Exhibit 10.6.1
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT dated as of October 16, 2000, is made by and
between Knight Transportation, Inc. (the "Corporation"), and Xxxxxxx X. Xxxx
(the "Indemnitee").
RECITALS
The Articles of Incorporation and By-Laws of the Corporation provide for
indemnification by the Corporation of its directors to the fullest extent
permitted by law. The Indemnitee has been serving and desires to continue to
serve as a director of the Corporation in part in reliance on such indemnity
provision.
To provide the Indemnitee with additional contractual assurance of
protection against personal liability in connection with certain proceedings
described below, the Corporation desires to enter into this Agreement.
In order to induce the Indemnitee to serve or continue to serve as a
director of the Corporation, and in consideration of the Indemnitee's so
serving, the Corporation desires to indemnify the Indemnitee and to make
arrangements pursuant to which the Indemnitee may be advanced or reimbursed
expenses incurred by Indemnitee in certain proceedings described below,
according to the terms and conditions set forth below.
AGREEMENT
THEREFORE, in consideration of the foregoing recitals and of Indemnitee's
serving or continuing to serve the Corporation as a director, the parties agree
as follows:
1. INDEMNIFICATION.
(a) In accordance with the provisions of subsection (b) of this
Section 1, the Corporation shall hold harmless and indemnify the Indemnitee
against any and all expenses, liabilities and losses (including, without
limitation, investigation expenses and expert witnesses' and attorneys' fees and
expenses, costs of court, judgments, penalties, fines, and amounts paid or to be
paid in settlement) actually incurred by the Indemnitee (net of any related
insurance proceeds or other amounts received by Indemnitee or paid by or on
behalf of the Corporation on the Indemnitee's behalf), in connection with any
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, to which the Indemnitee is a party or is threatened to be made a
party (a "Proceeding") based upon, arising from, relating to, or by reason of
the fact that Indemnitee is, was, shall be, or shall have been a director and/or
officer of the Corporation or is or was serving, shall serve, or shall have
served at the request of the Corporation as a director, officer, partner,
trustee, member, employee, or agent ("Affiliate Indemnitee") of another foreign
or domestic corporation or non-profit corporation, cooperative, partnership,
joint venture, limited liability company, trust or other incorporated or
unincorporated enterprise (each, a "Company Affiliate").
(b) Without limiting the generality of the foregoing, the Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1
for any expenses actually incurred in any Proceeding initiated by or in the
right of the Corporation, unless indemnification is barred by A.R.S. xx.xx.
10-851.D or 10-856.A, or any other applicable law.
(c) In providing the foregoing indemnification, the Corporation shall,
with respect to any proceeding, hold harmless and indemnify the Indemnitee to
the fullest extent not prohibited by the law of the State of Arizona, as in
effect from time and time, and the Articles of Incorporation. For purposes of
this Agreement, it is intended that the indemnification afforded hereby be
mandatory and the broadest possible under any then existing statutory provision
expressly authorizing the Corporation to indemnify directors or officers whether
in effect on the date of this Agreement or hereafter, provided, however, that
the indemnification provisions of this Agreement shall apply without regard to
whether any provision set forth in the Articles or Bylaws of the Corporation
authorizing or permitting indemnification shall be in force or effect.
2. OTHER INDEMNIFICATION AGREEMENTS. The Corporation may purchase and
maintain insurance or furnish similar protection or make other arrangements,
including, but not limited to, providing a trust fund, letter of credit, or
surety bond ("Indemnification Arrangements") on behalf of the Indemnitee against
any liability asserted against him or her or incurred by or on behalf of him or
her in such capacity as a director or officer of the Corporation or an
Affiliated Indemnitee, or arising out of his or her status as such, whether or
not the Corporation would have the power to indemnify him or her against such
liability under the provisions of this Agreement. The purchase, establishment,
and maintenance of any such Indemnification Arrangement shall not in any way
limit or affect the rights and obligations of the Corporation or of the
Indemnitee under this Agreement except as expressly provided herein, and the
execution and delivery of this Agreement by the Corporation and the Indemnitee
shall not in any way limit or affect the rights and obligations of the
Corporation or the other party or parties thereto under any such Indemnification
Arrangement. All amounts payable by the Corporation pursuant to this Section 2
and Section 1 hereof are herein referred to as "Indemnified Amounts." To the
extent the Corporation is able to obtain directors and officers liability
insurance of a reasonable premium (as determined by the Corporation in its sole
discretion); the Corporation shall use reasonable efforts to cause the
Indemnitee to be covered by such insurance.
