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EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This agreement, effective as of January 3, 1997 is between Bay
Xxxxxxx Operating Company, a Delaware corporation (the "Company"), and F. Xxxxx
Xxxxx ("Indemnitee").
Whereas, it is essential to the Company to retain and attract
as directors the most capable persons available; and
Whereas, Indemnitee is a director of the Company; and
Whereas, both the Company and Indemnitee recognize the
increased risk of litigation and other claims being asserted against directors
of public companies; and
Whereas, in recognition of Indemnitee's need for substantial
protection against personal liability in order to maintain Indemnitee's
continued service to the Company in an effective manner and to provide
Indemnitee with specific contractual assurance that the protection will be
available to Indemnitee, the Company desires to provide in this Agreement for
the indemnification of and the advance of expenses to Indemnitee to the full
extent (whether partial or complete) permitted by law, as set forth in this
Agreement and, to the extent officers' and directors' liability insurance is
maintained by the Company, to provide for the continued coverage of Indemnitee
under the Company's officers' and directors' liability insurance policies;
Now, therefore, in consideration of the covenants contained in
this Agreement and of Indemnitee's continuing service to the Company, and
intending to be legally bound, the parties agree as follows:
ARTICLE - DEFINITIONS
(a) Change in Control: shall be deemed to have occurred if
(i) any person (defined, for purposes of this Article I, as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities of
the Company representing 10% or more of the total voting power represented by
the Company's then outstanding Voting Securities, or (ii) during any period of
two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Company and any new director whose
election by the Board of Directors or nomination for election by the Company's
stockholders was approved by a vote of at least two thirds (2/3) of the
directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the Board of
Directors, or (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger
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or consolidation which would result in the Voting Securities of the Company
outstanding immediately prior to such a merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into Voting
Securities of the surviving entity) at least 90% of the total voting power
represented by the Voting Securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or (iv) the
stockholders of the Company approve a plan of complete liquidation of the
Company, an agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially all the
Company's assets, or a plan pursuant to which (in one transaction or a series
of transactions) all or substantially all the Company's assets shall be
transferred to a person not wholly owned by the Company (including but not
limited to a plan pursuant to which all or substantially all of the Company's
assets shall be transferred to a partnership in which the Company has an
interest).
(b) Claim: any threatened, pending or completed action suit,
investigation or proceeding, and any appeal, whether civil, criminal,
administrative or investigative and/or any inquiry or investigation, whether
conducted by the Company or any other party that Indemnitee in good faith
believes might lead to the institution of any such action.
(c) Expenses: include, without limitation, attorneys' fees
and all other costs, expenses, and obligations paid or incurred in connection
with investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or participate
in any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event, occurrence or
circumstance related to the fact that Indemnitee is or was a director or
officer of the Company, was acting as a trustee or agent of the Company at its
request, or by reason of anything done or not done by Indemnitee in any such
capacity.
(e) Reviewing Party: any appropriate person or body
consisting of a member or members of the Company's Board of Directors including
the Special Independent Counsel referred to in Article III (or, to the fullest
extent permitted by law, any other person or body appointed by the Board), who
is not a party to the particular claim for which Indemnitee is seeking
indemnification.
(f) Voting Securities: any securities of the Company which
vote generally in the election of directors.
