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EXHIBIT 10.8
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is made and entered into by and
between Xxxxxxx Holdings, Inc. a Texas corporation ("Company"), and
______________ ("Indemnitee") (together, the "Parties").
INTRODUCTION
Indemnitee is a director of the Company. The Parties desire that the
Company provide indemnification (including advancement of expenses) to
Indemnitee against any and all liabilities asserted against Indemnitee to the
fullest extent permitted by the Texas Business Corporation Act - ("Act"), as
the Act presently exists and may be expanded from time to time. Based on such
premise, and for certain good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. Continued Service. Indemnitee will serve as a director of
the Company for so long as Indemnitee is duly elected and qualified in
accordance with the Bylaws of the company or until Indemnitee tenders his
registration to the Company.
2. Indemnification. The Company shall indemnify Indemnitee when
he was, is or is threatened to be made a named defendant or respondent in a
proceeding because Indemnitee is or was a director of the Company but only if
it is determined in accordance with Section 5 below that Indemnitee:
2.1 conducted himself in good faith;
2.2 reasonably believed:
(i) in the case of conduct in his official capacity as a director
of the Company, that his conduct was in the Company's best interests;
and
(ii) in all other cases, that his conduct was at least not opposed
to the Company's best interests; and
2.3 in the case of any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful.
The termination of a proceeding by judgment, order, settlement or
conviction, or on a plea of nolo contendere or its equivalent is not of itself
determinative that Indemnitee did not meet the requirements set forth in this
Section 2.
3. Limitation on Indemnification. Except to the extent permitted
by Section 4 below, Indemnitee shall not be indemnified under Section 2 above
in respect of a proceeding:
3.1 in which Indemnitee is found liable on the basis that personal
benefit was improperly received by him, whether or not the benefit resulted
from an action taken in his official capacity; or
3.2 in which Indemnitee is found liable to the Company.
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For the purposes hereof, Indemnitee shall be deemed to have been found
liable in respect of any claim, issue or matter only after the Indemnitee shall
have been so adjudged by a court of competent jurisdiction after exhaustion of
all appeals therefrom.
4. Extent of Indemnification. If Indemnitee is entitled to
indemnification under Section 2, the Company shall indemnify Indemnitee against
judgments, penalties (including excise and similar taxes), fines, settlements
and reasonable expenses actually incurred by Indemnitee in connection with the
proceeding; however, if the Indemnitee is found liable to the Company or is
found liable on the basis that personal benefit was improperly received by
Indemnitee, the indemnification (1) shall be limited to reasonable expenses
actually incurred by Indemnitee in connection with the proceeding, and (2)
shall not be made in respect of any proceeding in which Indemnitee shall have
been found liable for willful or intentional misconduct in the performance of
Indemnitee's duty to the Company. The reasonableness of the Indemnitee's
expenses contemplated in this Section 4 shall be determined in the same manner
that the determination of indemnification is made under Section 5.
5. Determination of Indemnification.
5.1 a determination of whether Indemnitee is entitled to
indemnification under Section 2 shall be made:
(i) by the Board of Directors of the Company by a majority vote of
a quorum consisting of directors who at the time of the vote are not
named defendants or respondents in the proceeding;
(ii) if such a quorum cannot be obtained, by a majority vote of a
committee of the Board of Directors, designated to act in the matter
by a majority vote of all directors, consisting sole of two or more
directors who at the time of the vote are not named defendants or
respondents in the proceeding;
(iii) by special legal counsel selected by the Board of Directors or
a committee of the Board of Directors by vote as set forth in
paragraphs 5.1(i) or 5.1(ii) of this Section 5, or, if such a quorum
cannot be obtained and such a committee cannot be established, by a
majority vote of all directors; or
(iv) by the shareholders in a vote that excludes the shares held by
directors who are named defendants or respondents in the proceeding.
5.2 the Board of Directors, independent legal counsel or
shareholders, as the case may be, shall make such determination of
indemnification under paragraph (a) of this Section 5 in accordance with the
following procedures:
(i) Indemnitee may submit to the Board of Directors a sworn
statement Request for Indemnification, substantially in the form of
Exhibit A, in which the Indemnitee requests indemnification from the
Company pursuant to this Agreement and states that he has met the
standard of conduct required for indemnification under Section 2.
(ii) The Indemnitee's submission of a Request for Indemnification
to the Board of Directors shall create a rebuttable presumption that
the Indemnitee has met the
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requirements set forth in Section 2 and, therefore, is entitled to
indemnification thereunder. The directors, special legal counsel or
shareholders, as the case may be, shall determine, within 30 days
after submission of the Request for Indemnification, specifically that
the Indemnitee is so entitled unless they or it possess clear and
convincing evidence to rebut the foregoing presumption, which evidence
shall be disclosed to the Indemnitee with particularity.
6. Mandatory Indemnification for Reasonable Expenses upon
Successful Defense. The Company shall indemnify Indemnitee against reasonable
expenses incurred by him in connection with a proceeding in which he is a named
defendant or respondent because he is or was a director of the Company if he
has been wholly successful, on the merits or otherwise, in the defense of the
proceeding. The reasonableness of the Indemnitee's expenses contemplated in
this Section 6 shall be determined in any manner set forth in Section 5.
