INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is entered into as of this ___________
day of _____________, 1996, by and between Integrated Technology USA, Inc., a
Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxxxx("Indemnitee").
RECITALS
A. The Company is aware that because of the increased exposure to
litigation costs, talented and experienced persons are increasingly reluctant to
serve or continue serving as employees of corporations unless they are protected
by indemnification.
B. The Company has concluded that to retain Indemnitee as an employee
of the Company and/or its subsidiaries and to encourage such individual to take
the business risks necessary for the success of the Company and its
subsidiaries, the Company should contractually indemnify Indemnitee to the
extent set forth herein.
NOW, THEREFORE, the parties, intending to be legally bound, hereby
agree as follows:
1. Definitions.
(a) Agent. "Agent" with respect to the Company means any person who is
or was a director, officer, employee or other agent of the Company or a
Subsidiary of the Company; or is or was serving at the request of, for the
convenience of, or to represent the interests of, the Company or a Subsidiary of
the Company as a director, officer, employee or agent of another entity or
enterprise; or was a director, officer, employee or agent of a predecessor
corporation of the Company or a Subsidiary of the Company, or was a director,
officer, employee or agent of another entity or enterprise at the request of,
for the convenience of, or to represent the interests of such predecessor
corporation.
(b) Expenses. "Expenses" means all direct and indirect costs of any
type or nature whatsoever (including, without limitation, all attorneys' fees,
costs of investigation and related disbursements) incurred by the Indemnitee in
connection with the investigation, settlement, defense or appeal of a claim or
Proceeding covered hereby or establishing or enforcing a right to
indemnification under this Agreement.
(c) Proceeding. "Proceeding" means any threatened, pending, or
completed claim, suit or action, whether civil,
criminal, administrative, investigative or otherwise.
(d) Subsidiary. "Subsidiary" means any corporation or other entity of
which more than 10% of the outstanding voting securities or interests is owned
directly or indirectly by the Company, and one or more other Subsidiaries, taken
as a whole.
2. Mandatory Indemnification. The Company shall defend, indemnify and
hold harmless Indemnitee:
(a) Third Party Actions. If Indemnitee is a person who was or is a
party or is threatened to be made a party to any Proceeding (other than an
action by or in the right of the Company) by reason of the fact that Indemnitee
is or was or is claimed to be an Agent of the Company, or by reason of anything
done or not done by Indemnitee in any such capacity, against any and all
Expenses and liabilities of any type whatsoever (including, but not limited to,
legal fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid
in settlement) incurred by such person in connection with the investigation,
defense, settlement or appeal of such Proceeding, so long as the Indemnitee
acted in good faith and in a manner the Indemnitee 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 such person's
conduct was unlawful.
(b) Actions by or in the Right of the Company. If Indemnitee is a
person who was or is a party or is threatened to be made a party to any
Proceeding by or in the right of the Company by reason of the fact that he is or
was an Agent of the Company, or by reason of anything done or not done by him in
any such capacity, against any and all Expenses and liabilities or any type
whatsoever (including, but not limited to, legal fees, judgments, fines, ERISA
excise taxes or penalties, and amounts paid in settlement) incurred by such
person in connection with the investigation, defense, settlement or appeal of
such Proceeding, so long as the Indemnitee acted in good faith and in a manner
the Indemnitee reasonably believed to be in or not opposed to the best interests
of the Company; except that no indemnification under this subsection shall be
made, and Indemnitee shall repay all amounts previously advanced by the Company,
in respect of any claim, issue or matter for which such person is judged in a
final, non-appealable decision to be liable to the Company by a court of
competent jurisdiction, unless and only to the extent that the court in which
such Proceeding was brought or the Court of Chancery of Delaware shall determine
that Indemnitee is fairly and reasonably entitled to indemnity.
(c) Actions Where Indemnitee Is Deceased. If Indemnitee is a person who
was or is a party or is threatened to be made a party to any Proceeding by
reason of the fact that he is or was
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an Agent of the Company, or by reason of anything done or not done by him in any
such capacity, and prior to, during the pendency of, or after completion of,
such Proceeding, the Indemnitee shall die, then the Company shall defend,
indemnify and hold harmless the estate, heirs and legatees of the Indemnitee
against any and all Expenses and liabilities incurred by or for such persons or
entities in connection with the investigation, defense, settlement or appeal of
such Proceeding on the same basis as provided for the Indemnitee in Sections
3(a) and 3(b) above.
