrary to law, the remainder of Part 2 of this Agreement shall
nevertheless be valid and binding upon the parties hereto.
5. DEFENCE
5.1 For the purpose of this Part 5:
"Action" means any action, inquiry, investigation, suit or other proceeding
before a court or other tribunal in which a Claim is brought, made or
advanced of or against the Trustee;
"Claim" means any charge, claim, costs, damage, expense, fine, liability,
loss or penalty contemplated by Section 2.1, without reference to Section
2.2;
"Judgment" means an award of damages or other monetary compensation made in
an Action or any amounts the Trustee is ordered to pay by any court or
other body, commission, board, bureau, agency, or instrumentality having
proper jurisdiction as a result of any Claim brought, made or advanced of
or against the Trustee; and
"Settlement" means an agreement to compromise a Claim or an Action.
5.2 Upon the Trustee becoming aware of any pending or threatened Claim or
Action, written notice shall be given by or on behalf of the Trustee to the
Company as soon as is reasonably practicable.
5.3 The Company shall conduct such investigation of each Claim as is reasonably
necessary in the circumstances, and shall pay all costs of such
investigation.
5.4 Subject to this Section, the Company shall, upon the written request of the
Trustee, defend, on behalf of the Trustee, any Action, even if the Claim
upon which the Action is founded is groundless, false or fraudulent.
5.5 The Company shall consult with and accept the reasonable choice of the
Trustee concerning the appointment of any defence counsel to be engaged by
the Company in fulfillment of its obligations to defend an Action pursuant
to Section 5.4; thereafter the Company shall appoint such counsel.
5.6 With respect to a Claim for which the Company is obliged to indemnify the
Trustee hereunder, the Company may conduct negotiations towards a
Settlement and, with the written consent of the Trustee (which the Trustee
agrees not to unreasonably withhold) the Company may make such Settlement
as it deems expedient, provided however that the Trustee shall not be
required, as part of any proposed Settlement, to admit liability or agree
to indemnify the Company in respect of, or make contribution to, any
compensation or other payment for which provision is made under the
Settlement. The Company shall pay any compensation or other payment for
which provision is made by such Settlement.
5.7 The Trustee shall have the right to enter into any Settlement in respect of
any Claim or Action which is founded upon any of the acts specified in
Section 2.2.
5.8 The Company shall pay any Judgment which may be made or given against the
Trustee unless a court of competent jurisdiction conclusively determines,
which determination is not subject to any subsequent appeal, that any of
the circumstances in Section 2.2 applies to the Action in respect of which
the Judgment is made or given.
6. GENERAL
6.1 In this Agreement wherever the singular or masculine is used it will be
construed as if the plural or feminine or neuter, as the case may be, had
been used where the context otherwise requires, and a reference to a
section by number is a reference to the section so numbered in this
Agreement.
6.2 All notices and other communications required to be given by a party
hereunder shall be in writing and shall be deemed to have been duly given
if delivered by hand to the other party at the other party's address
specified above or at such other address as the other party may have last
specified in writing to the party intending to convey the notice or other
communication.
6.3 Time shall be of the essence of this Agreement.
6.4 The headings in this Agreement are inserted for ease of reference only and
shall have no effect on the construction or interpretation of this
Agreement.
6.5 This Agreement shall be construed and interpreted in accordance with and be
governed by the laws of Switzerland. Each of the parties hereby irrevocably
attorns to the non-exclusive jurisdiction of xxx xxxxxx xx Xxxxxx,
Xxxxxxxxxxx with respect to any matters arising out of this Agreement.
6.6 Other than Article VI contained in the Amended and Restated Employment
Agreement between the Trustee and the Company of even date herewith (the
"Employment Agreement"), this Agreement contains the entire agreement
between the parties relating to the subject matter hereof and there are no
agreements, representations or warranties, express or implied, which are
collateral hereto. For greater certainty, notwithstanding anything to the
contrary in this Agreement, the parties hereto acknowledge and agree that
nothing contained herein is intended to modify, abridge, limit or affect
any of the rights or obligations of the parties hereto contained in the
Employment Agreement.
6.7 This Agreement may only be amended by a written agreement signed by the
parties.
6.8 Each of the parties agrees to promptly do all such further acts, and
promptly execute and deliver all such further documents, as may be
necessary or advisable for the purpose of giving effect to or carrying out
the intent of this Agreement.
6.9 This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, other
legal personal representatives, successors and assigns.
IN WITNESS WHEREOF the parties hereto have executed this Agreement, in the case
of a corporate party by its duly authorized officer or officers, as of the date
first written above.
SIGNED, SEALED and DELIVERED )
by XXXXX X.X. XXX )
in the presence of: )
)
______________________________ ) __________________________
Name ) XXXXX X.X. XXX
)
______________________________ )
Address )
)
______________________________ )
)
)
______________________________ )
Occupation
XXXXXX INTERNATIONAL INC.
By: ___________________________________________
Name: __________________________________________
Title: _________________________________________