ARTICLE II -- AGREEMENT TO INDEMNIFY
(a) In the event Indemnitee was, is or becomes a party to or
witness or other participant in, or is threatened to be made a party to or
witness or other participant in, a Claim by reason of (or arising in part out
of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the
fullest extent permitted by the Delaware General Corporation Law, as soon as
practicable but in any event no later than thirty days after written demand is
presented to the Company, against any and all expenses, judgments, fines and
penalties relating to or arising out of such Claim and amounts paid in
settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such Expenses, judgments, fines,
penalties or amounts paid in settlement) of such Claim. The failure of
Indemnitee to formally notify the Company of an Indemnifiable Event or Claim
within a reasonable amount of time shall not be deemed a waiver of Indemnitee's
rights under
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this Agreement if the Company has actual knowledge of such Indemnifiable Event
or Claim. Notwithstanding anything in this Agreement to the contrary, prior to
a Change in Control Indemnitee shall not be entitled to indemnification
pursuant to this Agreement in connection with any Claim initiated by Indemnitee
against the Company or any director or officer of the Company unless the
Company has joined in or consented to the initiation of such Claim. If so
requested by Indemnitee, the Company shall advance (within five business days
of such request) any and all Expenses to Indemnitee (an "Expense Advance").
(b) Notwithstanding the foregoing, (i) the obligations of the
Company under Article II(a) shall be subject to the condition that any
Reviewing Party shall not have determined (in a written opinion, in any case in
which the Special Independent Counsel referred to in Article III is involved)
that Indemnitee would not be permitted to be indemnified under applicable law,
and (ii) the obligation of the Company to make an Expense Advance pursuant to
Article II(a) shall be subject to the condition that if, when and to the extent
that any Reviewing Party determines that Indemnitee would not be permitted to
be so indemnified under applicable law, the Company shall be entitled to be
reimbursed by Indemnitee (who hereby undertakes to reimburse the Company in
such a case) for all such amounts paid; provided, however, that if Indemnitee
commences, or has commenced, legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should be indemnified
under applicable law, any determination made by a Reviewing Party that
Indemnitee would not be permitted to be indemnified under applicable law shall
not be binding and Indemnitee shall not be required to reimburse the Company
for any Expense Advance until a final judicial determination is made (as to
which all rights of appeal have been exhausted or lapsed). If there has not
been a Change in Control, a Reviewing Party shall be selected by the Board of
Directors, and if there has been such a Change in Control, a Reviewing Party
shall be Special Independent Counsel referred to in Article III. If there has
been no appointment or no determination by a Reviewing Party or if a Reviewing
Party determines that Indemnitee substantively would not be permitted to be
indemnified in whole or in part under applicable law, Indemnitee shall have the
right to commence litigation in any court in California or Delaware having
subject matter jurisdiction and in which venue is proper seeking an initial
determination by the court or challenging any such determination by the court
or challenging any such determination by the Reviewing Party, including the
legal or factual basis, and the Company consents to service of process and to
appear in any such proceeding. Any determination by the Reviewing Party
otherwise shall be conclusive and binding on the Company and Indemnitee.
(c) Notwithstanding the foregoing and as a condition to
making Expense Advances to Indemnitee for legal fees, the Company shall, in its
sole discretion, select the attorney or attorneys to represent and defend
Indemnitee unless (i) the Company fails to fulfill its obligations make Expense
Advances; (ii) the Company, in its sole discretion, agrees to permit Indemnitee
to select his or her own attorney or attorneys; or (iii) a conflict of interest
arises between the Company and Indemnitee, in which case Indemnitee shall
select his or her own attorney, subject to the Company's reasonable approval.
ARTICLE III - CHANGE IN CONTROL
The Company agrees that if there is a Change in Control of the
Company (other than a Change in Control which has been approved by a majority
of the Company's Board of Directors who were directors immediately prior to
such Change in Control), then with respect to all matters
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thereafter arising concerning the rights of Indemnitee to indemnity payments
and Expense Advances under this Agreement or any other agreement, the Company's
Articles of Incorporation, or the Company's Bylaws in effect relating to Claims
for Indemnifiable Events, the Company shall seek legal advice only from
"Special Independent Counsel" selected by Indemnitee and approved by the
Company (which approval shall not be unreasonably withheld), and who has not
otherwise performed services for the Company or Indemnitee within the last five
years (other than in connection with such matters). Such Special Independent
Counsel, among other things, shall render its written opinion to the Company
and Indemnitee as to whether and to what extent the Indemnitee would be
permitted to be indemnified under applicable law. The Company agrees to pay
the reasonable fees of the Special Independent Counsel referred to above and
may fully indemnify such Special Independent Counsel against any and all
expenses (including attorneys' fees), claims, liabilities and damages arising
out of or relating to this Agreement.