The Expenses and liabilities covered hereby shall be net of any payments by
directors' and officers' liability insurance ("D&O Insurance") carriers or
others.
3. Partial Indemnification. If Indemnitee is found under Section 2, 6
or 9 hereof not to be entitled to indemnification for all of the Expenses and
liabilities relating to a Proceeding, the Company shall indemnify the Indemnitee
for any portion of such Expenses not specifically precluded by the operation of
such Section 2, 6 or 9.
4. Mandatory Advancement of Expenses. Until a determination to the
contrary under Section 6 hereof is made, and unless the provisions of Section 9
apply, the Company shall advance all Expenses incurred by Indemnitee in
connection with the investigation, defense, settlement or appeal of any
Proceeding to which Indemnitee is a party or is threatened to be made a party
covered by the indemnification in Section 2 hereof. As a condition to such
advances, Indemnitee shall, at the request of the Company, undertake in a
reasonable manner to repay such amounts advanced if it shall ultimately be
determined by a final order of a court that Indemnitee is not entitled to be
indemnified by the Company by the terms hereof or under applicable law. Subject
to Section 6 hereof, the advances to be made hereunder shall be paid by the
Company to Indemnitee within 20 days following delivery of a written request by
Indemnitee to the Company, which request shall be accompanied by vouchers,
invoices and similar evidence documenting the amounts requested.
5. Indemnification Procedures.
(a) Promptly after receipt by Indemnitee of notice to him or her of the
commencement or threat of any Proceeding or claim covered hereby, Indemnitee
shall notify the Company of the commencement or threat thereof, provided that
any failure to so notify shall not relieve the Company of any of its obligations
hereunder, except to the extent that such failure or delay increases the
liability of the Company hereunder.
(b) If, at the time of the receipt of a notice pursuant to Section 6(a)
above, Indemnitee is an officer or director and the
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Company has D&O Insurance in effect, the Company shall give prompt notice of the
Proceeding or claim to its insurers in accordance with the procedures set forth
in the applicable policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay all amounts payable as a result
of such Proceeding or claim in accordance with the terms of such policies, and
the Indemnitee shall not take any action (by waiver, settlement or otherwise)
which would adversely affect the ability of the Company to obtain payment from
its insurers.
(c) If the Company shall be obligated to pay the Expenses of the
Indemnitee, the Company may (and shall if requested by Indemnitee in writing)
assume the defense of the Proceeding to which the Expenses relate, in which
event the Company shall deliver a notice of assumption to Indemnitee. Any
counsel employed by the Company in connection with the defense of such
Proceeding shall be subject to approval by Indemnitee, such approval not to be
unreasonably withheld or delayed. The Company will not be liable to Indemnitee
under this Agreement for any fees or expenses of counsel incurred by Indemnitee
after delivery of such notice of assumption with respect to such Proceeding;
provided; however, that if Indemnitee shall have provided the Company with an
opinion of counsel stating that there is a strong argument that a conflict of
interest exists between the Company and Indemnitee in the conduct of any such
defense, the fees and Expenses of Indemnitee's counsel shall be at the expense
of the Company. Notwithstanding the fact that the Company assumes the defense of
a Proceeding pursuant to the preceding sentence, Indemnitee shall have the right
to employ his or her own counsel in any such Proceeding at Indemnitee's expense.
6. Determination of Right to Indemnification.
(a) To the extent Indemnitee has been successful on the merits or
otherwise in defense of any Proceeding, claim, issue or matter covered hereby,
Indemnitee need not repay any of the Expenses advanced in connection with the
investigation, defense or appeal of such Proceeding.
(b) If Section 6(a) is inapplicable, the Company shall remain
obligated to indemnify Indemnitee, and Indemnitee need not repay Expenses
previously advanced, unless the Company, by motion before a court of competent
jurisdiction, obtains an order for preliminary or permanent relief suspending or
denying the obligation to advance or indemnify for Expenses.
(c) Notwithstanding a determination by the Board or a court that
Indemnitee is not entitled to indemnification with respect to a specific
Proceeding, Indemnitee shall have the right to apply to the Court of Chancery of
Delaware for the purpose of enforcing Indemnitee's right to indemnification
pursuant to this
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Agreement.
