INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT is made as of January 31, 2000, by and
between Xxxxxxx Enterprises, Inc., a Louisiana corporation (the
"Corporation"), and G. Xxxxxxx Xxxxxxxx, Xx. ("Indemnitee").
In consideration of Indemnitee's continued service after the date
hereof, the Corporation and Indemnitee do hereby agree as follows:
1. AGREEMENT TO SERVE. Indemnitee shall serve or continue to serve
as an officer of the Corporation, and as a director or officer of any other
corporation, subsidiary, partnership, joint venture, trust or other
enterprise of which he is serving at the request of the Corporation, and
agrees to serve in such capacities for so long as he is duly elected or
appointed and qualified or until such earlier time as he tenders his
resignation in writing.
2. DEFINITIONS. As used in this Agreement:
(a) The term "Claim" shall mean any threatened, pending or
completed claim, action, suit or proceeding, including appeals, whether
civil, criminal, administrative or investigative and whether made
judicially or extra-judicially, including any action by or in the right of
the Corporation, or any separate issue or matter therein, as the context
requires.
(b) The term "Determining Body" shall mean (i) those members of
the Board of Directors who are not named as parties to the Claim for which
indemnification is being sought ("Impartial Directors"), if there are at
least three Impartial Directors, or (ii) a committee of at least three
Impartial Directors appointed by the Board or a duly authorized committee
thereof (regardless whether the directors voting on such appointment are
Impartial Directors) or (iii) if there are fewer than three Impartial
Directors or if the Board of Directors or the committee appointed pursuant
to clause (ii) of this paragraph so directs (regardless whether the
directors voting on such appointment are Impartial Directors), independent
legal counsel, which may be the regular outside counsel of the Corporation,
as designated by the Impartial Directors or, if no such directors exist,
the full Board of Directors.
(c) The term "Disbursing Officer" shall mean the President of
the Corporation or, if the President has a direct or indirect interest in
the Claim for which indemnification is being sought, any officer who does
not have such an interest and who is designated by the President to be the
Disbursing Officer with respect to indemnification requests related to the
Claim, which designation shall be made promptly after receipt of the
initial request for indemnification with respect to such Claim.
(d) The term "Expenses" shall mean any expenses or costs
including, without limitation, attorney's fees, judgments, punitive or
exemplary damages, fines, excise taxes or amounts paid in settlement.
(e) The term "Insurance Policy" shall mean the Directors and
Officers Liability Policy that the Corporation has obtained from CNA, and
the Excess Directors and Officers Liability Policies that the Corporation
has obtained from Reliance Insurance Co. and Chubb/Federal Insurance
Company, on behalf of its directors and officers for the policy period
commencing September 27, 1999 and ending September 27, 2000.
3. LIMITATION OF LIABILITY. To the fullest extent permitted by
Article VII of the Articles of Incorporation of the Corporation (as in
effect on the date hereof), Indemnitee shall not be liable for any breach
of his fiduciary duty. If and to the extent such provisions are amended to
permit further limitations of liability, Indemnitee shall not be liable for
any breach of his fiduciary duty to the fullest extent permitted after any
such amendment.
4. MAINTENANCE OF INSURANCE. (a) The Corporation represents and
warrants that it presently maintains in force and effect a directors and
officers liability insurance policy with coverage comparable to the
coverage provided under the Insurance Policy, and Indemnitee represents and
warrants that he has been furnished with a copy of the policy currently in
effect and of the Insurance Policy. Subject only to the provisions of
Section 4(b) hereof, the Corporation hereby agrees that, so long as
Indemnitee shall continue to serve in any capacity referred to in Section
5(a) hereof and thereafter so long as Indemnitee shall be subject to any
possible Claim, the Corporation shall use its commercially reasonable best
efforts to purchase and maintain in effect for the benefit of Indemnitee
one or more valid and enforceable policies of directors and officers
liability insurance providing, in all respects, coverage at least
comparable to that provided pursuant to the Insurance Policy.
(b) The Corporation shall not be required to purchase and
maintain the Insurance Policy or any comparable policy if directors and
officers liability insurance is not reasonably available or if, in the
reasonable business judgment of the then directors of the Corporation,
there is insufficient benefit to the Corporation from such insurance.