3. ADVANCE PAYMENT OF INDEMNIFIED AMOUNTS.
(a) The Indemnitee hereby is granted the right to receive in advance
of a final, nonappealable judgment or other final adjudication of a Proceeding
(a "Final Determination") the amount of any and all expenses, including, without
limitation, investigation expenses, court costs, expert witnesses' and
attorneys' fees and other expenses expended or incurred by the Indemnitee in
connection with any Proceeding or otherwise expensed or incurred by the
Indemnitee (such amounts so expended or incurred being hereinafter referred to
as "Advanced Amounts").
(b) In making any written request for Advanced Amounts, the Indemnitee
shall submit to the Corporation a schedule setting forth in reasonable detail
the dollar amount expended or incurred and expected to be expended. Each such
listing shall be supported by the xxxx, agreement, or other documentation
-2-
relating thereto, each of which shall be appended to the schedule as an exhibit.
In addition, before the Indemnitee may receive Advanced Amounts from the
Corporation, the Indemnitee shall provide to the Corporation (i) a written
affirmation of the Indemnitee's good faith belief that the applicable standard
of conduct required for indemnification by the Corporation has been satisfied by
the Indemnitee, and (ii) a written undertaking by or on behalf of the Indemnitee
to repay the Advanced Amount if it shall ultimately be determined that the
Indemnitee has not satisfied any applicable standard of conduct. The written
undertaking required from the Indemnitee shall be an unlimited general
obligation of the Indemnitee but need not be secured. The Corporation shall pay
to the Indemnitee all Advanced Amounts within twenty (20) days after receipt by
the Corporation of all information and documentation required to be provided by
the Indemnitee pursuant to this paragraph.
4. PROCEDURE FOR PAYMENT OF INDEMNIFIED AMOUNTS.
(a) To obtain indemnification under this Agreement, the Indemnitee
shall submit to the Corporation a written request for payment of the appropriate
Indemnified Amounts, including with such requests such documentation and
information as is reasonably available to the Indemnitee and reasonably
necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification. The Secretary of the Corporation shall, promptly upon receipt
of such a request for indemnification, advise the Board of Directors in writing
that the Indemnitee has requested indemnification.
(b) The Corporation shall pay the Indemnitee the appropriate
Indemnified Amounts unless it is established that the Indemnitee engaged in one
of the Prohibited Acts, and such Prohibited Act was the subject matter of the
Proceeding. For purposes of determining whether the Indemnitee is entitled to
Indemnified Amounts, in order to deny indemnification to the Indemnitee, the
Corporation has the burden of proof in establishing (1) that the Indemnitee
engaged in the Prohibited Act, and (2) that the Prohibited Act was the subject
matter of the Proceeding. In this regard, a termination of any Proceeding by
judgment, order or settlement does not create a presumption that the Indemnitee
did not meet the requisite standard of conduct; provided, however, that the
termination of any criminal proceeding by conviction, or a pleading of nolo
contendere or its equivalent, or an entry of an order of probation prior to
judgment, creates a rebuttable presumption that the Indemnitee engaged in a
Prohibited Act. For purposes of this Agreement, a Prohibited Act shall mean any
act, omission or condition (i) described in A.R.S. ss. 10-851.D or 10-856.A for
which the Corporation may not indemnify the Indemnitee or (ii) any act, omission
or condition for which indemnity is not available under any federal or state law
or public policy.
