1
EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made as of this 1st day
of December, 1999, by and between ZLand, Inc., a Delaware corporation
("Company"), and __________ ("Indemnitee").
RECITALS
A. The Indemnitee has been requested to serve as the _________________
of the Company and in such capacity render valuable services to the Company.
B. The Company has investigated whether additional protective measures
are warranted to adequately protect its directors and officers against various
legal risks and potential liabilities to which such individuals are subject due
to their position with the Company and has concluded that additional protective
measures are warranted.
C. In order to induce and encourage highly experienced and capable
persons such as the Indemnitee to continue to serve in important capacities, the
Board of Directors of the Company has determined, after due consideration, that
this Agreement is not only reasonable and prudent, but necessary to promote and
ensure the best interests of the Company and its stockholders.
D. The Company's execution of this Agreement has been approved by the
Board of Directors of the Company.
E. The Indemnitee has indicated to the Company that but for the
Company's agreement to enter into this Agreement, the Indemnitee would decline
to serve as the ______________________ of the Company.
NOW, THEREFORE, as an inducement to the Indemnitee to serve as the (Job
Title) of the Company, the Company and the Indemnitee does hereby agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings set forth below:
(1) "PROCEEDING" shall mean any threatened, pending or completed
action, suit or proceeding, whether brought in the name of the Company or
otherwise and whether of a civil, criminal, administrative or investigative
nature, by reason of the fact that Indemnitee is or was an officer and/or a
director of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another enterprise, whether or not he is
serving in such capacity at the time any liability or Expense is incurred for
which indemnification or advancement of Expenses (as defined in subparagraph (b)
below) is to be provided under this Agreement.
2
(2) "EXPENSES" means, all costs, charges and expenses incurred in
connection with a Proceeding, including, without limitation, attorneys' fees,
disbursements and retainers, accounting and witness fees, travel and deposition
costs, expenses of investigations, judicial or administrative proceedings or
appeals, and any expenses of establishing a right to indemnification pursuant to
this Agreement or otherwise, including reasonable compensation for time spent by
the Indemnitee in connection with the investigation, defense or appeal of a
Proceeding or action for indemnification for which he is not otherwise
compensated by the Company or any third party.
2. AGREEMENT TO SERVE. The Indemnitee agrees to serve as
________________ of the Company at the will of the Company for so long as the
Indemnitee is duly elected or appointed or until such time as the Indemnitee
tenders a resignation in writing or is terminated as an officer or director by
the Company. Nothing in this Agreement shall be construed to create any right in
the Indemnitee to continued service with the Company or any subsidiary or
affiliate of the Company.
3. INDEMNIFICATION IN THIRD PARTY ACTIONS. The Company shall indemnify
the Indemnitee in accordance with the provisions of this Section 3 if the
Indemnitee is a party to or threatened to be made a party to or is otherwise
involved in any Proceeding (other than a Proceeding by or in the right of the
Company to procure a judgment in its favor), by reason of the fact that either
Indemnitee is or was an officer and/or a director of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another enterprise, against all Expenses, damages, judgments, amounts paid in
settlement, fines, penalties and ERISA excise taxes actually and reasonably
incurred by the Indemnitee in connection with the defense or settlement of such
Proceeding, to the fullest extent permitted by Delaware law, whether or not the
Indemnitee was the successful party in any such Proceeding; provided that any
settlement shall be approved in writing by the Company.
4. INDEMNIFICATION IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY.
The Company shall indemnify the Indemnitee in accordance with the provisions of
this Section 4 if the Indemnitee is a party to or threatened to be made a party
to or is otherwise involved in any Proceeding by or in the right of the Company
to procure a judgment in its favor by reason of the fact that the Indemnitee is
or was an officer and/or a director of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of another
enterprise, against all Expenses actually and reasonably incurred by the
Indemnitee in connection with the defense or settlement of such Proceeding, to
the fullest extent permitted by Delaware law, whether or not the Indemnitee is
the successful party in any such Proceeding. The Company shall further indemnify
the Indemnitee for any damages, judgments, amounts paid in settlement, fines,
penalties and ERISA excise taxes actually and reasonably incurred by the
Indemnitee in any such Proceeding described in the immediately preceding
sentence, provided either (i) the Proceeding is settled with the approval of a
court of competent jurisdiction, or (ii) indemnification of such amounts is
otherwise ordered by a court of competent jurisdiction in connection with such
Proceeding.
2
3
5. CONCLUSIVE PRESUMPTION REGARDING STANDARD OF CONDUCT. The Indemnitee
shall be conclusively presumed to have met the relevant standards of conduct
required by Delaware law for indemnification pursuant to this Agreement, unless
a determination is made that the Indemnitee has not met such standards (i) by
the Board of Directors of the Company by a majority vote of a quorum thereof
consisting of directors who were not parties to such Proceeding, (ii) by the
stockholders of the Company by majority vote, or (iii) in a written opinion of
the Company's independent legal counsel. Further, the termination of any
Proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, rebut such presumption that
the Indemnitee met the relevant standards of conduct required for
indemnification pursuant to this Agreement.
6. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding or in defense
of any claim, issue or matter therein, the Indemnitee shall be indemnified
against all Expenses incurred in connection therewith to the fullest extent
permitted by Delaware law. For purposes of this paragraph, the Indemnitee will
be deemed to have been successful on the merits if the Proceeding is terminated
by settlement or is dismissed with prejudice.
7. ADVANCES OF EXPENSES. The Expenses incurred by the Indemnitee in
connection with any Proceeding shall be paid promptly by the Company in advance
of the final disposition of the Proceeding at the written request of the
Indemnitee to the fullest extent permitted by Delaware law.
8. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, damages, judgments, amounts paid in settlement, fines,
penalties or ERISA excise taxes actually and reasonably incurred by the
Indemnitee in the investigation, defense, appeal or settlement of any Proceeding
but not, however, for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Expenses, damages, judgments,
amounts paid in settlement, fines, penalties or ERISA excise taxes to which the
Indemnitee is entitled.
9. INDEMNIFICATION PROCEDURE; DETERMINATION OF RIGHT TO
INDEMNIFICATION.
(1) Promptly after receipt by the Indemnitee of notice of the
commencement of any Proceeding with respect to which the Indemnitee intends to
claim indemnification or advancement of Expenses pursuant to this Agreement, the
Indemnitee will notify the Company of the commencement thereof. The omission to
so notify the Company will not relieve the Company from any liability which it
may have to the Indemnitee under this Agreement or otherwise.
(2) If a claim for indemnification or advancement of Expenses under
this Agreement is not paid by or on behalf of the Company within 30 days of
receipt of written notice thereof, the Indemnitee may at any time thereafter
bring suit in any court of competent jurisdiction
3
4
against the Company to enforce the right to indemnification or advancement of
Expenses provided by this Agreement. It shall be a defense to any such action
(other than an action brought to enforce a claim for Expenses incurred in
defending any Proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Company) that the
Indemnitee has failed to meet the standard of conduct that makes it permissible
under Delaware law for the Company to indemnify the Indemnitee for the amount
claimed. The burden of proving by clear and convincing evidence that
indemnification or advancement of Expenses is not appropriate shall be on the
Company. The failure of the directors or stockholders of the Company or
independent legal counsel to have made a determination prior to the commencement
of such Proceeding that indemnification or advancement of Expenses are proper in
the circumstances because the Indemnitee has met the applicable standard of
conduct shall not be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct.
(3) The Indemnitee's Expenses incurred in connection with any action
concerning the Indemnitee's right to indemnification or advancement of Expenses
in whole or in part pursuant to this Agreement shall also be indemnified in
accordance with the terms of this Agreement by the Company regardless of the
outcome of such action, unless a court of competent jurisdiction determines that
each of the material claims made by the Indemnitee in such action was not made
in good faith or was frivolous.
(4) With respect to any Proceeding for which indemnification is
requested by the Indemnitee, the Company will be entitled to participate therein
at its own expense and, except as otherwise provided below, to the extent that
it may wish, the Company may assume the defense thereof, with counsel
satisfactory to the Indemnitee. After notice from the Company to the Indemnitee
of its election to assume the defense of a Proceeding, the Company will not be
liable to the Indemnitee under this Agreement for any Expenses subsequently
incurred by the Indemnitee in connection with the defense thereof, other than
reasonable costs of investigation or as otherwise provided below. The Company
shall not settle any Proceeding in any manner which would impose any penalty or
limitation on the Indemnitee without the Indemnitee's prior written consent. The
Indemnitee shall have the right to employ counsel in any such Proceeding, but
the Expenses of such counsel incurred after notice from the Company of its
assumption of the defense thereof and the Indemnitee's approval of the Company's
counsel shall be at the expense of the Indemnitee, unless (i) the employment of
counsel by the Indemnitee has been authorized by the Company, (ii) the
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee in the conduct of the defense of
a Proceeding, or (iii) the Company shall not in fact have employed counsel to
assume the defense of a Proceeding, in each of which cases the Expenses of the
Indemnitee's counsel shall be at the expense of the Company. Notwithstanding the
foregoing, the Company shall not be entitled to assume the defense of any
Proceeding brought by or on behalf of the Company or as to which the Indemnitee
has concluded that there may be a conflict of interest between the Company and
the Indemnitee.
10. RETROACTIVE EFFECT. Notwithstanding anything to the contrary
contained in this Agreement, the Company's obligation to indemnify the
Indemnitee and advance Expenses to the
4
5
Indemnitee shall be deemed to be in effect since the date that the Indemnitee
first commenced serving in any of the capacities covered by this Agreement.
11. LIMITATIONS ON INDEMNIFICATION. No payments pursuant to this
Agreement shall be made by the Company:
(1) to indemnify or advance Expenses to the Indemnitee with respect
to actions initiated or brought voluntarily by the Indemnitee and not by way of
defense, except with respect to actions brought to establish or enforce a right
to indemnification or advancement of Expenses under this Agreement or any other
statute or law or otherwise as required under Delaware law, but such
indemnification or advancement of Expenses may be provided by the Company in
specific cases if approved by the Board of Directors by a majority vote of a
quorum thereof consisting of directors who are not parties to such action;
(2) to indemnify the Indemnitee for any Expenses, damages,
judgments, amounts paid in settlement, fines, penalties or ERISA excise taxes
for which payment is actually made to the Indemnitee under a valid and
collectible insurance policy, except in respect of any excess beyond the amount
paid under such insurance;
(3) to indemnify the Indemnitee for any Expenses, damages,
judgments, amounts paid in settlement, fines, penalties or ERISA excise taxes
for which the Indemnitee has been or is in fact indemnified by the Company or
any other party otherwise than pursuant to this Agreement;
(4) to indemnify the Indemnitee for any Expenses, damages,
judgments, fines or penalties sustained in any Proceeding for an accounting of
profits made from the purchase or sale by the Indemnitee of securities of the
Company pursuant to the provisions of Section 16(b) of the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder or
similar provisions of any federal, state or local statutory law; or
(5) if a court of competent jurisdiction shall enter a final order,
decree or judgment to the effect that such indemnification or advancement of
Expenses hereunder is unlawful under the circumstances.
12. MAINTENANCE OF D&O INSURANCE.
(1) The Company hereby agrees to maintain in full force and effect,
at its sole cost and expense, directors' and officers' liability insurance ("D&O
Insurance") by an insurer, in an amount and with a deductible reasonably
acceptable to the Indemnitee, covering the period during which the Indemnitee is
serving in any one or more of the capacities covered by this Agreement and for
so long thereafter as the Indemnitee is subject to any possible claim or
threatened, pending or completed Proceeding by reason of the fact that the
Indemnitee is serving in any of the capacities covered by this Agreement.
5
6
(2) In all policies of D&O Insurance to be maintained pursuant to
Paragraph 12(a) above, the Indemnitee shall be named as insureds in such a
manner as to provide the Indemnitee with the greatest rights and benefits
available under such policy.
13. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. The indemnification and
advancement of Expenses provided by this Agreement shall not be deemed to limit
or preclude any other rights to which the Indemnitee may be entitled under the
Company's Certificate of Incorporation, the Company's Bylaws, any agreement, any
vote of stockholders or disinterested directors of the Company, Delaware law, or
otherwise.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
shall inure to the benefit of (i) the Indemnitee and his heirs, devisees,
legatees, personal representatives, executors, administrators and assigns and
(ii) the Company and its successors and assigns, including any transferee of all
or substantially all of the Company's assets and any successor or assign of the
Company by merger or by operation of law.
15. SEVERABILITY. Each provision of this Agreement is a separate and
distinct agreement and independent of the other, 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 enforceable of the other
provisions hereof. To the extent required, any provision of this Agreement may
be modified by a court of competent jurisdiction to preserve its validity and to
provide the Indemnitee with the broadest possible indemnification and
advancement of Expenses permitted under Delaware law. If this Agreement or any
portion thereof is invalidated on any ground by any court of competent
jurisdiction, then the Company shall nevertheless indemnify Indemnitee as to
Expenses, damages, judgments, amounts paid in settlement, fines, penalties and
ERISA excise taxes with respect to any Proceeding to the full extent permitted
by any applicable portion of this Agreement that shall not have been invalidated
or by any applicable provision of Delaware law or the law of any other
applicable jurisdiction.
16. HEADINGS. The headings used herein are for convenience only and
shall not be used in construing or interpreting any provision of the Agreement.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
18. AMENDMENTS AND WAIVERS. No amendment, waiver, modification,
termination or cancellation of this Agreement shall be effective unless in
writing and signed by the party against whom enforcement is sought. The
indemnification rights afforded to the Indemnitee hereby are contract rights and
may not be diminished, eliminated or otherwise affected by amendments to the
Company's Certificate of Incorporation, Bylaws or agreements, including any
directors' and officers' liability insurance policies, whether the alleged
actions or conduct giving rise to indemnification hereunder arose before or
after any such amendment. No waiver of any provision of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof, whether or
not similar, nor shall any waiver constitute a continuing waiver.
6
7
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other.
20. NOTICES. All notices and communications shall be in writing and
shall be deemed duly given on the date of delivery if personally delivered or
the date of receipt of refusal indicated on the return receipt if sent by first
class mail, postage prepaid, registered or certified, return receipt requested,
to the following addresses, unless notice of a change of address is duly given
by one party to the other, in which case notices shall be sent to such changed
address:
If to the Company:
ZLand, Inc.
00000 Xxxxx Xxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chairman
If to Indemnitee:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
21. SUBROGATION. In the event of any payment under this Agreement to or
on behalf of the Indemnitee, the Company shall be subrogated to the extent of
such payment to all of the rights of recovery of the Indemnitee against any
person, firm, corporation or other entity (other than the Company) and the
Indemnitee shall execute all papers requested by the Company and shall do any
and all things that may be necessary or desirable to secure such rights for the
Company, including the execution of such documents necessary or desirable to
enable the Company to effectively bring suit to enforce such rights.
22. SUBJECT MATTER AND PARTIES. The intended purpose of this Agreement
is to provide for indemnification and advancement of Expenses, and this
Agreement is not intended to affect any other aspect of any relationship between
or among the Indemnitee and the Company and is not intended to and shall not
create any rights in any person as a third party beneficiary hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"Indemnitee"
----------------------------------------
7
8
"Company" ZLand, Inc., a Delaware corporation
By:
------------------------------------
Xxxx X. Xxxxxxxx, Chairman and CEO
8
