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EXHIBIT 10.5
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT is entered into as of ____________, 1996, by and
among Xxxxxx Capital Group, Inc. ("TCG") and those certain persons listed on
Schedule A hereof (the "Xxxxxx Family") and represented by the members of the
Xxxxxx Family shown on the signature page hereof, for the purposes described
below.
RECITALS
WHEREAS, the Xxxxxx Family and Xxxx Xxxxxx Financial Group, Inc. ("CTFG")
entered into an Amended and Restated Share Exchange Agreement dated as of June
12, 1996 (the "Share Exchange Agreement");
WHEREAS, pursuant to Section 7(c) of the Share Exchange Agreement, the
Xxxxxx Family has formed TCG; and
WHEREAS, TCG desires to indemnify the Xxxxxx Family for certain
liabilities under the Share Exchange Agreement;
NOW THEREFORE, the parties agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "PROCEEDING" means any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing, or any
other proceeding, pending, threatened or completed, whether civil,
criminal, administrative or investigative, in which a Xxxxxx Family member
is a party or threatened to be a party:
(i) arising, caused by, or as a result of a breach by TCG of the
Section 7(c) Agreement dated _________, 1996 between TCG and CTFG;
and/or
(ii) arising from or relating to the following sections of the
Share Exchange Agreement:
Section 3
Section 5.2(a) (last two sentences only)
Section 5.2(b) (last two sentences only)
Section 10(g)(i) (first sentence only),
10(g)(ii)(other than a breach of 10(g)(ii)(x))
Section 10(h)
Section 10(j) (second sentence only)
Section 10(n)(iii)
Section 15(a) (other than Section 15(a)(i))
Section 16
Section 17
(b) "CLOSING" means the closing of the transactions contemplated by
the Share Exchange Agreement.
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(c) "EXPENSES" means all reasonable attorneys' fees, retainers, court
costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, or being or preparing to be a
witness in a Proceeding.
(d) "LIABILITIES" means any judgments, fines, penalties, or similar
payments or amounts paid or incurred by a Xxxxxx Family member in
connection with any Proceeding, amounts paid or incurred by a Xxxxxx Family
member or on a Xxxxxx Family member's behalf in settlement of any
Proceeding, and all Expenses.
2. INDEMNIFICATION. TCG shall hold harmless and indemnify each member of
the Xxxxxx Family against all Liabilities and advance to each Xxxxxx Family
member all Expenses to the fullest extent permitted by law; provided, however,
that TCG shall have no obligation to indemnify or hold harmless any member of
the Xxxxxx Family from any Liability caused by such Xxxxxx Family member's
knowing or reckless breach of any representation, warranty or covenant
contained in the Share Exchange Agreement.
3. ADVANCEMENT OF EXPENSES. Notwithstanding anything to the contrary in
this Agreement, TCG shall advance all Expenses incurred by or on behalf of a
Xxxxxx Family member in connection with any Proceeding within five (5) days
after the receipt by TCG of a statement from such Xxxxxx Family member
requesting the advance from time to time, whether prior to or after final
disposition of the Proceeding. Each statement shall reasonably evidence the
Expenses incurred by such Xxxxxx Family member. Each Xxxxxx Family member
hereby undertakes to repay promptly any Expenses advanced if it shall
ultimately be determined that such Xxxxxx Family member is not entitled to be
indemnified against such Expenses. Any advances and the undertaking to repay
pursuant to this Section 3 shall be unsecured and, until thirty (30) days after
the date on which it is determined that such Xxxxxx Family member is not
entitled to be so indemnified, interest free.
4. EXPENSES UNDER THIS AGREEMENT. Notwithstanding any other provision in
this Agreement to the contrary, TCG shall indemnify each Xxxxxx Family member
against all expenses incurred by such Xxxxxx Family member against all Expenses
incurred by such Xxxxxx Family member in connection with any action between the
TCG and such Xxxxxx Family member involving the interpretation or enforcement
of the rights of such Xxxxxx Family member under this Agreement.
5. GENERAL PROVISIONS.
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5.1 EFFECTIVE DATE. This Agreement shall be effective upon the
Closing, and shall be of no force and effect until the Closing.
5.2 AMENDMENTS AND WAIVER. No amendment, waiver or consent with
respect to any provision of this Agreement shall in any event be effective,
unless the same shall be in writing and signed by the parties hereto, and then
such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
5.3 NON-EXCLUSIVITY. The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which a Xxxxxx Family member may at any time be
entitled under applicable law, the articles of incorporation or bylaws of any
corporation, any other agreement, a vote of shareholders, a resolution of
directors, or otherwise.
5.4 SUBROGATION. In the event of any payment under this Agreement,
TCG shall be subrogated to the extent of such payment to all of the rights of
recovery of each Xxxxxx Family member, who shall execute all papers required and
take all action necessary to secure such rights, including execution of such
documents as are necessary to enable TCG to bring suit to enforce such rights.