(c) Any determination that the Indemnitee has engaged in a Prohibited
Act shall be made (i) either by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such Proceeding; or (ii)
by independent legal counsel (who may be the outside counsel regularly employed
by the Corporation); provided that the manner in which (and, if applicable, the
counsel by which) the right of indemnification is to be determined shall be
approved in advance in writing by both the highest ranking executive officer of
the Corporation who is not a party to such action (sometimes hereinafter
referred to as "Senior Officer") and by the Indemnitee. In the event that such
-3-
parties are unable to agree on the manner in which any such determination is to
be made, such determination shall be made by independent legal counsel retained
by the Corporation especially for such purpose, provided that such counsel be
approved in advance in writing by both the Senior Officer and the Indemnitee
and, provided further, that such counsel shall not be outside counsel regularly
employed by the Corporation. The fees and expenses of counsel in connection with
making the determination contemplated hereunder shall be paid by the
Corporation, and, if requested by such counsel, the Corporation shall give such
counsel an appropriate written agreement with respect to the payment of their
fees and expenses and such other matters as may be reasonably requested by
counsel.
(d) The Corporation will use its best efforts to conclude as soon as
practicable any required determination pursuant to subparagraph (c) above and
promptly will advise the Indemnitee in writing with respect to any determination
that the Indemnitee is or is not entitled to indemnification, including a
description of any reason or basis for which indemnification has been denied.
Payment of any applicable Indemnified Amounts will be made to the Indemnitee
within ten (10) days after any determination of the Indemnitee's entitlement to
indemnification.
(e) Notwithstanding the foregoing, the Indemnitee may, at any time
after sixty (60) days after a claim for Indemnified Amounts has been filed with
the Corporation (or upon receipt of written notice that a claim for Indemnified
Amounts has been rejected, if earlier) and before three (3) years after a claim
for Indemnified Amounts has been filed, petition a court of competent
jurisdiction to determine whether the Indemnitee is entitled to indemnification
under the provisions of this Agreement, and such court shall thereupon have the
exclusive authority to make such determination unless and until such court
dismisses or otherwise terminates such action without having made such
determination. The court shall, as petitioned, make an independent determination
of whether the Indemnitee is entitled to indemnification as provided under this
Agreement, irrespective of any prior determination made by the Board of
Directors or independent counsel. If the court shall determine that the
Indemnitee is entitled to indemnification as to any claim, issue or matter
involved in the Proceeding with respect to which there has been no prior
determination pursuant to this Agreement or with respect to which there has been
a prior determination that the Indemnitee was not entitled to indemnification
hereunder, the Corporation shall pay all expenses (including attorneys' fees and
court costs) actually incurred by the Indemnitee in connection with such
judicial determination.
5. AGREEMENT NOT EXCLUSIVE; SUBROGATION RIGHTS, ETC.
(a) This Agreement shall not be deemed exclusive of and shall not
diminish any other rights the Indemnitee may have to be indemnified or insured
or otherwise protected against any liability, loss, or expense by the
Corporation, any subsidiary of the Corporation, or any other person or entity
under any charter, bylaws, law, agreement, policy of insurance or similar
protection, vote of stockholders or directors, disinterested or not, or
otherwise, whether or not now in effect, both as to actions in the Indemnitee's
official capacity, and as to actions in another capacity while holding such
office. The Corporation's obligations to make payments of Indemnified Amounts
-4-
hereunder shall be satisfied to the extent that payments with respect to the
same Proceeding (or part thereof) have been made to or for the benefit of the
Indemnitee by reason of the indemnification of the Indemnitee pursuant to any
other arrangement made by the Corporation for the benefit of the Indemnitee.
