Exhibit 10.11
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made as of the
19th day of September, 1996, by and between XXXXXXXX INDUSTRIES, INC., a
Virginia corporation (the "Corporation") and XXXX X. XXXXXXX, a Maryland
resident (the "Indemnitee"). It recites and provides as follows:
RECITALS:
A. The Indemnitee is a director of the Corporation,
B. The Indemnitee has requested that the Corporation indemnify
him from liability arising from his service as a director of the Corporation,
and the Corporation has agreed to provide such indemnification pursuant to this
Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of ten dollars and other good and
valuable consideration, the receipt and adequacy of which is acknowledged, the
parties agree as follows:
1. Indemnification of Indemnitee. The Corporation hereby agrees to
indemnify the Indemnitee and to hold him harmless from and against: (a) any and
all claims, losses, liabilities, obligations, damages, deficiencies, costs and
expenses, including without limitation, expenses of investigation and reasonable
attorneys' fees and disbursements, suffered by him of every kind, nature and
description, as a result of his service as a director of the Corporation; and
(b) all actions, suits, proceedings, arbitrations, demands, assessments and
judgments, incident to the foregoing; provided, however, the Indemnitee shall
not be entitled to indemnification under this Agreement if, in connection with
the events giving rise to a particular request for indemnification, the
Indemnitee, is adjudged to have engaged in willful misconduct or a knowing
violation of the criminal law or any federal or state securities law, This
indemnification shall be in addition to any other rights the Indemnitee may have
at law or equity, and the Indemnitee need not pursue or exhaust any remedies
before being entitled to indemnification hereunder.
2. Indemnification Procedures. All claims for indemnification under
this Agreement shall be asserted and resolved as follows:
(a) In the event that any claim, or claims, is asserted
against the Indemnitee (a "Claim") which could give rise to
a right of indemnification under this Agreement, the
Indemnitee shall promptly (i) notify the Corporation of such
Claim and (ii) deliver to the Corporation a written notice
("Claim Notice") describing in reasonable detail the nature
of the Claim and a copy of all papers served with respect to
the Claim (if any). Within fifteen (15) calendar days after
receipt of any Claim Notice (the "Election Period"), the
Corporation shall notify the Indemnitee whether the
Corporation desires to defend the Indemnitee against such
Claim at its sole cost and expense.
(b) If the Corporation notifies the Indemnitee within the
Election Period that it intends to assume the defense of the
Claim, then the Corporation shall have the right to defend,
at its sole cost and expense, such Claim by all appropriate
proceedings, which proceedings shall be prosecuted
diligently by attorneys mutually acceptable to the
Indemnitee and the Corporation, until final conclusion or
settlement at the discretion of the Corporation in
accordance with this Section 2(b). The Corporation shall
have full control of such defense proceedings, including any
compromise or settlement thereof, provided, however, that
(i) the Corporation shall not settle the Claim without the
consent in writing of the Indemnitee (which consent shall
not be unreasonably withheld, but may include, at the
Indemnitee's sole discretion, as a condition precedent, the
grant of a release, in form satisfactory to the Indemnitee
in favor of the Indemnitee by the party bringing the Claim),
and (ii) any such settlement shall not provide for
injunctive or other equitable relief against the Indemnitee.
The Indemnitee may participate in, but not control, any
defense or settlement of any Claim controlled by the
Corporation pursuant to this Section 2(b).
(c) If, with respect to a Claim, the Corporation fails to notify
the Indemnitee within the Election Period that the
Corporation elects to defend the Indemnitee pursuant to
Section 2(b) or if the Corporation elects to defend the
Indemnitee pursuant to Section 2(b) but fails to diligently
and promptly prosecute or settle such Claim, then the
Indemnitee shall have the right to defend such Claim by all
appropriate proceedings, which proceedings shall be promptly
and vigorously prosecuted by the Indemnitee until final
conclusion or settlement. The Indemnitee shall have full
control of such defense and proceedings, provided however,
that if requested by the Indemnitee, the Corporation agrees,
at its cost and expense, to cooperate with the Indemnitee
and its counsel in contesting any Claim which the Indemnitee
is contesting, or, if appropriate and related to the Claim
in question, in making any counterclaim against the person
asserting the Claim, or any cross-complaint against any
person. Notwithstanding the foregoing, if the Corporation
has delivered a written notice to the Indemnitee to the
effect that the Corporation disputes its potential liability
to the Indemnitee under this Agreement and if such dispute
is resolved in favor of the Corporation, by final,
nonappealable order of a court of competent jurisdiction the
Corporation shall not be required to bear the cost and
expenses of the Indemnitee's defense pursuant to this
Section 2 or of the Corporation's participation therein at
the Indemnitee's request and the Indemnitee shall reimburse
the Corporation in full for all costs and expenses of such
litigation. The Corporation may participate in, but not
control, any defense or settlement controlled by the
Indemnitee pursuant to this Section 2, and the Corporation
shall bear its own costs and expenses with respect to such
participation.
3. Payment of Indemnification Claims. If the Indemnitee asserts
an indemnification claim under this Agreement which is not disputed by the
Corporation, the amount of such claim shall be paid within fifteen (15) days
after the date the Corporation advises the Indemnitee in writing that it does
not dispute the asserted indemnification claim(s) the Indemnitee. If the
Indemnitee asserts a claim under this Agreement which is disputed by the
Corporation, then the Corporation shall pay to the Indemnitee the
amount of the final judgment, award or settlement in respect of such claim
within fifteen (I 5) calendar days after the date of such final judgment, award
or settlement.
4. Survival of Indemnification, This Agreement shall survive
termination of the Indemnitee's status as director of the Corporation.
5. Binding Effect: Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
6. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given when delivered personally or when received
if sent by registered or certified mail to the parties at the following
addresses (or such other address as a party may specify by notice):
If to the Corporation:
Xxxxxxxx Industries, Inc.
Post Xxxxxx Xxx 0
0000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
with copy to:
Williams, Mullen, Christian & Xxxxxxx, P.C.
Two Xxxxx Center
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Dallas, Jr., Esquire
If to the Indemnitee:
Xxxx X. Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
8. Applicable Law. This Agreement shall be interpreted, governed
and enforced in accordance with the laws of the Commonwealth of Virginia.
WITNESS the following signatures and seals as of the date first above
written.
XXXXXXXX INDUSTRIES, INC.,
a Virginia corporation
By: /s/ H. Xxxxxx Xxxxxxxx, Xx.
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Name: H. Xxxxxx Xxxxxxxx, Xx.
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Title: Executive Vice President
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INDEMNITEE:
/s/ Xxxx X. Xxxxxxx (SEAL)
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Xxxx X. Xxxxxxx
