EXHIBIT 10.90
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT made and entered into this 28th day of
October, 2003, by and between Workflow Management, Inc., a Delaware corporation
(the "Company") and Xxxxxxx X. Xxxxxxxxx (the "Indemnitee").
RECITALS
WHEREAS, highly competent persons are becoming more reluctant to serve
corporations as directors or officers or in other capacities unless they are
provided with adequate protection through insurance and indemnification against
inordinate risks of claims and actions against them arising out of their service
to and activities on behalf of the Company; and
WHEREAS, the current difficulties of obtaining adequate insurance have
increased the difficulty of attracting and retaining such persons; and
WHEREAS, the Board of Directors has determined that the inability to
attract and retain such persons is detrimental to the best interests of the
Company's stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the future; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take
on additional service for or on behalf of the Company on the condition that he
be so indemnified.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
Section 1. Service by Indemnitee. Indemnitee will serve and/or continue
to serve as a director or officer of the Company faithfully and to the best of
his ability so long as he is duly elected or qualified in accordance with the
provisions of the By-laws of the Company and the Delaware General Corporation
Law or until such time as he tenders his resignation in writing. Indemnitee may
at any time and for any reason resign from such position (subject to any other
contractual obligation or other obligation imposed by operation of law), in
which event the Company shall have no obligation under this Agreement to
continue Indemnitee in any such position. In the event the Indemnitee is now (or
at any time hereafter) employed by the Company or any of its subsidiaries,
nothing in this Agreement shall confer upon the Indemnitee the right to continue
in the employ of the Company or affect the right of the Company to terminate the
Indemnitee's employment at any time in the sole discretion of the Company, with
or without cause (subject in all events to the terms and conditions of any
employment agreements or other contractual obligations to which the Company and
the Indemnitee are parties).
Section 2. Indemnification. The Company shall indemnify the Indemnitee
to the fullest extent permitted by applicable law in effect on the date hereof
or as such laws may from time to time be amended. Without diminishing the scope
of the indemnification provided by this Section 2, the rights of indemnification
of Indemnitee provided hereunder shall include but shall not be limited to those
rights set forth hereinafter, except that no indemnification shall be paid to
Indemnitee:
(a) on account of any suit in which judgment is rendered
against Indemnitee for an accounting of profits made from the purchase or sale
by Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law;
(b) on account of Indemnitee's conduct which is finally
adjudged to have been knowingly fraudulent or deliberately dishonest, or to
constitute willful misconduct;
(c) to the extent expressly prohibited by applicable law;
(d) for which payment is actually made to Indemnitee under a
valid and collectible insurance policy or under a valid and enforceable
indemnity clause, by-law or agreement, except in respect of any excess beyond
payment under such insurance, clause, by-law or agreement;
(e) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful (and, in this
respect, both the Company and Indemnitee have been advised that the Securities
and Exchange Commission believes that indemnification for liabilities arising
under the federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to the
appropriate court for adjudication); or
(f) in connection with any proceeding (or part thereof)
initiated by Indemnitee, or any proceeding by Indemnitee against the Company or
its directors, officers, employee or other indemnitees, unless (i) such
indemnification is expressly required to be made by law, (ii) the proceeding was
authorized by the Board of Directors of the Company, (iii) such indemnification
is provided by the Company, in its sole discretion, pursuant to the powers
vested in the Company under applicable law, or (iv) except as provided in
Sections 10 and 13 hereof.