ARTICLE IV - ESTABLISHMENT OF LETTER OF CREDIT
The Company's obligations to make indemnity payments and
Expense Advances to Indemnitee under this Agreement shall be secured by a
letter of credit in the amount of $1,000,000 which shall also secure the
Company's indemnity payment and expense advance obligations to Xxxxxx X.
Xxxxxxxx, Xx., Xxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx, F. Xxxx Xxxxxx, Xxx Xxxxxx
and Xxxxxxx X. Xxxxxx (along with Indemnitee, the "Current Directors") and
Xxxxx Xxxxxxxx, each of whom, along with Indemnitee, shall be named a
beneficiary of the letter of credit. Such letter of credit shall be
established no later than ten (10) days after the date of this Agreement and
shall remain in place for an initial period of one year or, if less, until any
four of the Current Directors, one of which may but need not be the Indemnitee,
at their sole election, consent to the termination of such letter of credit.
If, after the initial or any subsequent period, such letter of credit is not
renewed for a subsequent period, any four of the Current Directors shall have
the right to draw the full amount thereof to hold as cash collateral securing
the obligations under this Agreement. The letter of credit shall additionally
provide that draws may be made by any four of the Current Directors, one of
which may but need not be the Indemnitee, upon their certification that (a)
Indemnitee is entitled to indemnity or Expenses Advances under this Agreement,
(b) Indemnitee has demanded the amount being drawn from the Company in writing,
and (c) the Company has not paid the full amount within the time required by
this Agreement. Recourse to the letter of credit shall be in addition to, and
not in lieu of, any manner otherwise available for enforcement of this
Agreement and nothing in this Article shall relieve the Company of any of its
obligations under this Agreement.
ARTICLE V - ADDITIONAL EXPENSES
To the fullest extent permitted by law, the Company shall
indemnify Indemnitee against any and all Expenses (including attorneys' fees)
and, if requested by Indemnitee, shall (within five business days of such
request) advance such Expenses to Indemnitee, which are incurred by Indemnitee
in connection with any Claim asserted against or action brought by Indemnitee
for (i) indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement, the Company's Bylaws or Articles of
Incorporation now or hereafter in effect relating to Claims for Indemnifiable
Events and/or (ii) recovery under any directors' and officers' liability
insurance policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, Expense
advance or insurance recovery, as the case may be.
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ARTICLE VI - PARTIAL INDEMNITY AND CONTRIBUTION
(a) If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, penalties and amounts paid in settlement of a Claim
but not, however, for all of the total amount, the Company shall nevertheless
indemnify Indemnitee for the portion to which Indemnitee is entitled.
Moreover, notwithstanding any other provision of this Agreement, to the extent
that Indemnitee has been successful on the merits or otherwise in defense of
any or all Claims relating in whole or in part to an Indemnifiable Event or in
defense of any issue or matter, including dismissal without prejudice,
Indemnitee shall be indemnified against all Expenses incurred in connection
with those defenses. In connection with any determination by the Reviewing
Party or otherwise as to whether Indemnitee is entitled to be indemnified, the
burden of proof shall be on the Company to establish that Indemnitee is not so
entitled.
(b) In the event that the Company is not obligated to make
indemnity payments and Expense Advances under this Agreement, the Company's
Bylaws or the Delaware General Corporation Law, contribution as between the
Company and Indemnitee toward any judgment or settlement relating to a Claim by
reason of (or arising in part out of) an Indemnification Event shall be based
upon the relative benefits to and faults of each of the parties involved.