5. ADDITIONAL INDEMNITY.
(a) To the extent any Expenses incurred by Indemnitee are in
excess of the amounts reimbursed or indemnified pursuant to the provisions
of Section 4 hereof, the Corporation shall indemnify and hold harmless
Indemnitee against any Expenses actually and reasonably incurred by
Indemnitee (as they are incurred) in connection with any Claim against
Indemnitee, or involving Indemnitee solely as a witness or person required
to give evidence, by reason of Indemnitee's position as a (i) director or
officer of the Corporation, (ii) director or officer of any subsidiary of
the Corporation or as a fiduciary with respect to any employee benefit plan
of the Corporation, or (iii) director, officer, partner, employee or agent
of another corporation, partnership, joint venture, trust or other for-
profit or not-for-profit entity or enterprise, if such position is or was
held at the request of the Corporation, whether relating to service in such
position before or after the effective date of this Agreement, if (A)
Indemnitee is successful in his defense of the Claim on the merits or
otherwise or (B) Indemnitee has been found by the Determining Body to have
met the Standard of Conduct (as hereinafter defined); provided that (1) the
amount of Expenses for which the Corporation shall indemnify Indemnitee may
be reduced by the Determining Body to such amount as it deems proper if it
determines that the Claim involved the receipt of personal benefit by
Indemnitee, and (2) no indemnification shall be made in respect of any
Claim as to which Indemnitee shall have been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable for willful or intentional misconduct in the performance of his duty
to the Corporation or to have obtained an improper personal benefit,
unless, and only to the extent that, a court shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, Indemnitee is fairly and reasonably entitled
to indemnity for such Expenses which the court shall deem proper.
(b) For purposes of this Agreement, the "Standard of Conduct" is
met when conduct by Indemnitee with respect to which a Claim is asserted
was conduct performed in good faith which he reasonably believed to be in,
or not opposed to, the best interest of the Corporation, and, in the case
of a Claim which is a criminal action or proceeding, conduct that
Indemnitee had no reasonable cause to believe was unlawful. The termination
of any Claim by judgment, order, settlement, conviction, or upon a plea of
NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not meet the Standard of Conduct.
(c) Promptly upon becoming aware of the existence of any Claim
as to which Indemnitee may be indemnified for Expenses and as to which
Indemnitee desires to obtain indemnification, Indemnitee shall notify the
President of the Corporation, but the failure to promptly notify the
President shall not relieve the Corporation from any obligation hereunder,
except and to the extent that such failure has materially and irrevocably
harmed the Corporation's ability to defend against such Claim pursuant to
Section 5(f) hereof. Upon receipt of such request, the President shall
promptly advise the members of the Board of Directors of the request and
that the establishment of a Determining Body with respect thereto will be a
matter to be considered at the next regularly scheduled meeting of the
Board. If a meeting of the Board of Directors is not regularly scheduled
within 120 calendar days of the date the President receives notice of the
Claim, the President shall cause a special meeting of the Board of
Directors to be called within such period in accordance with the provisions
of the Corporation's By-laws. After the Determining Body has been
established, the President shall inform Indemnitee of the constitution of
the Determining Body and Indemnitee shall provide the Determining Body with
all facts relevant to the Claim known to him, and deliver to the
Determining Body all documents relevant to the Claim in his possession.
Before the 60th day (the "Determination Date") after its receipt from
Indemnitee of such information, together with such additional information
as the Determining Body may reasonably request of Indemnitee prior to such
date (the receipt of which shall not begin a new 60-day period), the
Determining Body shall determine whether or not Indemnitee has met the
Standard of Conduct and shall advise Indemnitee of its determination. If
Indemnitee shall have supplied the Determining Body with all relevant
information, including all additional information reasonably requested by
the Determining Body, any failure of the Determining Body to make a
determination by or on the Determination Date as to whether the Standard of
Conduct was met shall be deemed to be a determination that the Standard of
Conduct was met by Indemnitee.
(d) If at any time during the 60-day period ending on the
Determination Date, Indemnitee becomes aware of any relevant facts or
documents not theretofore provided by him to the Determining Body,
Indemnitee shall promptly inform the Determining Body of such facts or
documents, unless the Determining Body has obtained such facts or documents
from another source. The provision of such facts to the Determining Body
shall not begin a new 60-day period.
(e) The Determining Body shall have no power to revoke a
determination that Indemnitee met the Standard of Conduct unless Indemnitee
(i) submits fraudulent information to the Determining Body at any time
during the 60 days prior to the Determination Date or (ii) fails to comply
with the provisions of Sections 5(c) or 5(d) hereof, including without
limitation Indemnitee's obligation to submit information or documents
relevant to the Claim reasonably requested by the Determining Body prior to
the Determination Date.