Section 3. Action or Proceeding Other Than an Action by or in the Right
of the Company. Indemnitee shall be entitled to the indemnification rights
provided in this section 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,
criminal, administrative or investigative in nature, other than an action by or
in the right of the Company, by reason of the fact that he is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent or fiduciary of any
other entity, including, but not limited to, another corporation, partnership,
joint venture, trust, or by reason of anything done or not done by him in any
such capacity. Pursuant to this Section Indemnitee shall be indemnified against
all expenses (including attorneys' fees), costs, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding (including, but not limited to, the
investigation, defense or appeal thereof), if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
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Section 4. Actions by or in the Right of the Company. Indemnitee shall
be entitled to the indemnification rights provided in this Section if he is a
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding brought by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee or agent or fiduciary of the
Company, or is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of another entity, including, but not
limited to, another corporation, partnership, joint venture, trust, or by reason
of anything done or not done by him in any such capacity. Pursuant to this
Section, Indemnitee shall be indemnified against all expenses (including
attorneys' fees), costs, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding (including, but not limited to, the investigation,
defense or appeal thereof) if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company; provided, however, that no such indemnification shall be made in
respect of any claim, issue, or matter as to which applicable law expressly
prohibits such indemnification by reason of an adjudication of liability of
Indemnitee to the Company, unless and only to the extent that, the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnity for such expenses and costs which such
court shall deem proper.
Section 5. Indemnification for Costs, Charges and Expenses of
Successful Party. Notwithstanding the other provisions of this Agreement, to the
extent that Indemnitee has served as a witness on behalf of the Company or has
been successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 3 and 4 hereof, or in defense of any claim,
issue or matter therein, including, without limitation, the dismissal of an
action without prejudice, he shall be indemnified against all costs, charges and
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Section 6. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses (including attorneys' fees), costs, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with the investigation, defense, appeal or settlement of
such suit, action, investigation or proceeding described in Section 3 or 4
hereof, but not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of such expenses (including
reasonable attorneys' fees), costs, judgments, penalties, fines and amounts paid
in settlement actually and reasonably incurred by him to which Indemnitee is
entitled.
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Section 7. Determination of Entitlement to Indemnification. Upon
written request by Indemnitee for indemnification pursuant to Section 3, 4, 5 or
6 hereof, the entitlement of the Indemnitee to indemnification pursuant to the
terms of this Agreement shall be determined by the following person or persons
who shall be empowered to make such a determination: (a) the Board of Directors
of the Company by a majority vote of Disinterested Directors (as hereinafter
defined), even though less than a quorum; (b) a committee of Disinterested
Directors designated by majority vote of Disinterested Directors, even though
less than a quorum; or (c) if there are no Disinterested Directors, or if such
Disinterested Directors so direct, by Independent Counsel (as hereinafter
defined) in a written opinion to the Board of Directors, a copy of which shall
be delivered to Indemnitee. Such Independent Counsel shall be selected by the
Board of Directors and approved by Indemnitee. Upon failure of the Board to so
select such Independent Counsel or upon failure of Indemnitee to so approve,
such Independent Counsel shall be selected by the Chancellor of the State of
Delaware or such other person as the Chancellor shall designate to make such
selection. Such determination of entitlement to indemnification shall be made
not later than 45 days after receipt by the Company of a written request for
indemnification. Such request shall include documentation or information which
is necessary for such determination and which is reasonably available to
Indemnitee. Any costs or expenses (including attorneys' fees) incurred by
Indemnitee in connection with his request for indemnification hereunder shall be
borne by the Company. The Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom irrespective of the outcome of the determination
of Indemnitee's entitlement to indemnification. If the person making such
determination shall determine that Indemnitee is entitled to indemnification as
to part (but not all) of the application for indemnification, such person shall
reasonably prorate such partial indemnification among such claims, issues or
matters.
Section 8. Presumptions and Effect of Certain Proceedings. The
Secretary of the Company shall, promptly upon receipt of Indemnitee's request
for indemnification, advise in writing the Board of Directors or such other
person or persons empowered to make the determination as provided in Section 7
that Indemnitee has made such request for indemnification. Upon making such
request for indemnification, Indemnitee shall be presumed to be entitled to
indemnification hereunder and the Company shall have the burden of proof in
making of any determination contrary to such presumption. If the person or
persons so empowered to make such determination shall have failed to make the
requested indemnification within 45 days after receipt by the Company of such
request, the requisite determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be absolutely entitled to such
indemnification, absent actual and material fraud in the request for
indemnification. The termination of any action, suit, investigation or
proceeding described in Section 3 or 4 hereof by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself: (a) create a presumption that Indemnitee did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, that Indemnitee had reasonable cause to believe that his conduct
was unlawful; or (b) otherwise adversely affect the rights of Indemnitee to
indemnification except as may be provided herein.
