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EXHIBIT 10.11
INDEMNIFICATION AGREEMENT
This Agreement is made and entered into as of ____________,
1999, between 3CI Complete Compliance Corporation, a Delaware
corporation ("3CI") and ____________________ (hereinafter called the
"Director").
WHEREAS, Director is a member of the Board of Directors of 3CI
and in that capacity is performing a valuable service for 3CI and
WHEREAS, the by-laws of the Corporation (the "By-laws")
provide for the indemnification of the officers, directors, and
employees of 3CI to the maximum extent authorized under law; and
WHEREAS, the Delaware General Corporation Law (the "State
Statute") specifically provides that it is not exclusive, and
contemplates that contracts may be entered into between 3CI and the
members of its Board of Directors with respect to the indemnification
of the directors; and
SO AS to induce Director to continue to serve as a member of
the Board of Directors of 3CI, 3CI has determined and agreed to enter
into this Agreement with Director.
NOW, THEREFORE, in consideration of Director's continued
service as a Director after the date of this Agreement, 3CI and
Director, each intending to be legally bound, hereby mutually covenant
and agree as follows:
1. Indemnity of Director. 3CI agrees to hold harmless and to
indemnify Director, his or her heirs, successors and estate
to the full extent authorized or permitted by the provisions
of the State Statute, or by any amendment of it or other
statutory provisions authorizing or permitting such
indemnification which is adopted after the date of this
Agreement.
2. Additional Indemnity. Without limiting the generality of
Section 1 herein, and subject only to the exclusions set
forth in Section 3 herein, 3CI further agrees to hold
harmless and indemnify Director, his or her heirs,
successors and estate:
a) Against any and all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by Director, his or
her heirs, successors and estate in connection with any
threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right
of 3CI) to which Director is, was or at any time
become, a party, or is threatened to be made a party,
by reason of the fact that Director is, was or at any
time becomes a director, officer, employee or agent of
3CI, or is or
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was serving or at any time serves at the request of 3CI
as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not
opposed to the best interests of 3CI, and with respect
to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not
act in good faith and in a manner which the person
reasonably believed to be in or not opposed to the best
interests of 3CI, and, with respect to any criminal
action or proceeding, had reasonable cause to believe
that the person's conduct was unlawful; and
b) Against any and all expenses actually and reasonably
incurred (including attorneys' fees) by Director, his
or her heirs, successors and estate in connection with
any threatened, pending or completed action or suit by
or in the right of the corporation to procure a
judgment in its favor by reason of the fact that
Director is, was or at any time becomes a director,
officer, employee or agent of 3CI, or is or was serving
or at any time serves at the request of 3CI as a
director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not
opposed to the best interests of 3CI, except that no
indemnification shall be made in respect of any claim,
issue or matter as to which the Director, his or her
heirs, successors and estate shall have been adjudged
to be liable to the corporation unless and only to the
extent that the Court of Chancery 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, such
person is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery or such
other court shall deem proper; and
c) Otherwise to the fullest extent as may be provided to
Director by 3CI under the nonexclusivity provisions of
the State Statute.
3. Limitations on Indemnity. No indemnity pursuant to Section 2
herein shall be paid by 3CI:
a) In respect of the amount of such losses for which the
Director is indemnified either pursuant to Section 1
herein or pursuant to any D & O Insurance purchased and
maintained by 3CI;
b) In respect to remuneration paid to Director if it shall
be determined by a
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final judgment or other final adjudication that such
remuneration was in violation of law:
c) On account of any suit in which judgment is rendered
against Director for an accounting of profits made from
the purchase or sale by Director of securities of 3CI
pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and its amendments or
similar provisions of any federal, state or local
statutory law;
d) For any breach of Director's duty of loyalty to 3CI or
its stockholders;
e) For acts or omissions of Director not in good faith or
which involve intentional misconduct or a knowing
violation of law;
f) For any transaction from which Director derived
improper personal benefit;
g) For any unlawful payment of dividends or unlawful stock
purchase or redemption as provided pursuant to the
State Statute;
h) With respect to any claim, issue or matter as to which
Director shall have been adjudged to be liable to
Corporation, unless and to the extent that a court of
competent jurisdiction deems Director to be entitled to
indemnification despite such adjudication of liability;
or
i) If a final decision by a Court having jurisdiction in
the matter shall determine that such indemnification is
not lawful.