(f) In the case of any Claim not involving any proposed,
threatened or pending criminal proceeding,
(i) if Indemnitee has, in the judgment of the Determining
Body, met the Standard of Conduct, the Corporation may, except as otherwise
provided below, individually or jointly with any other indemnifying party
similarly notified, assume the defense thereof with counsel reasonably
satisfactory to Indemnitee. If the Corporation assumes the defense of the
Claim, it shall keep Indemnitee informed as to the progress of such defense
so that Indemnitee may make an informed decision as to the need for
separate counsel. After notice from the Corporation that it is assuming
the defense of the Claim, it will not be liable to Indemnitee under this
Agreement for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense other than reasonable costs of
investigation or as otherwise provided below. Indemnitee shall have the
right to employ its own counsel in such action, suit or proceeding but the
fees and expenses of such counsel incurred after such notice from the
Corporation of its assumption of the defense shall be at the expense of
Indemnitee unless (A) the employment of counsel by Indemnitee has been
authorized by the Determining Body, (B) Indemnitee shall have concluded
reasonably that there may be a conflict of interest between the Corporation
and Indemnitee in the conduct of the defense of such action or (C) 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 counsel
shall be at the expense of the Corporation. The Corporation shall not be
entitled to assume the defense of any action, suit or proceeding brought by
or in the right of the Corporation or as to which Indemnitee shall have
made the conclusion provided for in (B) above; and
(ii) the Corporation shall fairly consider any proposals by
Indemnitee for settlement of the Claim. If the Corporation proposes a
settlement of the Claim and such settlement is acceptable to the person
asserting the Claim, or the Corporation believes a settlement proposed by
the person asserting the Claim should be accepted, it shall inform
Indemnitee of the terms of such proposed settlement and shall fix a
reasonable date by which Indemnitee shall respond. If Indemnitee agrees to
such terms, he shall execute such documents as shall be necessary to make
final the settlement. If Indemnitee does not agree with such terms,
Indemnitee may proceed with the defense of the Claim in any manner he
chooses, provided that if Indemnitee is not successful on the merits or
otherwise, the Corporation's obligation to indemnify such Indemnitee as to
any Expenses incurred following his disagreement with the Corporation shall
be limited to the lesser of (A) the total Expenses incurred by Indemnitee
following his decision not to agree to such proposed settlement or (B) the
amount that the Corporation would have paid pursuant to the terms of the
proposed settlement. If, however, the proposed settlement would impose
upon Indemnitee any requirement to act or refrain from acting that would
materially interfere with the conduct of Indemnitee's affairs, Indemnitee
may refuse such settlement and continue his defense of the Claim, if he so
desires, at the Corporation's expense in accordance with the terms and
conditions of this Agreement without regard to the limitations imposed by
the immediately preceding sentence. In any event, the Corporation shall
not be obligated to indemnify Indemnitee for any amount paid in a
settlement that the Corporation has not approved.
(g) In the case of any Claim involving a proposed, threatened or
pending criminal proceeding, Indemnitee shall be entitled to conduct the
defense of the Claim with counsel of his choice and to make all decisions
with respect thereto, provided, however, that the Corporation shall not be
obliged to indemnify Indemnitee for any amount paid in settlement of such a
Claim unless the Corporation has approved such settlement.
(h) After notifying the Corporation of the existence of a Claim,
Indemnitee may from time to time request the Corporation to pay the
Expenses (other than judgments, fines, penalties or amounts paid in
settlement) that he incurs in pursuing a defense of the Claim prior to the
time that the Determining Body determines whether the Standard of Conduct
has been met. The Disbursing Officer shall pay to Indemnitee the amount
requested (regardless of Indemnitee's apparent ability to repay such
amount) upon receipt of an undertaking by or on behalf of Indemnitee to
repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation under the circumstances,
provided, however, that if the Disbursing Officer does not believe such
amount to be reasonable, he shall advance the amount deemed by him to be
reasonable and Indemnitee may apply directly to the Determining Body for
the remainder of the amount requested.