(d) Notwithstanding any other provision in this Agreement to the
contrary, the Company shall indemnify Indemnitee against all Expenses incurred
by Indemnitee in connection with any Proceeding under Section 6(b) or 6(c) and
against all Expenses incurred by Indemnitee in connection with any other
Proceeding between the Company and Indemnitee involving the interpretation or
enforcement of the rights of Indemnitee under this Agreement unless a court of
competent jurisdiction finds that the material claims and/or defenses of
Indemnitee in any such Proceeding were frivolous or made in bad faith.
7. Certificate of Incorporation and By-Laws. The Company agrees that
the Company's Certificate of Incorporation and Bylaws in effect on the date
hereof shall not be amended to reduce, limit, hinder or delay (i) the rights of
Indemnitee granted hereby, or (ii) the ability of the Company to indemnify
Indemnitee as required hereby.
8. Witness Expenses. The Company agrees to compensate Indemnitee for
the reasonable value of his or her time spent, and to reimburse Indemnitee for
all Expenses (including attorneys' fees and travel costs) incurred by him or
her, in connection with being a witness, or if Indemnitee is threatened to be
made a witness, with respect to any Proceeding, by reason of his serving or
having served as an Agent of the Company.
9. Exceptions. (a) Notwithstanding any other provision hereunder to the
contrary, the Company shall not be obligated pursuant to the terms of this
Agreement:
1. Claims Initiated by Indemnitee. To indemnify or advance Expenses to
Indemnitee with respect to Proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense (other than Proceedings
brought to establish or enforce a right to indemnification under this Agreement
or the provisions of the Company's Certificate of Incorporation or By-laws
unless a court of competent jurisdiction determines that each of the material
assertions made by Indemnitee in such Proceeding were not made in good faith or
were frivolous).
2. Unauthorized Settlements. To indemnify Indemnitee under this
Agreement for any amounts paid in settlement of a Proceeding covered hereby
without the prior written consent of the Company to such settlement.
(b) The Delaware General Corporation Law (including, without
limitation, Section 145 thereof) contains certain limitations on the right of a
corporation to indemnify and advance expenses to its officers and directors.
Although Indemnitee is not currently an officer or director of the Company,
Indemnitee agrees that
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such limitations shall apply to the Company's obligations hereunder to the same
extent as if Indemnitee were an officer of the Company.
10. Non-exclusivity. This Agreement is not the exclusive arrangement
between the Company and Indemnitee regarding the subject matter hereof and shall
not diminish or affect any other rights which Indemnitee may have under any
provision of law, the Company's Certificate of Incorporation or By-laws, under
other agreements, or otherwise.
11. Continuation After Term. Indemnitee's rights hereunder shall
continue after the Indemnitee has ceased acting as a director or Agent of the
Company and the benefits hereof shall inure to the benefit of the heirs,
executors and administrators of Indemnitee.
12. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable, provisions of the
Agreement shall not in any way be affected or impaired thereby, and to the
fullest extent possible, the provisions of this Agreement shall be construed or
altered by the court so as to remain enforceable and to provide Indemnitee with
as many of the benefits contemplated hereby as are permitted under law.
13. Counterparts, Modification and Waiver. This Agreement may be signed
in counterparts. This Agreement constitutes a separate agreement between the
Company and Indemnitee and may be supplemented or amended as to Indemnitee only
by a written instrument signed by the Company and Indemnitee, with such
amendment binding only the Company and Indemnitee. All waivers must be in a
written document signed by the party to be charged. No waiver of any of the
provisions of this Agreement shall be implied by the conduct of the parties. A
waiver of any right hereunder shall not constitute a waiver of any other right
hereunder.
13. Notices. All notices, demands, consents, requests, approvals and
other communications required or permitted hereunder shall be in writing and
shall be deemed to have been properly given if hand delivered (effective upon
receipt or when refused), or if sent by a courier freight prepaid (effective
upon receipt or when refused), in the case of the Company, at the addresses
listed below, and in the case of Indemnitee, at Indemnitee's address of record
at the office of the Company, or to such other addresses as the parties may
notify each other in writing.
To Company: Integrated Technology USA, Inc.
000 Xxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
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Attention: President
To Indemnitee: At the Indemnitee's residence address and facsimile number on the
records of the Company from time to time.
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14. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have entered into this
Indemnification Agreement effective as of the date first above written.
INTEGRATED TECHNOLOGY USA, INC.
By
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INDEMNITEE:
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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