EXHIBIT 10.21
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is made and entered into by and
between LandCARE USA, Inc., a Delaware corporation ("Company"), and Notre
Capital Ventures II, L.L.C., a Texas limited liability company ("Indemnitee").
INTRODUCTION
Indemnitee is an organizer and promoter of the Company and has provided,
and continues to provide, the Company with valuable expertise in connection with
the organization of the Company and the formulation of its strategy regarding
the consolidation of the landscaping industry and related matters. In
consideration of these services, the Company has agreed to indemnify Indemnitee
against any and all liabilities asserted against the Indemnitee or its managers,
officers, directors, employees, agents, members, partners and owners
(collectively, the "Indemnified Parties") in connection with or as a result of
Indemnitee's status as an organizer and/or promoter (as that term is defined in
Rule 405 under the Securities Act of 1933, as amended) of the Company. Based on
such premise, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. INDEMNIFICATION. The Company shall indemnify the Indemnified
Parties as follows:
1.1. The Company shall indemnify the Indemnified Parties when any of
such Indemnified Parties is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil
(including under federal and/or state securities laws), criminal, administrative
or investigative, by reason of the fact that the Indemnified Parties, or any of
them, is or was an organizer and/or promoter of the Company, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such Indemnified Parties in connection with
such action, suit or proceeding.
1.2. Expenses (including attorneys' fees) incurred by the
Indemnified Parties, or any of them, in defending any such civil (including
under federal and/or state securities laws), criminal, administrative, or
investigative action, suit or proceeding shall be paid by the Company in advance
of the final disposition of such action, suit or proceeding, within 14 days
after the receipt by the Company from the Indemnified Parties, or any of them,
of notice in which such Indemnified Party states that it has reasonably incurred
actual expenses in defending a civil (including under federal and/or state
securities laws), criminal, administrative, or investigative action, suit or
proceeding by reason of the fact that such Indemnified Party is or was an
organizer and/or promoter of the Company.
1.3. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 1 shall not be deemed exclusive of any other
rights to which the Indemnified Parties may be entitled under any law or
agreement, and shall continue after each of the Indemnified Parties has ceased
to be an organizer and/or promoter of the Company.
2. ATTORNEYS' FEES. If the Indemnified Parties, or any of them, institute
any legal action to enforce their rights under this Agreement, or to recover
damages for breach of this Agreement, such Indemnified Parties, if they prevail
in whole or in part, shall be entitled to recover from the Company all fees and
expenses (including attorneys' fees) incurred by such Indemnified Parties, or
any of them, in connection therewith.
3. DEPOSIT OF FUNDS IN TRUST. If the Company voluntarily decides to
dissolve or to file a petition for relief under the applicable bankruptcy,
moratorium or similar laws, then not later than 10 days prior to such
dissolution or filing, the Company shall deposit in trust for the sole and
exclusive benefit of the Indemnified Parties a cash amount equal to all amounts
previously authorized to be paid to the Indemnified Parties hereunder, such
amounts to be used to discharge the Company's obligations to the Indemnified
Parties hereunder. Any amounts in such trust not required for such purpose shall
be returned to the Company.
4. MERGER, CONSOLIDATION OR CHANGE IN CONTROL. If the Company is a
constituent corporation in a merger or consolidation, whether the Company is the
resulting or surviving corporation or is absorbed as a result thereof, or if
there is a change in control of the Company, The Indemnified Parties shall stand
in the same position under this Agreement with respect to the resulting,
surviving or changed corporation as the Indemnified Parties would have with
respect to the Company if its separate existence had continued or if there had
been no change in the control of the Company.
5. LITIGATION. To the best of Indemnitee's and Indemnitor's knowledge,
there is no action, suit or proceeding currently existing, pending or threatened
against Indemnitee.
6. MISCELLANEOUS PROVISIONS.
6.1. NOTIFICATION. Each party agrees to give prompt notice to the
other upon its discovery of facts giving rise to a claim for indemnity under the
provisions of this Agreement,
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including receipt by it of notice of any demand, assertion, claim, action or
proceeding, judicial or otherwise.
6.2. SURVIVAL. The provisions of this Agreement shall survive the
termination of any of the Indemnified Parties' status as an organizer and/or
promoter of the Company.
6.3. ENTIRE AGREEMENT. This Agreement constitutes the full
understanding of the parties and a complete and exclusive statement of the terms
and conditions of their agreement relating to the subject matter hereof and
supersedes all prior negotiations, understandings and agree ments, whether
written or oral, between the parties, their affiliates, and their respective
principals, shareholders, directors, officers, employees, consultants and agents
with respect thereto.
6.4. AMENDMENTS AND WAIVERS. No alteration, modification, amendment,
change or waiver of any provision of this Agreement shall be effective or
binding on any party hereto unless the same is in writing and is executed by all
parties hereto.
6.5. MODIFICATION AND SEVERABILITY. If a court of competent
jurisdiction declares that any provision of this Agreement is illegal, invalid
or unenforceable, then such provision shall be modified automatically to the
extent necessary to make such provision fully legal, valid or enforce able. If
such court does not modify any such provision as contemplated herein, but
instead declares it to be wholly illegal, invalid or unenforceable, then such
provision shall be severed from this Agreement, this Agreement and the rights
and obligations of the parties hereto shall be construed as if this Agreement
did not contain such severed provision, and this Agreement otherwise shall
remain in full force and effect.
6.6. ENFORCEABILITY. This Agreement shall be enforceable by and
against the Company, the Indemnified Parties and their respective successors and
assignees.
6.7. GOVERNING LAW. This Agreement shall be governed by, construed
under, and enforce in accordance with the laws of the State of Delaware without
reference to the conflict-of- laws provisions thereof.
6.8. MULTIPLE COUNTERPARTS. This Agreement may be executed by the
parties hereto in multiple counterparts, each of which shall be deemed an
original for all purposes, and all of which together shall constitute one and
the same instrument.
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The parties hereto have executed this Agreement on ____________, 1998.
COMPANY:
LandCARE USA, Inc.
By:__________________________________
Name: Xxxxxxx X. Xxxxx
Title: President
INDEMNITEE:
Notre Capital Ventures II, L.L.C.
By:__________________________________
Name: XXXXX XXXXXX
Title: PRESIDENT
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