(b) In the event the Indemnitee shall receive payment from any
insurance carrier or from the plaintiff in any Proceeding against such
Indemnitee in respect of Indemnified Amounts after payments on account of all or
part of such Indemnified Amounts have been made by the Corporation pursuant
hereto, such Indemnitee shall promptly reimburse to the Corporation the amount,
if any, by which the sum of such payment by such insurance carrier or such
plaintiff and payments by the Corporation or pursuant to arrangements made by
the Corporation to Indemnitee exceeds such Indemnified Amounts; provided,
however, that such portions, if any, of such insurance proceeds that are
required to be reimbursed to the insurance carrier under the terms of its
insurance policy, such as deductible or co-insurance payments, shall not be
deemed to be payments to the Indemnitee hereunder. In addition, upon payment of
Indemnified Amounts hereunder, the Corporation shall be subrogated to the rights
of Indemnitee receiving such payments (to the extent thereof) against any
insurance carrier (to the extent permitted under such insurance policies) or
plaintiff in respect to such Indemnified Amounts and the Indemnitee shall
execute and deliver any and all instruments and documents and perform any and
all other acts or deeds which the Corporation deems necessary or advisable to
secure such rights. Such right of subrogation shall be terminated upon receipt
by the Corporation of the amount to be reimbursed by the Indemnitee pursuant to
the first sentence of this paragraph.
6. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Corporation contained herein shall continue during the period Indemnitee is a
director of the Corporation (or is serving at the request of the Corporation as
an Affiliate Indemnitee) and shall continue thereafter so long as Indemnitee
shall be subject to any possible Proceeding by reason of the fact that
Indemnitee was a director, officer or employee of the Corporation or was serving
in any other capacity referred to herein.
7. SUCCESSORS; BINDING AGREEMENT. This Agreement shall be binding on and
shall inure to the benefit of and be enforceable by the Corporation's successors
and assigns and by the Indemnitee's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. The Corporation shall require any successor or assignee (whether
direct or indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business and/or assets of the Corporation, by written
agreement in form and substance reasonably satisfactory to the Corporation and
to the Indemnitee, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent that the Corporation would be required to
perform if no such succession or assignment had taken place.
8. ENFORCEMENT. The Corporation has entered into this Agreement and assumed
the obligations imposed on the Corporation hereby in order to induce the
Indemnitee to act as a director of the Corporation, and acknowledges that the
Indemnitee is relying upon this Agreement in continuing in such capacity. In the
event the Indemnitee is required to bring any action to enforce rights or to
collect monies due under this Agreement and is successful in such action, the
-5-
Corporation shall reimburse Indemnitee for all of the Indemnitee's fees and
expenses in bringing and pursuing such action. The Indemnitee shall be entitled
to the advancement of Indemnified Amounts to the full extent contemplated by
Section 3 hereof in connection with such Proceeding.
9. SEPARABILITY. Each of the provisions of this Agreement is a separate and
distinct agreement independent of the others, so that if any provision hereof
shall be held to be invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof, which other provisions shall remain in full force and effect.
10. MISCELLANEOUS. No provision of this Agreement may be modified, waived,
or discharged unless such modification, waiver, or discharge is agreed to in
writing signed by Indemnitee and either the Chairman of the Board or the
President of the Corporation or another officer of the Corporation specifically
designated by the Board of Directors. No waiver by either party at any time of
any breach by the other party of, or of compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same time or
at any prior or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement.
The validity, interpretation, construction, and performance of this Agreement
shall be governed by the laws of the State of Arizona, without giving effect to
the principles of conflicts of laws thereof. The Indemnitee may bring an action
seeking resolution of disputes or controversies arising under or in any way
related to this Agreement in the state or federal court jurisdiction in which
Indemnitee resides or in which his or her place of business is located, and in
any related appellate courts, and the Corporation consents to the jurisdiction
of such courts and to such venue.
11. NOTICES. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
If to Indemnitee: Xxxxxxx X. Xxxx
Knight Transportation, Inc.
0000 X. Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
If to Corporation: Knight Transportation, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Secretary
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
-6-
12. COUNTERPART. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
13. EFFECTIVENESS. This Agreement shall be effective as of October 16,
2000.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the day and year first above written.
KNIGHT TRANSPORTATION, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
Its Chief Executive Officer
INDEMNITEE
/s/ Xxxxxxx X. Xxxx
----------------------------------------
Xxxxxxx X. Xxxx
-7-
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT dated as of May 9, 2001, is made by and between
Knight Transportation, Inc. (the "Corporation"), and Xxxx Xxxxxx (the
"Indemnitee").
