Exhibit 10.15C
INDEMNIFICATION AGREEMENT WITH DIRECTOR
(MEMBER OF PROFIT SHARING COMMITTEE)
INDEMNIFICATION AGREEMENT made and entered into between XXXXXXX COMPUTER
SERVICES, INC., a Delaware Corporation (the "Company"), and
____________________________________________________ (the "Director").
W I T N E S S E T H :
WHEREAS, the Director is a valued member of the Board of Directors of the
Company; and
WHEREAS, under the provisions of the Company's Certificate of Incorporation, as
in effect on the date hereof, the Company is obligated, to the fullest extent
permitted from time to time by applicable law, to hold harmless and indemnify
each person who is or was at any time a director of the Corporation from and
against any and all expenses (including attorneys' fees), judgments, fines,
amounts paid in settlement, and other liabilities and claims of any kind, that
any such person may at any time suffer or incur or become subject to as a result
of or in connection with his or her serving or having served at any time as a
director of the Company, except that the Company does not have any affirmative
obligation under its Certificate of Incorporation as in effect on the date
hereof to indemnify any person who is or was a director with respect to
expenses, judgments, fines, amounts paid in settlement, or other liabilities or
claims of any kind based upon or attributable to (i) any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) any acts or
omissions by the director which are not in good faith or which involve
intentional misconduct or deliberate dishonesty, (iii) any improper personal
profit or benefit by the director, or (iv) any income taxes in respect of
compensation received for services as a director (collectively, the "Non-
Indemnified Liabilities"); and
WHEREAS, the Director is a member of the Profit Sharing Committee under the
Company's Profit Sharing and Retirement Plan (the "Profit Sharing Committee");
and
WHEREAS, the Company and the Director desire to confirm that the obligation of
the Company to hold harmless and indemnify the Director extends to expenses
(including attorneys' fees), judgments, fines, amounts paid in settlement, and
other liabilities and claims of any kind, that the Director may at any time
suffer or incur or become subject to as a result of or in connection with his or
her serving or having served at any time as a member of the Profit Sharing
Committee (collectively, the "Profit Sharing Committee Liabilities").
WHEREAS, due to the fact that the indemnification provisions of the Company's
Certificate of Incorporation may be amended, modified or repealed, that the
Company may be unable to continue to purchase and maintain adequate liability
insurance, and that there are other substantial uncertainties associated with
the indemnification provisions of the Delaware General Corporation Law and the
Company's Certificate of Incorporation and with liability insurance, the
Director does not regard the rights to indemnification granted to him under the
provisions of the Delaware General Corporation Law and the Company's Certificate
of Incorporation and under director and officer liability insurance as adequate
to protect him against the risks associated with service as a member of the
Profit Sharing Committee, and the Director may be unwilling to continue to serve
as a member of the Profit Sharing Committee in the absence of the benefits and
assurances provided to him under this Agreement; and
WHEREAS, the Company desires that the Director continue to serve as a member of
the Profit Sharing Committee.
NOW, THEREFORE, in order to induce the Director to continue to serve as a member
of the Profit Sharing Committee and in consideration of his continued service in
such capacity, the Company hereby agrees with the Director as follows:
1. Notwithstanding any amendment, modification or repeal of the indemnification
provisions of the Company's Certificate of Incorporation after the date hereof,
the Company shall, to the fullest extent permitted from time to time by
applicable law, hold harmless and indemnify the Director from and against any
and all Profit Sharing Committee Liabilities.
2. Anything contained in this Agreement to the contrary notwithstanding, the
Company shall not have any obligation to hold harmless or indemnify the Director
pursuant to this Agreement (a) with respect to any Non-Indemnified Liability or
(b) with respect to any Profit Sharing Committee Liability to the extent the
Director is entitled to and actually receives payment or reimbursement for such
Profit Sharing Committee Liability (i) from the Company other than pursuant to
this Agreement, (ii) under any policy of insurance, or (iii) from any third
party.
3. In the event any claim should at any time be made or threatened against the
Director with respect to or in connection with (i) any Profit Sharing Committee
Liability, or (ii) otherwise in his capacity as a member of the Profit Sharing
Committee, the Company shall, to the fullest extent permitted from time to time
by applicable law, advance the Director any and all costs and expenses
(including attorneys' fees) in investigating, defending or otherwise contesting
such claim; PROVIDED, HOWEVER, that (i) the Company shall not be obligated to
make any such advance to the Director unless and until the Director gives the
Company a written undertaking to repay any and all such advances if
and to the extent it is ultimately determined that the Director is not entitled
to indemnification with respect to such claim, and (ii) the Company shall not be
obligated to make any such advance to the Director in respect of any claim if,
in the good faith determination of the Board of Directors of the Company made by
a majority vote of a quorum of disinterested directors based upon the facts then
known to the Board of Directors of the Company, such claim is with respect to
Non-Indemnified Liabilities.
