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EXHIBIT 10.6
PROFESSIONAL TRANSPORTATION GROUP LTD., INC.
DIRECTOR'S
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of __________ ___ 1997, between Professional
Transportation Group Ltd., Inc., a Georgia corporation (the "Corporation"), and
_____________________________ (the "Director").
WHEREAS, the Director is a member of the Board of Directors of the Corporation
and in such capacity is performing a valuable service to the Corporation; and
WHEREAS, the Corporation's Bylaws (the "Bylaws") provide for the
indemnification of the directors of the Corporation pursuant to Sections
14-2-850 through 14-2-856 of the Georgia Business Corporation Code, as amended
to date (the "State Statute"); and
WHEREAS, the Bylaws and State Statute specifically contemplate that contracts
may be entered into between the Corporation and the members of its Board of
Directors with respect to indemnification of such directors; and
WHEREAS, in order to provide to the Director assurances with respect to the
protection provided against liabilities that he may incur in the performance of
his duties to the Corporation, and to thereby induce the Director to serve as a
member of its Board of Directors, the Corporation has determined and agreed to
enter into this contract with the Director.
NOW, THEREFORE, in consideration of the premises and the Director's continued
service as a director after the date hereof, the parties agree as follows:
1. BOARD-AUTHORIZED INDEMNIFICATION. The Corporation hereby agrees to
hold harmless and indemnify the Director to the full extent that the State
Statute, or any amendment thereof or other statutory provision adopted after
the date hereof, authorizes such indemnification by action of the Board of
Directors without shareholder approval. Such indemnification, and the
conditions and limitations thereon set forth in the State Statute, shall not in
any respect limit, condition or otherwise restrict the indemnification set
forth in Section 2 hereof.
2. SHAREHOLDER-AUTHORIZED INDEMNIFICATION. Subject only to the
exclusions set forth in Section 3 hereof, and in addition to the indemnity
specified in Section 1 hereof (but without duplication of payments with respect
to indemnified amounts), the Corporation hereby further agrees to hold harmless
and indemnify the Director against any and all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the Director in connection with any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative (including an action by
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or in the right of the Corporation), to which the Director is, was, or at any
time becomes a party, or is threatened to be made a party, by reason of the
fact that the Director is, was, or at any time becomes a director, officer,
employee or agent of the Corporation, or is or was serving or at any time
serves at the request of the Corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust, or other
enterprise.
3. LIMITATIONS ON SHAREHOLDER-AUTHORIZED INDEMNITY. No indemnity
pursuant to Section 2 hereof shall be paid by the Corporation:
(a) With respect to any proceeding in which the Director is
adjudged, by final judgment not subject to further appeal, liable to
the Corporation or is subjected to injunctive relief in favor of the
Corporation:
(i) for any appropriation, in violation of his duties, of
any business opportunity of the Corporation;
(ii) for acts or omissions which involve intentional
misconduct or a knowing violation of law;
(iii) for the types of liabilities set forth in Section
14-2-832 of the Georgia Business Corporation Code; or
(iv) for any transaction from which the Director received
an improper personal benefit;
(b) With respect to any suit in which final judgment is rendered
against the Director for an accounting of profits, made from the
purchase or sale by the Director of securities of the Corporation,
pursuant to the provisions of Section 16(b) of the Securities Exchange
Act of 1934 or similar provisions of any federal, state, or local
statutory law, or on account of any payment by the Director to the
Corporation in respect of any claim for such an accounting; or
(c) If a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful.
4. CONTRIBUTION. If the indemnification provided in Sections 1 and 2 is
unavailable and may not be paid to the Director for any reason other than those
set forth in paragraph (a) or (b) of Section 3, then in respect of any
threatened, pending, or completed action, suit, or proceeding in which the
Corporation is jointly liable with the Director (or would be if joined in such
action, suit or proceeding), the Corporation shall contribute to the amount of
expenses, judgments, fines, and settlements paid or payable by the Director in
such proportion as is appropriate to reflect (i) the relative benefits received
by the Corporation on the one hand and the Director on the other hand from the
transaction from which such action, suit, or proceeding arose, and (ii) the
relative fault of the Corporation on the one hand and of the Director on the
other in
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connection with the events which resulted in such expenses, judgments, fines,
or settlement amounts, as well as any other relevant equitable considerations.