RECITALS
The Articles of Incorporation and By-Laws of the Corporation provide for
indemnification by the Corporation of its directors to the fullest extent
permitted by law. The Indemnitee has been serving and desires to continue to
serve as a director of the Corporation in part in reliance on such indemnity
provision.
To provide the Indemnitee with additional contractual assurance of
protection against personal liability in connection with certain proceedings
described below, the Corporation desires to enter into this Agreement.
In order to induce the Indemnitee to serve or continue to serve as a
director of the Corporation, and in consideration of the Indemnitee's so
serving, the Corporation desires to indemnify the Indemnitee and to make
arrangements pursuant to which the Indemnitee may be advanced or reimbursed
expenses incurred by Indemnitee in certain proceedings described below,
according to the terms and conditions set forth below.
AGREEMENT
THEREFORE, in consideration of the foregoing recitals and of Indemnitee's
serving or continuing to serve the Corporation as a director, the parties agree
as follows:
1. INDEMNIFICATION.
(a) In accordance with the provisions of subsection (b) of this
Section 1, the Corporation shall hold harmless and indemnify the Indemnitee
against any and all expenses, liabilities and losses (including, without
limitation, investigation expenses and expert witnesses' and attorneys' fees and
expenses, costs of court, judgments, penalties, fines, and amounts paid or to be
paid in settlement) actually incurred by the Indemnitee (net of any related
insurance proceeds or other amounts received by Indemnitee or paid by or on
behalf of the Corporation on the Indemnitee's behalf), in connection with any
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, to which the Indemnitee is a party or is threatened to be made a
party (a "Proceeding") based upon, arising from, relating to, or by reason of
the fact that Indemnitee is, was, shall be, or shall have been a director and/or
officer of the Corporation or is or was serving, shall serve, or shall have
served at the request of the Corporation as a director, officer, partner,
trustee, member, employee, or agent ("Affiliate Indemnitee") of another foreign
or domestic corporation or non-profit corporation, cooperative, partnership,
joint venture, limited liability company, trust or other incorporated or
unincorporated enterprise (each, a "Company Affiliate").
-1-
(b) Without limiting the generality of the foregoing, the Indemnitee
shall be entitled to the rights of indemnification provided in this Section 1
for any expenses actually incurred in any Proceeding initiated by or in the
right of the Corporation, unless indemnification is barred by A.R.S. xx.xx.
10-851.D or 10-856.A, or any other applicable law.
(c) In providing the foregoing indemnification, the Corporation shall,
with respect to any proceeding, hold harmless and indemnify the Indemnitee to
the fullest extent not prohibited by the law of the State of Arizona, as in
effect from time and time, and the Articles of Incorporation. For purposes of
this Agreement, it is intended that the indemnification afforded hereby be
mandatory and the broadest possible under any then existing statutory provision
expressly authorizing the Corporation to indemnify directors or officers whether
in effect on the date of this Agreement or hereafter, provided, however, that
the indemnification provisions of this Agreement shall apply without regard to
whether any provision set forth in the Articles or Bylaws of the Corporation
authorizing or permitting indemnification shall be in force or effect.
2. OTHER INDEMNIFICATION AGREEMENTS. The Corporation may purchase and
maintain insurance or furnish similar protection or make other arrangements,
including, but not limited to, providing a trust fund, letter of credit, or
surety bond ("Indemnification Arrangements") on behalf of the Indemnitee against
any liability asserted against him or her or incurred by or on behalf of him or
her in such capacity as a director or officer of the Corporation or an
Affiliated Indemnitee, or arising out of his or her status as such, whether or
not the Corporation would have the power to indemnify him or her against such
liability under the provisions of this Agreement. The purchase, establishment,
and maintenance of any such Indemnification Arrangement shall not in any way
limit or affect the rights and obligations of the Corporation or of the
Indemnitee under this Agreement except as expressly provided herein, and the
execution and delivery of this Agreement by the Corporation and the Indemnitee
shall not in any way limit or affect the rights and obligations of the
Corporation or the other party or parties thereto under any such Indemnification
Arrangement. All amounts payable by the Corporation pursuant to this Section 2
and Section 1 hereof are herein referred to as "Indemnified Amounts." To the
extent the Corporation is able to obtain directors and officers liability
insurance of a reasonable premium (as determined by the Corporation in its sole
discretion), the Corporation shall use reasonable efforts to cause the
Indemnitee to be covered by such insurance.