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Section 9. 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 the Company
in advance of the final disposition of such action, suit or proceeding at the
request of Indemnitee within twenty days after the receipt by the Company of a
statement or statements from Indemnitee requesting such advance or advances
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 him in connection therewith and shall include or be accompanied by
an undertaking by or on behalf of Indemnitee to repay such amount if it is
ultimately determined that Indemnitee is not entitled to be indemnified
against such expenses and costs by the Company as provided by this Agreement
or otherwise.
Section 10. Remedies of Indemnitee in Cases of Determination not to
Indemnify or to Advance Expenses. In the event that a determination is made that
Indemnitee is not entitled to indemnification hereunder or if payment has not
been timely made following a determination of entitlement to indemnification
pursuant to Sections 7 and 8, or if expenses are not advanced pursuant to
Section 9, Indemnitee shall be entitled to a final adjudication in an
appropriate court of the State of Delaware or any other court of competent
jurisdiction of his entitlement to such indemnification or advance.
Alternatively, Indemnitee at his option may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association, such award to be made within 60 days following the
filing of the demand for arbitration. The Company shall not oppose Indemnitee's
right to seek any such adjudication or award in arbitration or any other claim.
Such judicial proceeding or arbitration shall be made de novo and Indemnitee
shall not be prejudiced by reason of a determination (if so made) that he is not
entitled to indemnification. If a determination is made or deemed to have been
made pursuant to the terms of Section 7 or Section 8 hereof that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination
and is precluded from asserting that such determination has not been made or
that the procedure by which such determination was made is not valid, binding
and enforceable. The Company further agrees to stipulate in any such court or
before any such arbitrator that the Company is bound by all the provisions of
this Agreement and is precluded from making any assertions to the contrary. If
the court or arbitrator shall determine that Indemnitee is entitled to any
indemnification hereunder, the Company shall pay all reasonable expenses
(including attorneys' fees) and costs actually incurred by Indemnitee in
connection with such adjudication or award in arbitration (including, but not
limited to, any appellant proceedings).
Section 11. Notification and Defense of Claim. Promptly after receipt
by Indemnitee of notice of the commencement of any action, suit or proceeding,
Indemnitee will, if a claim in respect thereof is to be made against the Company
under this Agreement, notify the Company in writing of the commencement thereof;
but the omission to so notify the Company will not relieve it from any liability
that it may have to Indemnitee otherwise than under this Agreement.
Notwithstanding any other provision of this Agreement, with respect to any such
action, suit or proceeding as to which Indemnitee notifies the Company of the
commencement thereof:
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(a) The Company will be entitled to participate therein at its
own expense; and
(b) Except as otherwise provided in this Section 11(b), to the
extent that it may wish, the Company, jointly with any other indemnifying party
similarly notified, shall be entitled to assume the defense thereof, with
counsel satisfactory to Indemnitee. After notice from the Company to Indemnitee
of its election to so assume the defense thereof, the Company shall not be
liable to Indemnitee under this Agreement for any legal or other expenses
subsequently incurred by the Indemnitee in connection with the defense thereof
other than reasonable costs of investigation or as otherwise provided below.
Indemnitee shall have the right to employ his own counsel in such action, suit
or proceeding, but the fees and expenses of such counsel incurred after notice
from the Company of its assumption of the defense thereof shall be at the
expense of Indemnitee unless (i) the employment of counsel by Indemnitee has
been authorized by the Company, (ii) Indemnitee shall have reasonably concluded
that there may be a conflict of interest between the Company and Indemnitee in
the conduct of the defense of such action or (iii) the Company shall not in fact
have employed counsel to assume the defense of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the Company.
The Company shall not be entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of the Company or as to which Indemnitee
shall have made the conclusion provided for in (ii) above.
(c) The Company shall not be liable to indemnify Indemnitee
under this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company shall not settle any action or
claim in any manner that would impose any penalty or limitation on Indemnitee
without Indemnitee's written consent. Neither the Company nor Indemnitee will
unreasonably withhold their consent to any proposed settlement.