The relative fault of the Corporation on the one hand and of the Director on
the other shall be determined by reference to, among other things, the parties'
relative intent, knowledge, access to information, and opportunity to correct
or prevent the circumstances resulting in such expenses, judgments, fines, or
settlement amounts. The Corporation agrees that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro
rata allocation or any other method of allocation that does not take account of
the foregoing equitable considerations.
5. CONTINUATION OF OBLIGATIONS. All agreements and obligations of the
Corporation contained herein shall continue during the period the Director is a
director, officer, employee, or agent of the Corporation (or is serving at the
request of the Corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise)
and shall continue thereafter for so long as the Director shall be subject to
any possible claim or threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, or investigative, by reason of the fact
that the Director was a director of the Corporation or serving in any other
capacity referred to herein.
6. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by the
Director of notice of the commencement of any action, suit, or proceeding, the
Director will, if a claim in respect thereof is to be made against the
Corporation under this Agreement (other than under Section 2 hereof), notify
the Corporation of the commencement thereof, but the omission to so notify the
Corporation will not relieve the Corporation from any liability which it may
have to the Director otherwise than under this Agreement. With respect to any
such action, suit, or proceeding as to which the Director so notifies the
Corporation:
(a) The Corporation will be entitled to participate therein at its
own expense; and
(b) Subject to Section 7 hereof, and if the Director shall have
provided his written affirmation of his good faith belief that his
conduct did not constitute behavior of the kind described in paragraph
3(a) hereof and that he is entitled to indemnification hereunder, the
Corporation may assume the defense thereof.
After notice from the Corporation to the Director of its election so
to assume such defense, the Corporation will not be liable to the Director
under this Agreement for any legal or other expenses subsequently incurred by
the Director in connection with the defense thereof, other than reasonable
costs of investigation or as otherwise provided below. The Director shall have
the right to employ its separate counsel in such action, suit, or proceeding,
but the fees and expenses of such counsel incurred after notice from the
Corporation of its assumption of the defense thereof shall be at the expense of
the Director unless (i) the employment of counsel by the Director has been
authorized by the Corporation, (ii) counsel designated by the Corporation to
conduct such defense shall not be reasonably satisfactory to the Director, or
(iii) the Corporation shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of such
counsel shall be at the expense of the
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Corporation. For the purposes of clause (ii) above, the Director shall be
entitled to determine that counsel designated by the Corporation is not
reasonably satisfactory if, among other reasons, the Director shall have been
advised by qualified counsel that, because of actual or potential conflicts of
interest in the matter between the Director, other officers or directors
similarly indemnified by the Corporation, and/or the Corporation,
representation of the Director by counsel designated by the Corporation is
likely to materially and adversely affect the Director's interest or would not
be permissible under applicable canons of legal ethics.
The Corporation shall not be liable to indemnify the Director under
this Agreement for any amounts paid in settlement of any action or claim
effected without the Corporation's written consent. The Corporation shall not
settle any action or claim in any manner which would impose any penalty or
limitation on the Director without the Director's written consent. Neither the
Corporation nor the Director will unreasonably withhold consent to any proposed
settlement.
7. ADVANCEMENT AND REPAYMENT OF EXPENSES. Upon request therefor
accompanied by reasonably itemized evidence of expenses incurred, and by the
Director's written affirmation of his good faith belief that his conduct met
the standard applicable to Board-authorized indemnification pursuant to Section
1 hereof or did not constitute behavior of the kind described in paragraph 3(a)
hereof and that he is entitled to indemnification hereunder, the Corporation
shall advance to the Director the reasonable expenses (including attorneys'
fees and costs of investigation and defense (including the fees of expert
witnesses, other professional advisors, and private investigators)) incurred by
him in defending any civil or criminal suit, action, or proceeding for which
the Director is entitled (assuming an applicable standard of conduct is met) to
indemnification pursuant to this Agreement. The Director agrees to reimburse
the Corporation for all reasonable expenses paid by the Corporation, whether
pursuant to this Section or Section 6 hereof, in defending any action, suit, or
proceeding against the Director in the event and to the extent that it shall
ultimately be determined that the Director is not entitled to be indemnified by
the Corporation for such expenses under either Section 1 or Section 2 of this
Agreement. Any advances and the Director's agreement to repay shall be
unsecured and interest-free.
8. AGREEMENT TO SERVE. The Director hereby agrees to continue to serve
as a director of the Corporation faithfully and to the best of his ability so
long as he is duly elected and qualified in accordance with the provisions of
the Corporation's bylaws or until such time as he tenders his resignation in
writing.
9. ENFORCEMENT
(a) The Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on it
hereby in order to induce the Director to serve as a director of the
Corporation and acknowledges that the Director will in the future be
relying upon this Agreement in continuing to serve in such capacity.
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(b) In the event the Director is required to bring any action to
enforce rights or to collect moneys due under this Agreement and is
successful in such action, the Corporation shall reimburse the
Director for all of the Director's reasonable fees and expenses in
bringing and pursuing such action.
10. SEPARABILITY. Each of the provisions of this Agreement is a separate
and distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable in whole or in part for any
reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
11. VESTED RIGHTS, SPECIFIC PERFORMANCE. No amendment to the articles of
incorporation or bylaws of the Corporation or any other corporate action shall
in any way limit the Director's rights under this Agreement. In any proceeding
brought by or on behalf of the Director to specifically enforce the provisions
of this Agreement, the Corporation hereby waives the claim or defense therein
that the plaintiff or claimant has an adequate remedy at law, and the
Corporation shall not urge in any such proceeding the claim or defense that
such remedy at law exists. The provisions of this Section 11, however, shall
not prevent the Director from seeking a remedy at law in connection with any
breach of this Agreement.
12. LIABILITY INSURANCE. In the event that the Corporation maintains an
insurance policy or policies providing Directors' or Officers' liability
insurance, the Director shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
provided under such policy or policies in effect. Copies of all correspondence
between the Corporation and the company or companies providing such insurance
shall be promptly delivered to the Director by the Corporation.
13. NON-EXCLUSIVITY, ETC. The rights of the Director hereunder shall be
in addition to any other rights with respect to indemnification, advancement of
expenses or otherwise that the Director may have under the Corporation's bylaws
or the Georgia Business Corporation Code or otherwise.
14. SUBROGATION. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Director, who shall execute all papers required and
shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Corporation effectively to
bring suit to enforce such rights.
15. NO DUPLICATION OF PAYMENTS. The Corporation shall not be liable under
this Agreement to make any payment to the Director hereunder to the extent the
Director has otherwise actually received payment (under insurance policy, bylaw
or otherwise) of the amounts otherwise payable hereunder.
16. APPLICABILITY OF AGREEMENT. This Agreement shall apply only with
respect to acts or omissions of the Director occurring on or after the
effective date hereof, and this Agreement
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shall continue in effect regardless of whether the Director continues to serve
as a Director, but only in respect of acts or omissions occurring prior to the
termination of the Director's service as a Director.
17. GOVERNING LAW; SUCCESSORS; AMENDMENT AND TERMINATION.
(a) This Agreement shall be interpreted and enforced in accordance
with the laws of the State of Georgia.
(b) This Agreement shall be binding upon the Director and the
Corporation and its successors and assigns (including any transferee
of all or substantially all of its assets and any successor by merger
or otherwise by operation of law), and shall inure to the benefit of
the Director, his heirs, personal representatives, and assigns and to
the benefit of the Corporation and 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
DIRECTOR PROFESSIONAL TRANSPORTATION
GROUP LTD., INC.
------------------------- By:
Name: -------------------------------------
Xxxxxx X. Xxxxx,
President and Chief Executive Officer
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