4. Continuation of Indemnity. All agreements and obligations of
3CI contained herein shall continue during the period
Director is a director, officer, employee or agent of 3CI
(or is or was serving at the request of 3CI as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and
shall continue thereafter so long as Director shall be
subject to any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the
fact that Director was a director of 3CI or serving in any
other capacity referred to herein.
5. Notification and Defense of Claim. Promptly after receipt by
Director of notice of the commencement of any action, suit
or proceeding, Director will, if a claim in respect thereof
is to be made against 3CI under this Agreement, notify 3CI
of such commencement; but the omission to so notify 3CI will
not relieve 3CI from any liability which it may have to
Director otherwise than under this Agreement. With respect
to any such action, suit or proceeding as to which Director
notifies 3CI of its commencement:
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a) 3CI will be entitled to participate in it at its own
expense:
b) Except as otherwise provided below, to the extent that
it may wish, 3CI jointly with any other indemnifying
party similarly notified will be entitled to assume the
defense of it, with counsel satisfactory to Director.
After notice from 3CI to Director of its election to
assume the defense of it, 3CI will not be liable to
Director under this Agreement for any legal or other
expenses subsequently incurred by Director in
connection with the defense thereof other than
reasonable costs of investigation or as otherwise
provided below. Director shall have the right to employ
its counsel in such action, suit or proceeding but the
fees and expenses of such counsel incurred after notice
from 3CI of its assumption of the defense thereof shall
be at the expense of Director unless (i) the employment
of counsel by Director has been authorized by 3CI; (ii)
Director shall have reasonably concluded that there may
be a conflict of interest between 3CI and Director in
the conduct of the defense of such action; or (iii) 3CI
shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees
and expenses of counsel shall be at the expense of 3CI.
3CI shall not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of
3CI or as to which Director shall have made the
conclusion provided in this Section 5(b)(ii);
c) 3CI shall not be liable to indemnify Director under
this Agreement for any amounts paid in settlement of
any action or claim effected without its written
consent. 3CI shall not settle action or claim in any
manner which would impose any penalty or limitation on
Director without Director's written consent. Neither
Corporation nor Director will unreasonably withhold
their consent to any proposed settlement.
d) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other
subsections of this Agreement shall not be deemed
exclusive of any other rights to which the Director,
his or her heirs, successors and estate may be entitled
under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to an
action in the Director's official capacity and as to an
action in another capacity while holding such office.
6. Repayment of Expenses. Director agrees that Director will
reimburse 3CI for all reasonable expenses paid by 3CI in
defending any civil or criminal action, suit, or proceeding
against Director in the event and only to the extent that it
shall be ultimately determined that Director is not entitled
to be indemnified by 3CI for such expenses under the
provisions of the State Statute, the By-laws, this
Agreement, or otherwise.
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7. Enforcement.
a) 3CI expressly confirms and agrees that it has entered
into this Agreement and assumed the obligations imposed
on 3CI hereby in order to induce Director to continue
as a director of 3CI, and acknowledges that Director is
relying on this Agreement in continuing in such
capacity.
b) In the event Director is required to bring any action
to enforce rights or to collect moneys due under this
Agreement and is successful in such an action, 3CI
shall reimburse Director for all of Director's
reasonable fees and expenses in bringing and pursuing
such action, including attorneys' fees.
8. Separability. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the
others, so that if any provision shall be held to be invalid
or unenforceable for any reason, such invalidity or
unenforceability shall not affect the validity or
enforceability of the other provisions.
9. Governing Law, Binding Effect: Amendment and Termination.
a) The Agreement shall be interpreted and enforced in
accordance with the laws of the state of Delaware.
b) This Agreement shall be binding on Director and 3CI,
its successors and assigns, and shall inure to the
benefit Director, his or her heirs, personal
representatives and assigns and to the benefit 3CI, its
successors and assigns.
c) No amendment, modification, termination or cancellation
of this Agreement shall be effective unless in writing
signed by both parties hereto.
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In Witness whereof, the parties have executed this Agreement
on and as of the date first written above.
3CI Complete Compliance Corporation
By:
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Title:
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Date:
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Director:
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(Name)
Date:
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