3. ADVANCE PAYMENT OF INDEMNIFIED AMOUNTS.
(a) The Indemnitee hereby is granted the right to receive in advance
of a final, nonappealable judgment or other final adjudication of a Proceeding
(a "Final Determination") the amount of any and all expenses, including, without
limitation, investigation expenses, court costs, expert witnesses' and
attorneys' fees and other expenses expended or incurred by the Indemnitee in
connection with any Proceeding or otherwise expensed or incurred by the
Indemnitee (such amounts so expended or incurred being hereinafter referred to
as "Advanced Amounts").
-2-
(b) In making any written request for Advanced Amounts, the Indemnitee
shall submit to the Corporation a schedule setting forth in reasonable detail
the dollar amount expended or incurred and expected to be expended. Each such
listing shall be supported by the xxxx, agreement, or other documentation
relating thereto, each of which shall be appended to the schedule as an exhibit.
In addition, before the Indemnitee may receive Advanced Amounts from the
Corporation, the Indemnitee shall provide to the Corporation (i) a written
affirmation of the Indemnitee's good faith belief that the applicable standard
of conduct required for indemnification by the Corporation has been satisfied by
the Indemnitee, and (ii) a written undertaking by or on behalf of the Indemnitee
to repay the Advanced Amount if it shall ultimately be determined that the
Indemnitee has not satisfied any applicable standard of conduct. The written
undertaking required from the Indemnitee shall be an unlimited general
obligation of the Indemnitee but need not be secured. The Corporation shall pay
to the Indemnitee all Advanced Amounts within twenty (20) days after receipt by
the Corporation of all information and documentation required to be provided by
the Indemnitee pursuant to this paragraph.
4. PROCEDURE FOR PAYMENT OF INDEMNIFIED AMOUNTS.
(a) To obtain indemnification under this Agreement, the Indemnitee
shall submit to the Corporation a written request for payment of the appropriate
Indemnified Amounts, including with such requests such documentation and
information as is reasonably available to the Indemnitee and reasonably
necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification. The Secretary of the Corporation shall, promptly upon receipt
of such a request for indemnification, advise the Board of Directors in writing
that the Indemnitee has requested indemnification.
(b) The Corporation shall pay the Indemnitee the appropriate
Indemnified Amounts unless it is established that the Indemnitee engaged in one
of the Prohibited Acts, and such Prohibited Act was the subject matter of the
Proceeding. For purposes of determining whether the Indemnitee is entitled to
Indemnified Amounts, in order to deny indemnification to the Indemnitee, the
Corporation has the burden of proof in establishing (1) that the Indemnitee
engaged in the Prohibited Act, and (2) that the Prohibited Act was the subject
matter of the Proceeding. In this regard, a termination of any Proceeding by
judgment, order or settlement does not create a presumption that the Indemnitee
did not meet the requisite standard of conduct; provided, however, that the
termination of any criminal proceeding by conviction, or a pleading of nolo
contendere or its equivalent, or an entry of an order of probation prior to
judgment, creates a rebuttable presumption that the Indemnitee engaged in a
Prohibited Act. For purposes of this Agreement, a Prohibited Act shall mean any
act, omission or condition (i) described in A.R.S. ss. 10-851.D or 10-856.A for
which the Corporation may not indemnify the Indemnitee or (ii) any act, omission
or condition for which indemnity is not available under any federal or state law
or public policy.
