1
EXHIBIT 8.9
INDEMNIFICATION AGREEMENT
THIS AGREEMENT, made and entered into as of the 11th day of November,
1998, by and between TEXAS TBS, INC., a Texas corporation whose address for
purposes of this Agreement is 0000 Xxxxx Xxxxxxx Xxxxxxx Xxxx Xxxxxxx, Xxxxx
00000-0000, as indemnitor; and XXXXXXX X. XxXXXXX ("CDMP" herein), whose address
for purposes of this Agreement is 00000 Xxxx Xxxxx, Xxxxxxx, Xxxxx 00000, as
indemnitee; WITNESSETH THAT:
WHEREAS, TOTAL BUILDING SYSTEMS, INC. is merging with TEXAS TBS, INC.,
and TEXAS TBS, INC. will be the survivor of that merger, as provided in that
certain Plan of Merger of even date herewith by and between the parties hereto;
and
WHEREAS, TOTAL BUILDING SYSTEMS, INC. is an active business entity and
a going concern with debts and obligations to third parties, incurred in the
ordinary course of business and otherwise; and
WHEREAS, under Article 5.06 of the Texas Business Corporation Act, upon
the merger the existence of TOTAL BUILDING SYSTEMS, INC. will cease, and the
ownership of property and allocation of liabilities and obligations of TOTAL
BUILDING SYSTEMS, INC. will vest in and be allocated to TEXAS TBS, INC.; and
WHEREAS, under that certain Acquisition / Merger Agreement dated
November 11, 1998, by and between MEGAWORLD, INC., TOTAL BUILDING SYSTEMS, INC.,
and CDMP, both MEGAWORLD and TEXAS TBS, INC. must each indemnify CDMP from and
against certain risks and liabilities; and
WHEREAS, CDMP, individually and as a shareholder of TOTAL BUSINESS
SYSTEMS, INC., entered into the said Acquisition / Merger Agreement and is
participating in the above-described merger in reliance upon compliance by
MEGAWORLD, INC. and TEXAS TBS, INC. with the terms and conditions of the
Acquisition / Merger Agreement, including without limitation execution of, and
compliance with, this agreement by TEXAS TBS, INC.;
NOW, THEREFORE, for and in consideration of the premises, TEXAS TBS,
INC. does hereby agree to defend, indemnify, and hold harmless CDMP, his agents,
personal representatives, heirs, successors, and assigns from and against all
loss, cost, risk, and expense arising from, or in any manner related to, any
obligation of TOTAL BUSINESS SYSTEMS, INC. ("TBS" herein), including without
limitation the following:
1. All obligations of TBS for which CDMP has given a personal guarantee
(or acted as co-signer or co-obligor) to any extent, and particularly
including without limitation any and all debt and other obligations of
TBS to Compass Bank and all obligations of CDMP under any guarantee of
any part thereof; and
2. Any and all loss, cost, risk, expense, claims, demands, causes of
action, and liabilities arising out of, or in any manner related to,
CDMP's capacity heretofore as an officer or director, or both, of TBS,
including without limitation any and all acts and omissions in either
capacity, and even including the negligence of CDMP, to the maximum
extent that TBS could have so indemnified CDMP under the Texas Business
Corporation Act, except for acts and omissions by CDMP which have been
found by final judgment of a court of competent jurisdiction to have
been gross negligence, violation of fiduciary duty, or crime of moral
turpitude; and the indemnity hereunder shall extend to all expenses
actually and necessarily incurred by CDMP in connection with the
defense of any action, suit, or proceeding in which CDMP is made a
party by reason of being or having been such director or officer,
including without limitation costs of investigation, expert witness
fees, travel expenses, and attorney's fees and
Page 1
Indemnification Agreement Initials of Texas TBS: /s/CDM
Indemnitor: Texas TBS, Inc.
Indemnitee: Xxxxxxx X. XxXxxxx Initials of CDMP: /s/CDM
2
3. All losses, costs, claims, demands, suits, liability, and expense with
respect to TBS which arise out of or relate to the ownership or
operation of the assets of TBS by TEXAS TBS, INC. and MegaWorld, or
either of them, or which in any manner relate to the condition of the
premises and equipment for any event which may occur or condition which
may arise from and after the Closing under the Acquisition / Merger
Agreement.
TEXAS TBS, INC. does further agree to defend, indemnify, and hold
harmless TBS and CDMP and their respective officers, directors, agents,
servants, employees, affiliated companies, heirs, successors, assigns, and
personal representatives from and against any and all loss, cost, risk, and
expense arising directly or indirectly, whether before or after Closing under
the Acquisition / Merger Agreement, from the failure, or alleged failure, by
TEXAS TBS, INC. and MegaWorld, or either of them, to comply with any applicable
governmental laws, orders, rules, and regulations, or failure to comply with any
obligations, terms, or conditions of any contract, obligation, or agreement of
TBS.
TEXAS TBS, INC. further does hereby release, forever discharge, and
acquit CDMP, his successors, assigns, agents, servants, and personal
representatives, of and from any and all claims, demands, damages, actions,
causes of action, and liabilities of whatsoever kind or nature, whether
heretofore or hereafter accruing, or whether now known or unknown by the
parties, for or on account of any matter or thing done, omitted, or suffered to
be done by CDMP in his capacity as an officer or director or both of TBS.
The shareholders of TEXAS TBS, INC. join in execution of this
instrument it evidence their consent hereto and to adopt, ratify, and confirm
this agreement. MegaWorld, Inc. and CDMP are all of the shareholders of TEXAS
TBS, INC.
The indemnification and releases provided for herein shall be given the
broadest interpretation so as to provide the maximum protection for CDMP, his
agents, personal representatives, heirs, successors, and assigns.
INDEMNITOR: INDEMNITEE:
TEXAS TBS, INC.
/s/ Xxxxxxx X. XxXxxxx
----------------------
By: /s/ Xxxxxxx X. XxXxxxx XXXXXXX X. XxXXXXX
----------------------
Xxxxxxx X. XxXxxxx, President
SHAREHOLDERS OF INDEMNITOR:
MEGAWORLD, INC.
/s/ Xxxxxxx X. XxXxxxx
----------------------
By: /s/ Xxxxx X. Roll XXXXXXX X. XxXXXXX
-----------------
Name: Xxxxx X. Roll
Office: President
[w7 tbs]tbstxindemn
Page 2
Indemnification Agreement Initials of Texas TBS: /s/CDM
Indemnitor: Texas TBS, Inc.
Indemnitee: Xxxxxxx X. XxXxxxx Initials of CDMP: /s/CDM
