INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement"), made and entered
into as of the 1st day of November, 1996, by and between WEEKS CORPORATION, a
Georgia corporation (the "Company"), and XXXX X. XXXXXX, XX., a director of the
Company ("Indemnitee"). For the purposes of this Agreement, all references to
the "Company" shall include all subsidiaries, affiliates, partnerships, joint
ventures, enterprises, employee benefit plans, trusts and other entities on
behalf of which Indemnitee serves or will serve at the Company's request as an
officer, director, partner, trustee, employee or agent or in a related capacity.
WITNESSETH:
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WHEREAS, Indemnitee has agreed to serve, at the request of the
Company, as a director of the Company; and
WHEREAS, Indemnitee is willing to serve as a director of the Company
on the condition that he be indemnified, and that he have litigation expenses
advanced, to the maximum extent permitted by law;
NOW, THEREFORE, in consideration of Indemnitee's agreement to serve as
a director of the Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. Mandatory Indemnification.
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(a) The Company shall indemnify and hold harmless Indemnitee to the
maximum extent provided for in this Agreement, and, to the extent that
applicable law from time to time in
effect shall permit indemnification that is broader than provided in this
Agreement, then to the maximum extent authorized by law. All amounts payable
under the Company's indemnification obligation shall be paid within thirty (30)
days of Indemnitee's request therefor.
(b) In connection with any threatened, pending or completed action,
suit or proceeding to which Indemnitee is made or is threatened to be made a
named defendant or respondent ("Party"), whether civil, criminal, administrative
or investigative, and whether formal or informal, except for those actions set
forth in Section 1(f) hereof (an "Action"), but not including any Action by or
in the right of the Company (a "Derivative Action"), the Company hereby agrees
to indemnify and hold Indemnitee harmless from and against any judgment,
settlement, penalty, fine (including an excise tax assessed with respect to an
employee benefit plan), interest and reasonable expense (including attorney's
fees) actually incurred by him by reason of the fact that Indemnitee is or was
an officer, director, employee or agent of the Company, or has liability under
Section 11(a)(3) of the Securities Act of 1933, as amended, or is or was serving
at the request of the Company as an officer, director, agent or fiduciary of any
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, provided, however, that Indemnitee acted in a manner he believed in
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good faith to be in or not opposed to the best interests of the Company, and
with respect to any criminal Action, Indemnitee had no reasonable cause to
believe his conduct was unlawful, and with respect to an employee benefit plan,
Indemnitee acted in a manner he believed in good faith to be in the interests of
the participants in and beneficiaries of the plan. Whether an Action is
threatened, and whether Indemnitee is threatened to be made a Party thereto,
shall be determined by Indemnitee in his reasonable judgment.
(c) In connection with any Derivative Action, the Company hereby
agrees to
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indemnify and hold Indemnitee harmless from and against any reasonable expenses
actually incurred by him (including amounts paid in settlement but not including
amounts paid as a judgment, penalty or fine in respect of any such action) by
reason of the fact that Indemnitee is or was an officer, director, partner,
trustee, employee or agent of the Company; provided, however, that Indemnitee
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acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company.
(d) The termination of any Action by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that Indemnitee did not act in a manner which he
believed to be in or not opposed to the best interests of the Company and, with
respect to any criminal Action, had reasonable cause to believe that his conduct
was unlawful.
(e) Notwithstanding any foregoing provision to the contrary, under no
circumstance shall the Company indemnify or hold Indemnitee harmless from and
against any liability for judgments, settlements, penalties, fines (including
excise taxes assessed with respect to an employee benefit plan), or expenses
(including attorney's fees) incurred by Indemnitee in a proceeding in which
Indemnitee is adjudged liable to the Company or is subjected to injunctive
relief in favor of the Company (i) for any appropriation, in violation of his
duties, of any business opportunity of the Company, (ii) for acts or omissions
that involve intentional misconduct or knowing violation of law, (iii) for the
types of liability set forth in Section 14-2-832 of Georgia Business Corporation
Code, or (iv) for any transaction from which he received an improper personal
benefit.
(f) Notwithstanding any foregoing provision to the contrary, under no
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circumstance shall the Company indemnify or hold Indemnitee harmless from and
against any liability for judgments, settlements, penalties, fines (including
excise taxes assessed with respect to an employee benefit plan), or expenses
(including attorney's fees) incurred by Indemnitee in a proceeding in which
Indemnitee is adjudged liable to the Company or any the Company's affiliates or
is subjected to injunctive relief in favor of the Company or any of the
Company's affiliates (i) in connection with the Employment Agreement by and
between Indemnitee and the Company dated as of the date hereof, (ii) in
connection with the Noncompetition Agreement by and between Indemnitee and the
Company (as defined therein) dated as of the date hereof, or (iii) in connection
with any other agreement which is executed by Indemnitee in connection with the
acquisition of the assets of NWI Warehouse Group, L.P. ("NWI") and certain of
NWI's affiliates by the Company and by certain of the Company's affiliates.