(c) Any determination that the Indemnitee has engaged in a Prohibited
Act shall be made (i) either by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such Proceeding; or (ii)
by independent legal counsel (who may be the outside counsel regularly employed
-3-
by the Corporation); provided that the manner in which (and, if applicable, the
counsel by which) the right of indemnification is to be determined shall be
approved in advance in writing by both the highest ranking executive officer of
the Corporation who is not a party to such action (sometimes hereinafter
referred to as "Senior Officer") and by the Indemnitee. In the event that such
parties are unable to agree on the manner in which any such determination is to
be made, such determination shall be made by independent legal counsel retained
by the Corporation especially for such purpose, provided that such counsel be
approved in advance in writing by both the Senior Officer and the Indemnitee
and, provided further, that such counsel shall not be outside counsel regularly
employed by the Corporation. The fees and expenses of counsel in connection with
making the determination contemplated hereunder shall be paid by the
Corporation, and, if requested by such counsel, the Corporation shall give such
counsel an appropriate written agreement with respect to the payment of their
fees and expenses and such other matters as may be reasonably requested by
counsel.
(d) The Corporation will use its best efforts to conclude as soon as
practicable any required determination pursuant to subparagraph (c) above and
promptly will advise the Indemnitee in writing with respect to any determination
that the Indemnitee is or is not entitled to indemnification, including a
description of any reason or basis for which indemnification has been denied.
Payment of any applicable Indemnified Amounts will be made to the Indemnitee
within ten (10) days after any determination of the Indemnitee's entitlement to
indemnification.
(e) Notwithstanding the foregoing, the Indemnitee may, at any time
after sixty (60) days after a claim for Indemnified Amounts has been filed with
the Corporation (or upon receipt of written notice that a claim for Indemnified
Amounts has been rejected, if earlier) and before three (3) years after a claim
for Indemnified Amounts has been filed, petition a court of competent
jurisdiction to determine whether the Indemnitee is entitled to indemnification
under the provisions of this Agreement, and such court shall thereupon have the
exclusive authority to make such determination unless and until such court
dismisses or otherwise terminates such action without having made such
determination. The court shall, as petitioned, make an independent determination
of whether the Indemnitee is entitled to indemnification as provided under this
Agreement, irrespective of any prior determination made by the Board of
Directors or independent counsel. If the court shall determine that the
Indemnitee is entitled to indemnification as to any claim, issue or matter
involved in the Proceeding with respect to which there has been no prior
determination pursuant to this Agreement or with respect to which there has been
a prior determination that the Indemnitee was not entitled to indemnification
hereunder, the Corporation shall pay all expenses (including attorneys' fees and
court costs) actually incurred by the Indemnitee in connection with such
judicial determination.
-4-
5. AGREEMENT NOT EXCLUSIVE; SUBROGATION RIGHTS, ETC.
(a) This Agreement shall not be deemed exclusive of and shall not
diminish any other rights the Indemnitee may have to be indemnified or insured
or otherwise protected against any liability, loss, or expense by the
Corporation, any subsidiary of the Corporation, or any other person or entity
under any charter, bylaws, law, agreement, policy of insurance or similar
protection, vote of stockholders or directors, disinterested or not, or
otherwise, whether or not now in effect, both as to actions in the Indemnitee's
official capacity, and as to actions in another capacity while holding such
office. The Corporation's obligations to make payments of Indemnified Amounts
hereunder shall be satisfied to the extent that payments with respect to the
same Proceeding (or part thereof) have been made to or for the benefit of the
Indemnitee by reason of the indemnification of the Indemnitee pursuant to any
other arrangement made by the Corporation for the benefit of the Indemnitee.