4. If the Director determines that a claim made or threatened against him has
given rise to, or may give rise to, a right to indemnification under paragraph 1
hereof or a right to advancement of costs and expenses under paragraph 3 hereof,
the Director shall give the Company prompt written notice of such claim;
however, the failure to give the Company prompt written notice of a claim shall
not relieve the Company from any obligation it may have to the Director with
respect to such claim, under this Agreement or otherwise.
5. If a claim should be made or threatened against the Director which has given
rise to, or may give rise to, a right to indemnification under paragraph 1
hereof or a right to advancement of costs and expenses under paragraph 3 hereof,
and provided that such claim is not made or threatened in the name or on behalf
of the Company and there is no other conflict of interest between the Company
and the Director with respect to such claim, then:
(a) The Company shall have the right to participate, at its own cost and
expense, in the investigation, defense or other contest of such claim;
and
(b) The Company shall have the right to elect to assume the defense of
such claim on behalf of the Director (if applicable, jointly with any
third party who may have an obligation to hold harmless or indemnify
the Director with respect to such claim).
If the Company should elect to assume the defense of a claim on behalf of the
Director, then (i) the Company shall give the Director prompt written notice of
such election; (ii) the Company shall be obligated to defend such claim in good
faith and in a manner consistent with the best interests of the Director; (iii)
provided that the Company defends such claim in good faith and in a manner
consistent with the best interests of the Director and no conflict of interest
develops between the Company and the Director with respect to such claim, the
Company shall not be liable for any costs or expenses (including attorneys'
fees) incurred by the Director in connection with defending or otherwise
contesting such claim after he has received written notice of such election; and
(iv) the Company shall not settle or compromise such claim on any basis or in
any manner which would impose any liability, limitation or restriction of any
kind on the Director without his express written consent.
6. The Company shall perform its obligations under this Agreement upon receipt
of written demand for such performance from the Director, and, if the Company
fails to perform its obligations under this Agreement on demand, the Director
may at any time thereafter bring legal action against the Company to obtain full
and complete performance of its obligations hereunder. In any action brought to
enforce this Agreement, upon a showing by the Director that a claim has been
asserted against him with respect to or in connection with any alleged act or
omission by him as a director of the Company, or any alleged neglect or breach
of duty by him as a director of the Company, or otherwise in his capacity as a
director of the Company, there shall be a presumption that the Director is
entitled to indemnification and advancement of costs and expenses from the
Company in respect of such claim, and the Company shall have the burden of
proving that the Director is, in fact, not entitled to indemnification and not
entitled to advancement of costs and expenses from the Company in respect of
such claim. If the Director is successful, in whole or in part, in any action
brought against the Company to obtain performance of its obligations under this
Agreement, the Director shall be entitled to recover from the Company (i) his
reasonable attorneys' fees and other reasonable costs and expenses in enforcing
this Agreement, together with (ii) interest on any and all amounts recovered by
him from the Company from the date written demand for payment or reimbursement
of such amounts was first received by the Company until the date such amounts
are paid or reimbursed at the rate equal to 2% over the prime rate as announced
from time to time by The First National Bank of Chicago (or any successor to
such bank), changing as and when such announced prime rate changes.
7. Nothing contained in this Agreement is intended to limit or restrict the
right of the Director to obtain indemnification or advancement of costs and
expenses under the provisions of the Delaware General Corporation Law as in
effect from time to time, under the provisions of the Company's Certificate of
Incorporation as in effect from time to time, or otherwise, and the rights of
the Director to obtain indemnification and advancement of costs and expenses
under this Agreement are in addition to any and all other rights the Director
may have from time to time to obtain indemnification or advancement of costs and
expenses from the Company or otherwise.
8. Any notice, demand or other communication to the Company under this Agreement
may be addressed to the Company at its principal office to the attention of its
Corporate Secretary.
9. This Agreement shall be governed by and construed in accordance with the law
of Delaware.
10. This Agreement shall inure to the benefit of and be enforceable by the
Director and his estate, heirs, legatees and personal representatives and shall
be binding upon and enforceable against the Company and its successors and
assigns (including, without limitation, any successor by merger or consolidation
and any transferee of all or substantially all of its assets); and this
Agreement shall survive the termination of the Director's service as a member of
the Profit Sharing Committee for any reason.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
XXXXXXX COMPUTER SERVICES, INC., a
Delaware corporation
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By:
Title: Chairman of the Board
DIRECTOR:
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Name:
