EXHIBIT 10.9
OFFICER INDEMNITY AGREEMENT
THIS AGREEMENT is made as of _______________2003, by and between
Xxxxxxxxxxx Industries, Inc., an Indiana corporation (the "Corporation"), and
_________________ (the "Officer") residing at ______________________________.
WHEREAS, the Corporation is aware that competent and experienced
persons are increasingly reluctant to serve as officers of corporations unless
they are protected by officer liability insurance and/or indemnification, due to
the increasing amount of litigation against officers and the increasing expense
of defending such claims; and
WHEREAS, it is essential to the Corporation to retain and attract as
officers the most capable and qualified persons available; and
WHEREAS, the Corporation's articles of incorporation and the Indiana
Business Corporation Law, by their nonexclusive nature, permit contracts between
the Corporation and its officers with respect to indemnification of officers.
NOW, THEREFORE, the Corporation and the Officer agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) "expenses" includes all direct and indirect costs of any type
or nature whatsoever (including, without limitation, all attorneys' fees and
related disbursements and other out-of-pocket costs) actually and reasonably
incurred by the Officer in connection with the investigation, defense,
settlement or appeal of a proceeding or establishing or enforcing a right to
indemnification or advancement of expenses under this Agreement; provided,
however, that expenses shall not include any judgments, fines, ERISA excise
taxes or penalties or amounts paid in settlement of a proceeding.
(b) "proceeding" includes, without limitation, any threatened,
pending, or completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing or any other proceeding,
whether civil, criminal, administrative, or investigative and whether formal or
informal, whether by a third party or by or in the right of the Corporation, by
reason of the fact that the Officer is or was an officer of the Corporation or,
while an officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, member, manager, trustee, employee,
fiduciary, or agent of another foreign or domestic corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan, or other
enterprise, or an affiliate of the Corporation, whether for profit or not.
2. INDEMNITY. The Corporation shall indemnify the Officer in
accordance with the provisions of this Section 2 if the Officer is a party to or
threatened to be made a party to any proceeding against all expenses, judgments,
fines (including any excise tax or penalty assessed
with respect to any employee benefit plan) and amounts paid in settlement
actually and reasonably incurred by the Officer in connection with such
proceeding, but only (a) if the Officer acted in good faith, and (b) (i) in the
case of conduct in the Officer's official capacity with the Corporation, if the
Officer acted in a manner which the Officer reasonably believed to be in the
best interests of the Corporation, or (ii) in the case of conduct other than in
the Officer's official capacity with the Corporation, if the Officer acted in a
manner which the Officer reasonably believed was at least not opposed to the
best interests of the Corporation, and (c) in the case of a criminal proceeding,
the Officer had reasonable cause to believe that the Officer's conduct was
lawful or had no reasonable cause to believe that the Officer's conduct was
unlawful, and (d) if required by the Indiana Business Corporation Law, as
amended or as may be amended, revised or superseded (the "Act"), the Corporation
makes a determination that indemnification of the Officer is permissible because
the Officer has met the standard of conduct as set forth in the Act.
3. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding any other provisions of this Agreement, to the extent that the
Officer has been wholly successful, on the merits or otherwise, in the defense
of any proceeding or in defense of any claim, issue or matter therein, including
the dismissal of an action without prejudice, the Corporation shall indemnify
the Officer against all expenses incurred in connection therewith.
4. ADDITIONAL INDEMNIFICATION. Notwithstanding any limitation in
Sections 2 or 3, the Corporation shall indemnify the Officer to the full extent
authorized or permitted by any amendments to or replacements of the Act adopted
after the date of this Agreement that increase the extent to which a corporation
may indemnify its officers if the Officer is a party to or threatened to be made
a party to any proceeding against all expenses, judgments, fines (including any
excise tax or penalty assessed with respect to any employee benefit plan) and
amounts paid in settlement actually and reasonably incurred by the Officer in
connection with such proceeding.
5. EXCLUSIONS. Notwithstanding any provision in this Agreement,
the Corporation shall not be obligated under this Agreement to make any
indemnity or advance expenses in connection with any claim made against the
Officer:
(a) for which payment has actually been made to or on behalf of
the Officer under any insurance policy or other indemnity provision, except with
respect to any excess beyond the amount paid under such insurance or other
indemnity provision;
(b) for any transaction from which the Officer derived an improper
personal benefit;
(c) for recovery of profits resulting from the purchase and sale
or sale and purchase by the Officer of securities of the Corporation in
violation of Section 16(b) of the Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any federal, state or local statutory law or
common law;
(d) if a court having jurisdiction in the matter shall finally
determine that such indemnification is not lawful under any applicable statute
or public policy (in this respect, if applicable, both the Corporation and the
Officer have been advised that the Securities and Exchange Commission takes the
position that indemnification for liabilities arising under the
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federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication); or
(e) in connection with any proceeding (or part thereof) initiated
by the Officer against the Corporation or its directors, officers or employees,
unless (i) such indemnification is expressly required to be made by law, (ii)
the proceeding was authorized by the Board of Directors of the Corporation,
(iii) such indemnification is provided by the Corporation, in its sole
discretion, pursuant to the powers vested in the Corporation under applicable
law, or (iv) the proceeding is initiated pursuant to Section 8 hereof and the
Officer is successful in whole or in part in such proceeding.
6. ADVANCEMENT OF EXPENSES. The expenses incurred by the Officer
in any proceeding shall be paid promptly by the Corporation upon demand and in
advance of final disposition of the proceeding at the written request of the
Officer, if (a) the Officer furnishes the Corporation with a written affirmation
of the Officer's good faith belief that the Officer has met the standard of
conduct required by the Act or this Agreement, (b) the Officer furnishes the
Corporation with a written undertaking to repay such advance to the extent that
it is ultimately determined that the Officer did not meet the standard of
conduct that would entitle the Officer to indemnification, and (c) if required
by the Act, the Corporation makes a determination that the facts known to those
making the determination would not preclude indemnification under the Act. Such
advances shall be made without regard to the Officer's ability to repay such
expenses.
7. NOTIFICATION AND DEFENSE OF CLAIM. As soon as practicable
after receipt by the Officer of notice of the commencement of any proceeding,
the Officer will, if a claim in respect thereof is to be made against the
Corporation under this Agreement, notify the Corporation of the commencement
thereof; provided, however, that the omission so to notify the Corporation will
not relieve the Corporation from any liability which it may have to the Officer
otherwise than under this Agreement. With respect to any such proceeding as to
which the Officer notifies the Corporation of the commencement thereof:
(a) The Corporation will be entitled to participate therein at its
own expense.
(b) Except as otherwise provided below, the Corporation may, at
its option and jointly with any other indemnifying party similarly notified and
electing to assume such defense, assume the defense thereof, with legal counsel
reasonably satisfactory to the Officer. The Officer shall have the right to
employ separate counsel in such proceeding, but the Corporation shall not be
liable to the Officer under this Agreement, including Section 6 hereof, for the
fees and expenses of such counsel incurred after notice from the Corporation of
its assumption of the defense, unless (i) the Officer reasonably concludes that
there may be a conflict of interest between the Corporation and the Officer in
the conduct of the defense of such proceeding or (ii) the Corporation does not
employ counsel to assume the defense of such proceeding. The Corporation shall
not be entitled to assume the defense of any proceeding brought by the
Corporation or as to which the Officer shall have made the conclusion provided
for in (i) above.
(c) If two or more persons who may be entitled to indemnification
from the Corporation, including the Officer, are parties to any proceeding, the
Corporation may require the Officer to engage the same legal counsel as the
other parties. The Officer shall have the right
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to employ separate legal counsel in such proceeding, but the Corporation shall
not be liable to the Officer under this Agreement, including Section 6 hereof,
for the fees and expenses of such counsel incurred after notice from the
Corporation of the requirement to engage the same counsel as other parties,
unless the Officer reasonably concludes that there may be a conflict of interest
between the Officer and any of the other parties required by the Corporation to
be represented by the same legal counsel.
(d) The Corporation shall not be liable to indemnify the Officer
under this Agreement for any amounts paid in settlement of any proceeding
effected without its written consent in advance which consent shall not be
unreasonably withheld. The Corporation shall be permitted to settle any
proceeding the defense of which it assumes, except the Corporation shall not
settle any action or claim in any manner which would impose any penalty or
limitation on the Officer without the Officer's written consent, which consent
shall not be unreasonably withheld.
8. ENFORCEMENT. Any right to indemnification or advances granted
by this Agreement to the Officer shall be enforceable by or on behalf of the
Officer in any court of competent jurisdiction if (i) the claim for
indemnification or advances is denied, in whole or in part, or (ii) no
disposition of such claim is made within 90 days of a written request therefor.
The Officer, in such enforcement action, if successful in whole or in part,
shall be entitled to be paid also the expense of prosecuting the claim. Neither
the failure of the Corporation (including its Board of Directors or its
shareholders) to make a determination prior to the commencement of such
enforcement action that indemnification of the Officer is proper in the
circumstances, nor an actual determination by the Corporation (including its
Board of Directors or its shareholders) that such indemnification is improper,
shall be a defense to the action or create a presumption that the Officer is not
entitled to indemnification under this Agreement or otherwise. The termination
of any proceeding by judgment, order of court, settlement, conviction or upon a
plea of nolo contendere, or its equivalent, shall not, of itself, create a
presumption that the Officer is not entitled to indemnification under this
Agreement or otherwise.
9. PARTIAL INDEMNIFICATION. If the Officer is entitled under any
provisions of this Agreement to indemnification by the Corporation for some or a
portion of the expenses, judgments, fines (including any excise tax or penalty
assessed with respect to any employee benefit plan) and amounts paid in
settlement actually and reasonably incurred by the Officer in the investigation,
defense, appeal or settlement of any proceeding but not, however, for the total
amount thereof, the Corporation shall indemnify the Officer for the portion of
such expenses, judgments, fines (including any excise tax or penalty assessed
with respect to any employee benefit plan) and amounts paid in settlement to
which the Officer is entitled.
10. TERM. The term of this Agreement shall begin on the date first
written above and shall terminate at such time as the Officer no longer serves
as an officer of the Corporation, subject to the survival of rights of
indemnification set forth in paragraph 11 below.
11. NONEXCLUSIVITY; SURVIVAL; SUCCESSORS AND ASSIGNS. The
indemnification and advance payment of expenses as provided by this Agreement
shall not be deemed exclusive of any other rights to which the Officer may be
entitled under the Corporation's articles of incorporation, the by-laws, any
other agreement, any vote of shareholders or directors, the Act, or otherwise,
both as to action in the Officer's official capacity and as to action in another
capacity while holding such office. The right of the Officer to indemnification
under this
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Agreement shall vest at the time of occurrence or performance of any event, act
or omission or any alleged event, act or omission giving rise to any action,
suit or proceeding and, once vested, shall survive any actual or purported
termination of this Agreement by the Corporation or its successors or assigns
whether by operation of law or otherwise and shall survive termination of the
Officer's services to the Corporation and shall inure to the benefit of the
heirs, personal representatives and estate of the Officer. This Agreement shall
be binding, and the Corporation shall take such action to ensure that it is
binding, upon all successors and assigns of the Corporation, including any
transferee of all or substantially all of its assets and any successor by
merger, consolidation, or operation of law.
12. SEVERABILITY. If this Agreement or any portion thereof is
invalidated on any ground by any court of competent jurisdiction, the
Corporation shall indemnify the Officer as to expenses, judgments, fines
(including any excise tax or penalty assessed with respect to any employee
benefit plan) and amounts paid in settlement with respect to any proceeding to
the full extent permitted by any applicable portion of this Agreement that is
not invalidated or by any other applicable law.
13. SUBROGATION. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Officer, who shall execute all documents required and
shall do all acts necessary or desirable to secure such rights and to enable the
Corporation effectively to bring suit to enforce such rights.
14. MODIFICATION AND WAIVER. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall constitute a waiver of any other provisions hereof (whether or nor
similar) nor shall such waiver constitute a continuing waiver.
15. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (i) if delivered by hand and receipted for by the party to whom such
notice or other communication shall have been directed, at the time of such
delivery, or (ii) if mailed by certified or registered mail, return receipt
requested, with postage prepaid, three (3) business days after deposit into the
United States mail if to an address in the United States, or if delivered by
recognized overnight courier three (3) business days after receipt by such
courier if to an address outside the United States:
(a) If to the Officer, at the address indicated above.
(b) If to the Corporation, to:
Xxxxxxxxxxx Industries, Inc.
000 Xxxxx Xxxxx 00 Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
or to such other address as may have been furnished to either party by the other
party.
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16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, which shall together constitute one agreement.
17. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana, without giving
effect to conflicts of laws principles requiring application of the substantive
laws of another jurisdiction.
18. SCOPE OF AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto for the purposes herein contained, and this
Agreement shall supercede any other agreements, understandings, representations,
or warranties, oral or written, relating to the subject matter of this
Agreement, which shall be deemed to exist or to bind any of the parties hereto
or their respective successors or assigns, except as expressly referred to
herein.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as of the date first written above.
XXXXXXXXXXX INDUSTRIES, INC. OFFICER
By: ___________________________________ _________________________________
Xxxxxxx xx Xxxxxxxxx
Vice President, General Counsel
and Secretary
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