5.5 NO DUPLICATIVE PAYMENT. TCG shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that a Xxxxxx Family member has otherwise actually received
such payment under any insurance policy, contract, agreement, or otherwise.
5.6 NOTICES. All notices, requests, consents, demands and other
communications hereunder must be in writing.
5.7 COUNTERPARTS. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.8 SUCCESSORS AND ASSIGNS. This Agreement, and the rights and
obligations of the parties hereunder, shall inure to and be binding on the
parties hereto and their respective successors and assigns. TCG may not assign
any rights, benefits, duties or obligations under this Agreement, without the
prior written consent of the Xxxxxx Family.
5.9 ENTIRE AGREEMENT. This Agreement and the documents referred to
herein contain the entire agreement and understanding among the parties with
respect to the transactions contemplated hereby and supersede all other
agreements, understandings and undertakings among the parties on the subject
matter hereof.
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5.10 SEVERABILITY. If any provision or provisions of this Agreement
shall be held to be invalid or unenforceable for any reason whatsoever: (a) the
validity, legality, and enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid or unenforceable) shall not in any way
be affected or impaired thereby; and (b) to the fullest extent possible, the
remaining provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to
be invalid or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision or provisions held invalid or unenforceable.
5.11 GOVERNING LAW. This Agreement shall be construed, enforced and
interpreted in accordance with the substantive laws of the State of Delaware
applicable to contracts made and to be performed wholly within said State.
5.12 NO THIRD PARTY RIGHTS. This Agreement does not create any
rights, claims or benefits inuring to any person that is not a party hereto nor
create or establish any third-party beneficiary hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
XXXXXX CAPITAL GROUP, INC.
By:
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Name:
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Title:
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"XXXXXX FAMILY" REPRESENTATIVES
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Xxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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Xxxx Xxxxxx
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EXHIBIT A
XXXXXX FAMILY
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Directly Owned Shares
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Xxxxxx Xxxxxx 53,900
Xxxxxxx Xxxxxx 86,880
Xxxxx Xxxxxx 126,880
Xxxxx Xxxxx 126,880
Indirectly Owned Shares
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Xxxx Xxxxxx TR FBO Xxxx Xxxxxx 21,720
Xxxxxx Xxxxx TR/BT Gift Trust 26,480
Xxxxxx Xxxxx TR/Xxxxx Xxxxxx Xxxxxx 8,800
Xxxx Xxxxxx TR/Xxxxx Xxxxxx Xxxxxx 11,320
Xxxx Xxxxxx TR/Xxxxx Xxxxxx 21,720
Xxxx Xxxxxx TR/Xxxxx Xxxxxx 21,720
Xxxxxx Xxxxx TR/Tark/Xxxxx Xxxxxx 211,320
Xxxx Xxxxxx TR/Xxxxx Xxxxxx Xxxxx 21,720
Xxxxxx Xxxxx TR/Tark/Xxxxx Xxxxxx Xxxxx 211,320
Xxxxxx Xxxxx TR/Xxxxx Xxxxxx 26,520
Xxxx Xxxxxx Bank/FBO SJT 38,040
Xxxx Xxxxxx Bank/Xxxx Xxxx Fund 152,200
Xxxxxx Xxxxx TR/FBO X. Xxxxx 8,800
Xxxx Xxxxxx TR/FBO X. Xxxxx 4,640
Xxxxxx Xxxxx TR/FBO X. X. Xxxxxx 8,800
Xxxx Xxxxxx TR/FBO Xxxxx Xxxxxx 21,760
Xxxxxx Xxxxx TR/Tark/Xxxxx Xxxxxx 261,320
Xxxxxx Xxxxx TR/Tark/X. Xxxxx 261,320
Xxxxxx Xxxxx TR/Tark/X. Xxxxxx 261,320
Xxxxxx Xxxxx TR/JWT Gift Trust 26,520
Xxxx Xxxxxx TR/FBO JWT 17,800
Xxxxxx Xxxxx TR/Tark/X. Xxxxxx 211,320
Xxxxxx Xxxxx TR/FBO Xxxx Xxxxxx 4,800
Xxxx Xxxxxx TR/FBO Xxxx Xxxxxx 16,960
Xxxx Xxxxxx TR/FBO Xxxxxxx Xxxxxx 21,760
Xxxxxx Xxxxx TR/FBO X. Xxxxx 8,800
Xxxx Xxxxxx TR/FBO X. Xxxxx 11,320
Xxxxxx Xxxxx TR/FBO Xxxx Xxxxxx 8,800
Xxxx Xxxxxx TR/FBO Xxxx Xxxxxx 1,480
Xxxx Xxxxxx TR/FBO Xxxxxxxxx Xxxxxx 16,960
Xxxxxx Xxxxx TR/FBO Xxxxxxxxx Xxxxxx 4,800
Xxxxxx Family Partnership 750,000
Xxxxxx X Xxxxxx Trust under self 509,280
Xxxxx Xxxxxx Trust 40,000
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