2. Partial Indemnification. If Indemnitee is entitled under any
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provision of this Agreement to indemnification by the Company for some or a
portion of any liability (including judgments, settlements, penalties, fines
(including excise taxes assessed with respect to an employee benefit plan),
interest or reasonable expenses (including attorney's fees)) actually incurred
by him but not entitled to indemnification for all of the total amount thereof,
the Company shall indemnify Indemnitee for such portion thereof to which
Indemnitee is entitled.
3. Advancement of Expenses. The Company agrees to pay, in advance
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of the final disposition of any Action (including, for this purpose, any
proceeding in Section 5 hereof) and within ten (10) days after Indemnitee's
written request, all reasonable expenses incurred by Indemnitee in defending or
acting as a witness in connection with such Action, including but not limited to
the investigation, defense, settlement or appeal of any Action, to which
Indemnitee is a
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Party or threatened in the reasonable judgment of Indemnitee to be made a Party
by reason of the fact that Indemnitee is or was an officer, director, employee
or agent of the Company, or has liability under Section 11(a)(3) of the
Securities Act of 1933, as amended, or is or was serving at the request of the
Company as an officer, director, agent or fiduciary of any corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise.
Indemnitee shall furnish the Company (i) a written affirmation of his good faith
belief that Indemnitee has met the standard of conduct set forth in Section 1(b)
of 1(c) hereof; and (ii) a written undertaking, executed personally or on
Indemnitee's behalf, to repay any advances if it is ultimately determined that
Indemnitee is not entitled to indemnification. Indemnitee agrees to reimburse
the Company for any such advancement if, when and to the extent it is ultimately
determined (by a court in a proceeding described in Section 5 or otherwise) that
Indemnitee is not entitled to indemnification pursuant to this Agreement.
4. Indemnification in Specific Actions.
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(a) The determination of whether, with respect to any specific
Action, Indemnitee has met the applicable standard of conduct set forth in
Section 1(b) or Section 1(c) hereof and is entitled to indemnification pursuant
to Section 1 hereof shall be made (i) by a majority vote of a quorum of members
of the Board of Directors of the Company not at the time parties to the Action;
(ii) if the quorum required by the foregoing clause (i) cannot be obtained, by a
majority vote of a committee duly designated by the Board of Directors (in which
designation directors who are parties to the Action may participate) and
consisting solely of two or more members of the Board of Directors not at the
time parties to the Action; (iii) if a determination cannot be made under (i) or
(ii) above, in a written opinion by independent legal counsel, selected by the
Board of Directors or its committee in the manner described in the foregoing
clauses (i) or (ii) (or, if a quorum of the
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Board of Directors as required by the foregoing clause (i) cannot be obtained
and a committee cannot be designated as required by the foregoing clause (ii),
by a majority vote of the full Board of Directors (in which selection directors
who are parties to the Action may participate); or (iv) if agreed to by
Indemnitee, by the vote of a majority of shares of the Company entitled to vote
thereon (excluding shares owned by, or the voting of which is controlled by,
directors who at the time are parties to the Action).
(b) In the event that the determination is made that Indemnitee is
entitled to indemnification or advancement of expenses in a specific Action
pursuant to Section 1 hereof, such a determination is binding upon the Company
in any subsequent proceedings in connection with such Action.
5. Enforcement of this Agreement.
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(a) Reasonable expenses incurred by Indemnitee in connection with his
request for indemnification hereunder shall be borne by the Company, unless
Indemnitee is determined not to be entitled to indemnification for any liability
or expense hereunder. In the event that Indemnitee is a party to or intervenes
in any proceeding in which the validity or enforceability of this Agreement is
at issue or seeks an adjudication or award in arbitration to enforce his rights
under, or to recover damages for breach of, this Agreement, Indemnitee, if he
prevails in whole or in part in such action, shall be entitled to recover from
the Company and shall be indemnified by the Company against any expenses
actually and reasonably incurred by him.
(b) In any proceeding in which the validity or enforceability of this
Agreement is at issue, or in which Indemnitee seeks an adjudication or award in
arbitration to enforce his rights hereunder, the Company shall have the burden
of proving that Indemnitee is not entitled to
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indemnification hereunder.
6. Termination of Service. Indemnitee's right to indemnification
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and advancement of expenses pursuant to this Agreement shall continue regardless
of whether Indemnitee has ceased for any reason to be a director of the Company
and shall inure to the benefit of the heirs of Indemnitee and the executors or
administrators of Indemnitee's estate.