(b) In the event the Indemnitee shall receive payment from any
insurance carrier or from the plaintiff in any Proceeding against such
Indemnitee in respect of Indemnified Amounts after payments on account of all or
part of such Indemnified Amounts have been made by the Corporation pursuant
hereto, such Indemnitee shall promptly reimburse to the Corporation the amount,
if any, by which the sum of such payment by such insurance carrier or such
plaintiff and payments by the Corporation or pursuant to arrangements made by
the Corporation to Indemnitee exceeds such Indemnified Amounts; provided,
however, that such portions, if any, of such insurance proceeds that are
required to be reimbursed to the insurance carrier under the terms of its
insurance policy, such as deductible or co-insurance payments, shall not be
deemed to be payments to the Indemnitee hereunder. In addition, upon payment of
Indemnified Amounts hereunder, the Corporation shall be subrogated to the rights
of Indemnitee receiving such payments (to the extent thereof) against any
insurance carrier (to the extent permitted under such insurance policies) or
plaintiff in respect to such Indemnified Amounts and the Indemnitee shall
execute and deliver any and all instruments and documents and perform any and
all other acts or deeds which the Corporation deems necessary or advisable to
secure such rights. Such right of subrogation shall be terminated upon receipt
by the Corporation of the amount to be reimbursed by the Indemnitee pursuant to
the first sentence of this paragraph.
6. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Corporation contained herein shall continue during the period Indemnitee is a
director of the Corporation (or is serving at the request of the Corporation as
an Affiliate Indemnitee) and shall continue thereafter so long as Indemnitee
shall be subject to any possible Proceeding by reason of the fact that
Indemnitee was a director, officer or employee of the Corporation or was serving
in any other capacity referred to herein.
7. SUCCESSORS; BINDING AGREEMENT. This Agreement shall be binding on and
shall inure to the benefit of and be enforceable by the Corporation's successors
and assigns and by the Indemnitee's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. The Corporation shall require any successor or assignee (whether
direct or indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business and/or assets of the Corporation, by written
agreement in form and substance reasonably satisfactory to the Corporation and
-5-
to the Indemnitee, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent that the Corporation would be required to
perform if no such succession or assignment had taken place.
8. ENFORCEMENT. The Corporation has entered into this Agreement and assumed
the obligations imposed on the Corporation hereby in order to induce the
Indemnitee to act as a director of the Corporation, and acknowledges that the
Indemnitee is relying upon this Agreement in continuing in such capacity. In the
event the Indemnitee is required to bring any action to enforce rights or to
collect monies due under this Agreement and is successful in such action, the
Corporation shall reimburse Indemnitee for all of the Indemnitee's fees and
expenses in bringing and pursuing such action. The Indemnitee shall be entitled
to the advancement of Indemnified Amounts to the full extent contemplated by
Section 3 hereof in connection with such Proceeding.
9. SEPARABILITY. Each of the provisions of this Agreement is a separate and
distinct agreement independent of the others, so that if any provision hereof
shall be held to be invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof, which other provisions shall remain in full force and effect.
10. MISCELLANEOUS. No provision of this Agreement may be modified, waived,
or discharged unless such modification, waiver, or discharge is agreed to in
writing signed by Indemnitee and either the Chairman of the Board or the
President of the Corporation or another officer of the Corporation specifically
designated by the Board of Directors. No waiver by either party at any time of
any breach by the other party of, or of compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same time or
at any prior or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement.
The validity, interpretation, construction, and performance of this Agreement
shall be governed by the laws of the State of Arizona, without giving effect to
the principles of conflicts of laws thereof. The Indemnitee may bring an action
seeking resolution of disputes or controversies arising under or in any way
related to this Agreement in the state or federal court jurisdiction in which
Indemnitee resides or in which his or her place of business is located, and in
any related appellate courts, and the Corporation consents to the jurisdiction
of such courts and to such venue.
11. NOTICES. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
-6-
If to Indemnitee: Xxxx Xxxxxx
Knight Transportation, Inc.
0000 X. Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
If to Corporation: Knight Transportation, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Secretary
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
12. COUNTERPART. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
13. EFFECTIVENESS. This Agreement shall be effective as of May 9, 2001.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the day and year first above written.
KNIGHT TRANSPORTATION, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
Its Chief Executive Officer
INDEMNITEE:
/s/ Xxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx
-7-