Section 12. 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 By-Laws,
agreement, provision of the Certificate of Incorporation of the Company, vote of
stockholders or Disinterested Directors, provision of law or otherwise.
Notwithstanding any other provision of this Agreement, the Company hereby agrees
to indemnify Indemnitee to the fullest extent permitted by law, including those
circumstances in which indemnification would otherwise be discretionary.
Section 13. Attorneys' Fees and Other Expenses to Enforce Agreement. In
the event that any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms hereof, Indemnitee shall be entitled to be
paid all court costs and expenses, including reasonable attorneys' fees,
incurred by Indemnitee with respect to such action, unless as a part of such
action, the court of competent jurisdiction determines that the action was not
instituted in good faith or was frivolous. In the event of an action instituted
by or in the name of the Company under this Agreement, or to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be entitled to be
paid all court costs and expenses, including attorneys' fees incurred by
Indemnitee in defense of such action (including with respect to Indemnitee's
counterclaims and cross-claims made in such action), unless as a part of such
action the court determines that Indemnitee's defenses to such action were not
made in good faith or were frivolous.
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Section 14. Notice to Insurers. If, at the time of the receipt of a
notice of a claim pursuant to this Agreement, the Company has directors' and
officers' liability insurance in effect, the Company shall give prompt notice to
the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of the Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
Section 15. Duration of Agreement. This Agreement shall continue until
and terminate upon the later of: (a) ten years after Indemnitee has ceased to
occupy any of the positions or have any relationships described in Sections 3
and 4 of this Agreement; and (b) the final termination of all pending or
threatened actions, suits, proceedings or investigations to which Indemnitee may
be subject by reason of the fact that he is or was a director, officer,
employee, agent or fiduciary of the Company or is or was serving at the request
of the Company as a director, officer, employee, agent or fiduciary of any other
entity, including, but not limited to, another corporation, partnership, joint
venture or trust, or by reason of anything done or not done by him in any such
capacity. The indemnification provided under this Agreement shall continue as to
Indemnitee even though he may have ceased to be a director or officer of the
Company. This Agreement shall be binding upon the Company and its successors and
assigns and shall inure to the benefit of the Indemnitee and his spouse,
assigns, heirs, devises, executors, administrators or other legal
representatives.
Section 16. Severability. If any provision or provisions of this
Agreement shall be held 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,
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 manifest by the provision held invalid, illegal or
unenforceable.
Section 17. 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.
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Section 18. 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 19. Definitions. For purposes of this Agreement:
------------
(a) "Disinterested Director" shall mean a director of the
Company who is not or was not a party to the action, suit, investigation or
proceeding in respect of which indemnification is being sought by Indemnitee.
(b) "Independent Counsel" shall mean a law firm or a member of
a law firm that neither is presently nor in the past five years has been
retained to represent: (i) the Company or Indemnitee in any matter material to
either such party, or (ii) any other party to the action, suit, investigation or
proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee's right to indemnification under this
Agreement.
Section 20. 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 21. Notices. All notices, requests, demands or 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 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:
(a) If to the Indemnitee, to:
Xxxxxxx X. Xxxxxxxxx
000 Xxxxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
(b) If to the Company, to:
Workflow Management, Inc.
Attn: President
000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, XX 00000
Fax: 000-000-0000
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with a copy to:
T. Xxxxxxx Xxxxxx, Xx., Esq. Xxxxxxx &
Xxxxxxx, P.C. 000 X. Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Fax: 000-000-0000
or to such other address as may be furnished to Indemnitee by the Company
or to the Company by the Indemnitee, as the case may be.
Section 22. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter contained
in it and supersedes all prior and contemporaneous agreements, representations,
and understandings of the parties.
Section 23. Governing Law. The parties hereto agree that this Agreement
shall be governed by, construed and enforced in accordance with the substantive
laws of the State of Delaware (without reference to the conflict of laws
principles thereof).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
WORKFLOW MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxxx
Chief Executive Officer & President
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Indemnitee
#875831 v1 - WMI SCHMICKLE INDEMNIFICATION AGREEMENT
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