7. Maintenance of Directors and Officers Liability Insurance. In
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the event the Company maintains policies of Directors and Officers Liability
Insurance, Indemnitee shall be named as an insured in such manner as to provide
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company's directors.
8. Subrogation. In the event Indemnitee receives a payment under
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this Agreement, the Company shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee, who shall do everything that may be
necessary to secure such rights, including the execution of such documents
necessary to enable the Company effectively to bring suit to enforce such
rights.
9. No Duplication of Payments. The Company shall not be liable
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under this Agreement to make any payment in connection with any Action to the
extent Indemnitee has otherwise actually received payment (under any insurance
policy, bylaw provision or otherwise) of the amounts otherwise indemnifiable
hereunder.
10. Non-Exclusivity. Indemnitee's rights under this Agreement shall
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be in addition to, and not in lieu of, any other rights Indemnitee may have
under any provision of the Company's Articles of Incorporation or Bylaws, the
Georgia Business Corporation Code or pursuant to any Directors or Officers
Liability Insurance. Nothing in this Agreement shall be deemed to
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diminish or otherwise restrict Indemnitee's right to indemnification under any
provision of the Company's Articles of Incorporation or Bylaws, the Georgia
Business Corporation Code or pursuant to any Directors and Officers Liability
Insurance, but the rights to indemnification hereunder shall in any event apply
notwithstanding any contrary provision in, or conflict with, any provision of
the Company's Articles of Incorporation or Bylaws, unless prohibited by law.
11. Binding Effect. This Agreement shall be binding upon and inure
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to the benefit of and be enforceable by the parties hereto and their respective
successors, assigns (including any direct or indirect successor by merger or
consolidation as provided in the Georgia Business Corporation Code), heirs,
executors and administrators.
12. Governing Law. This Agreement shall be deemed to be made in, and
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in all respects shall be interpreted, construed, and governed by and in
accordance with the laws of, the State of Georgia (without regard to the
conflict of laws principles thereof).
13. Severability. The Company and Indemnitee agree that the
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agreements and provisions contained in this Agreement are severable and
divisible, that each such agreement and provision does not depend upon any other
provision or agreement for its enforceability, and that each such agreement and
provision set forth herein constitutes an enforceable obligation between the
Company and Indemnitee. Consequently, the parties hereto agree that neither the
invalidity nor the unenforceability of any provision of this Agreement shall
affect the other provisions hereof, and this Agreement shall remain in full
force and effect and be construed in all respects as if such invalid or
unenforceable provision were omitted.
14. Certain Amendments. The Company may enter into any amendment to
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this Agreement required by applicable law without shareholder approval of such
amendment, unless
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shareholder approval is required by applicable law.
15. Letter of Credit. In order to secure the obligations of the
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Company to indemnify and advance expenses to Indemnitee pursuant to this
Agreement, the Company shall obtain and maintain for the benefit of Indemnitee,
for a period of five years from the time of any Change in Control, an
irrevocable standby letter of credit naming Indemnitee as the sole beneficiary
(the "Letter of Credit"). The Letter of Credit shall be in an appropriate
amount, not less than $1,000,000, issued by a financial institution having
assets in excess of $100,000,000, and contain terms and conditions reasonably
acceptable to Indemnitee. The Letter of Credit shall provide that Indemnitee
may from time to time draw certain amounts thereunder, upon written
certification by Indemnitee to the issuer of the Letter of Credit that (a)
Indemnitee has made a written request upon the Company for an amount not less
than the amount he is drawing under the Letter of Credit and that the Company
has failed or refused to provide him with such amount in full within thirty (30)
days after receipt of the request, or to advance expenses within ten (10) days
after receipt of the request, (b) Indemnitee believes that he is entitled under
the terms of this Agreement to the amount that he is drawing under the Letter of
Credit, and (c) there has not been a determination as contemplated under this
Agreement that Indemnitee is not entitled to indemnification under this
Agreement. The issuance of the Letter of Credit shall not in any way diminish
the Company's obligation to indemnify Indemnitee to the full extent required by
this Agreement. For the purposes hereof, a "Change in Control" shall be deemed
to have occurred if (i) any "Person" (as such term is used in Section 13(c) 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
corporation or a corporation owned directly or indirectly by the shareholders of
the Company in substantially the
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same proportions as their ownership of stock 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 more than 50% 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 shareholders was approved by a vote of at least two-
thirds (2/3) of the directors who either were directors at the beginning of the
two-year period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof.
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IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement as of the date first above written.
[CORPORATE SEAL] WEEKS CORPORATION
Attest:
By: ____________________ By: _______________________________
Secretary Name:
Title:
INDEMNITEE
__________________________________
Xxxx X. Xxxxxx, Xx.
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