(i) After the Determining Body has determined that the Standard
of Conduct has been met, for so long as and to the extent that the
Corporation is required to indemnify Indemnitee under this Agreement, the
provisions of Section 5(h) hereof shall continue to apply with respect to
Expenses incurred after such time except that (i) no undertaking shall be
required of Indemnitee and (ii) the Disbursing Officer shall pay to
Indemnitee the amount of any fines, penalties or judgments against him
which have become final and for which he is entitled to indemnification
hereunder, and any amount of indemnification ordered to be paid to him by a
court.
(j) Any determination by the Corporation with respect to
settlement of a Claim shall be made by the Determining Body.
(k) All determinations and judgments made by the Determining
Body hereunder shall be made in good faith.
6. ENFORCEMENT.
(a) The rights provided by this Agreement shall be enforceable
by Indemnitee in any court of competent jurisdiction.
(b) If Indemnitee seeks a judicial adjudication of his rights
under, or to recover damages for breach of, this Agreement, Indemnitee
shall be entitled to recover from the Corporation, and shall be indemnified
by the Corporation against, any and all expenses actually and reasonably
incurred by him in connection with such proceeding, but only if he prevails
therein. If it shall be determined that Indemnitee is entitled to receive
part but not all of the relief sought, then Indemnitee shall be entitled to
be reimbursed for all expenses incurred by him in connection with such
judicial adjudication if the amount to which he is determined to be
entitled exceeds 50% of the amount of his claim. Otherwise, the expenses
incurred by Indemnitee in connection with such judicial adjudication shall
be appropriately prorated.
(c) In any judicial proceeding described in this Section 6, the
Corporation shall bear the burden of proving that Indemnitee is not
entitled to the relief sought.
7. SAVING CLAUSE. If any provision of this Agreement is determined
by a court having jurisdiction over the matter to violate or conflict with
applicable law, the court shall be empowered to modify or reform such
provision so that, as modified or reformed, such provision provides the
maximum indemnification permitted by law and such provision, as so modified
or reformed, and the balance of this Agreement, shall be applied in
accordance with their terms. Without limiting the generality of the
foregoing, if any portion of this Agreement shall be invalidated on any
ground, the Corporation shall nevertheless indemnify Indemnitee to the full
extent permitted by any applicable portion of this Agreement that shall not
have been invalidated and to the full extent permitted by law with respect
to that portion that has been invalidated.
8. NON-EXCLUSIVITY. (a) The indemnification and advancement of
Expenses provided by or granted pursuant to this Agreement shall not be
deemed exclusive of any other rights to which Indemnitee is or may become
entitled under any statute, articles of incorporation, by-law,
authorization of stockholders or directors, agreement, or otherwise.
(b) It is the intent of the Corporation by this Agreement to
indemnify and hold harmless Indemnitee to the fullest extent permitted by
law, so that if applicable law would permit the Corporation to provide
broader indemnification rights than are currently permitted, the
Corporation shall indemnify and hold harmless Indemnitee to the fullest
extent permitted by applicable law notwithstanding that the other terms of
this Agreement would provide for lesser indemnification.
9. CONFIDENTIALITY. The Corporation and Indemnitee shall keep
confidential to the extent permitted by law and their fiduciary obligations
all information and determinations provided pursuant to or arising out of
the operations of this Agreement and the Corporation and Indemnitee shall
instruct its or his agents and employees to do likewise.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original but all of which
taken together shall be deemed to constitute a single instrument.
11. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of
Louisiana.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
Indemnitee and upon the Corporation, its successors and assigns, and shall
inure to the benefit of Indemnitee's heirs, personal representatives, and
assigns and to the benefit of the Corporation, its successors and assigns.
13. AMENDMENT. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless made in writing
signed by the Corporation and Indemnitee. Notwithstanding any amendment,
modification, termination or cancellation of this Agreement or any portion
hereof, Indemnitee shall be entitled to indemnification in accordance with
the provisions hereof with respect to any acts or omissions of Indemnitee
which occur prior to such amendment, modification, termination or
cancellation.
14. GENDER. All pronouns and variations thereof used in this
Agreement shall be deemed to refer to the masculine, feminine or neuter
gender, singular or plural, as the identity of the person, persons, entity
or entities referred to may require.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and signed as of the date and year first above written.
XXXXXXX ENTERPRISES, INC.
By: /S/ XXXXX X. XXXXXXXXX
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Xxxxx X. XxXxxxxxx
Compensation Committee Chairman
INDEMNITEE:
/S/ XXXXXXX XXXXXXXX, XX.
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G. Xxxxxxx Xxxxxxxx, Xx.