7. Advancement of Reasonable Expenses. Reasonable expenses
incurred by Indemnitee who was, is or is threatened to be made a named
defendant or respondent in a proceeding shall be paid or reimbursed by the
Company, in advance of the final disposition of the proceeding, without the
determination specified in Section 5 or the determination as to the
reasonableness of such expenses contemplated in Sections 4 and 6, within 14
days after: the Company receives from Indemnitee, the Statement of
Undertaking, substantially in the form of Exhibit B, in which Indemnitee shall
state that he believes in good faith that he has met the standard of conduct
necessary for indemnification under Section 2, and (ii) the Indemnitee, or any
other person on behalf of Indemnitee, shall undertake to repay the amount paid
or reimbursed by the Company if it is ultimately determined that he has not met
those requirements or if it is ultimately determined that the indemnification
of Indemnitee against expenses incurred by him in connection with that
proceeding is prohibited by Section 5.
8. Merger, Consolidation or Change in Control. If the Company is
a constituent corporation in a merger or consolidation, whether the Company is
the resulting or surviving corporation or is absorbed as a result thereof, or
if there is a change in control of the Company, Indemnitee shall stand in the
same position under this Agreement with respect to the resulting, surviving or
changed corporation as Indemnitee would have with respect to the Company if its
separate existence had continued or if there had been no change in the control
of the Company.
9. Certain Definitions. For the purposes of this Agreement, the
following terms shall have the indicated meanings and understandings:
9.1 "director" means any person who is or was a director of the
Company and any person who, while an officer of the Company, is or was
serving at the request of the Company as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary
of another foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan or other
enterprise;
9.2 "expenses" include court costs and attorneys' fees;
9.3 "officer" means any person who is or was an officer of the
Company and any person who, while an officer of the Company, is or was
serving at the request of the Company as a director, officer, partner,
venturer, proprietor, trustee, employee, agent,
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or similar functionary of another foreign or domestic corporation,
partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise;
9.4 "official capacity"
(i) means when used with respect to a director, the
office of director in the Company; and
(ii) means when used with respect to a person other than a
director, the elective or appointive office in the Company
held by the officer or the employment or agency relationship
undertaken by the employee or agent on behalf of the Company;
but
(iii) in both paragraphs 9.4(i) and 9.4(ii), does not
include service for any other foreign or domestic corporation
or any partnership, joint venture, sole proprietorship, trust,
employee benefit plan, or other enterprise;
9.5 "proceeding" means any threatened, pending, or completed
action, suit or proceeding whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such
an action, suit or proceeding; and
9.6 "change of control" means any change in the ownership of a
majority of the capital stock of the Company or in the composition of
a majority of the members of the Board of Directors of the Company.
10. Attorneys' Fees. If Indemnitee institutes any legal action to
enforce Indemnitee's rights under this Agreement, or to recover damages for
breach of this Agreement, Indemnitee, if Indemnitee prevails in whole or in
part, shall be entitled to recover from the Company all fees and expenses
(including attorneys' fees) incurred by Indemnitee in connection therewith.
11. Amendments to Act. This Agreement is intended to provide
indemnity to Indemnitee to the fullest extent allowed under Texas law.
Accordingly, to the extent permitted by law, if the Act permits greater
indemnity than the indemnity set forth herein, or if any amendment is made to
the Act expanding the indemnity permissible under Texas law, the indemnity
obligations contained herein automatically shall be expanded, without the
necessity of action on the part of any party, to the extent necessary to
provide to Indemnitee the fullest indemnity permissible under Texas law.
12. Miscellaneous Provisions.
12.1 Survival. The provisions of this Agreement shall survive the
termination of Indemnitee's service as a director of the Company.
12.2 Entire Agreement. This Agreement constitute the full
understanding of the Parties and a complete and exclusive statement of
the terms and conditions of their agreement relating to the subject
matter hereof and supersedes all prior negotiations, understandings
and agreements, whether written or oral, between the Parties, their
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affiliates, and their respective principals, shareholders, directors,
officers, employees, consultants and agents with respect thereto.
12.3 Amendments and Waivers. No alteration, modification,
amendment, change or waiver of any provision of this Agreement shall
be effective or binding on any party hereto unless the same is in
writing and is executed by all Parties hereto.
12.4 Modification and Severability. If a court of competent
jurisdiction declares that any provision of this Agreement is illegal,
invalid or unenforceable, then such provision shall be modified
automatically to the extent necessary to make such provision fully
legal, valid or enforceable. If such court does not modify any such
provision as contemplated herein, but instead declares it to be wholly
illegal, invalid or unenforceable, then such provision shall be
severed from this Agreement, this Agreement and the rights and
obligations of the Parties hereto shall be construed as if this
Agreement did not contain such severed provision, and this Agreement
otherwise shall remain in full force and effect.
12.5 Enforceability. This Agreement shall be enforceable by and
against the Company, the Indemnitee and their respective executors,
legal representatives, administrators, heirs, successors and
assignees.
12.6 Governing Law. This Agreement shall be governed by, construed
under, and enforced in accordance with the laws of the State of Texas
without reference to the conflict-of-laws provisions thereof.
12.7 Multiple Counterparts. This Agreement may be executed by the
Parties hereto in multiple counterparts, each of which shall be deemed
an original for all purposes, and all of which together shall
constitute one and the same instrument.
The parties hereto have executed this Agreement to be effective as of December
4, 1996.
COMPANY:
XXXXXXX HOLDINGS, INC.
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
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Title: Chief Executive Officer
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INDEMNITEE:
By:
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