ARTICLE VII - NO PRESUMPTIONS
For purposes of this Agreement, to the fullest extent
permitted by law, the termination of any Claim, action, suit or proceeding, by
judgment, order, settlement (whether with or without court approval) or
conviction, or upon a plea of nolo contendere, or its equivalent, shall not
create a presumption that Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has determined that
indemnification is not permitted by applicable law.
ARTICLE VIII - NONEXCLUSIVITY
The rights of the Indemnitee hereunder shall be in addition to
any other rights Indemnitee may have under the Company's Articles of
Incorporation, Bylaws, the Delaware General Corporation Law or otherwise. To
the extent that a change in the Delaware General Corporation Law (whether by
statute or judicial decision) permits greater indemnification by agreement than
would be afforded currently under the Company's Articles of Incorporation or
Bylaws or this Agreement, to the fullest extent permitted by law it is the
intent of the parties to that Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by such change immediately upon the occurrence of
such change without further action by the Company or Indemnitee.
ARTICLE IX - INSURANCE
To the extent the Company maintains an insurance policy or
policies providing directors' and officers' liability insurance, Indemnitee
shall be covered by such policy or policies, in accordance with its or their
terms, to the maximum extent of the coverage available for any director or
officer of the Company. The Company agrees to make demand on such policies or
all of such policies which may be applicable in the event it may also have an
indemnification obligation under this Agreement.
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ARTICLE X - LIMITATIONS PERIOD
No legal action shall be brought and no cause of action shall
be asserted by or in the right of the Company or any affiliate of the Company
against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Company or its
affiliate shall be extinguished and deemed released unless asserted by the
timely filing of a legal action within such two year period; provided, however,
that if any shorter period of limitations is otherwise applicable to any such
cause of action such shorter period shall govern.
ARTICLE XI - AMENDMENTS
No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by both of the parties. No waiver
of any of the provisions of this Agreement shall be deemed or shall constitute
a waiver of any other provisions (whether or not similar) nor shall such waiver
constitute a continuing waiver.
ARTICLE XII - SUBROGATION
The Company shall not be liable under this Agreement to make
any payment in connection with any Claim made against Indemnitee to the extent
Indemnitee has otherwise actually received payment (under any insurance policy,
Bylaw or otherwise) of the amounts otherwise indemnifiable.
ARTICLE XIII - BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties and their respective successors, assigns,
including any direct or indirect successors by purchase, merger, consolidation
or otherwise to all or substantially all of the business and/or assets of the
Company, spouses, heirs, and personal and legal representatives. The Company
shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all or a substantial
part, of the business and/or assets of the Company, by written agreement in
form and substance satisfactory to the Indemnitee, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform if no such succession had taken place.
This Agreement shall continue in effect regardless of whether Indemnitee
continues to serve as an officer or director of the Company or continues to act
as a trustee or agent of the Company at its request.
ARTICLE XIV - SEVERABILITY
The provisions of this Agreement shall be severable in the
event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable in any respect, and
the validity and enforceability of any such provision in every other respect
and of the remaining provisions shall not be in any way impaired, and shall
remain enforceable to the fullest extent permitted by law.
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ARTICLE XV - NOTICES
All notices, requests, demands, and other communications 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, or (ii) mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:
If to Indemnitee, to:____________________________
_____________________________
_____________________________
If to Company, to: Bay Xxxxxxx Operating Company
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: President
or to such other address as may have been furnished to the Indemnitee by the
Company or to the Company by the Indemnitee, as the case may be.
ARTICLE XVI - GOVERNING LAW
This Agreement shall be governed by and construed and enforced
in accordance with the laws of California applicable to contracts made and to
be performed in such State without giving effect to the principles of conflicts
of laws.
In Witness Whereof, the parties have duly executed and
delivered this Agreement this 3rd day of January, 1997.
BAY XXXXXXX OPERATING COMPANY
By:________________________________
Title:_____________________________
INDEMNITEE
/s/ F. Xxxxx Xxxxx
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F. Xxxxx Xxxxx
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