INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT between The Xxxxx Corporation, a
Delaware corporation (the "Company"), and ________________, an
officer and/or director of the Company (the "Indemnitee"), dated as
of November __, 1996.
WHEREAS, the Indemnitee has served, is serving or may serve as
an officer or director of the Company; and
WHEREAS, the Amended and Restated Certificate of Incorporation
(the "Certificate of Incorporation") and the Bylaws of the Company
provide for certain indemnification of the officers and directors
of the Company.
NOW, THEREFORE, in consideration of the foregoing and of other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company has agreed to the
covenants set forth herein for the purpose of further securing to
the Indemnitee the indemnification provided by the Certificate of
Incorporation and the Bylaws:
Section 1. In the event that the Indemnitee was or is made a
party or is threatened to be made a party to or is involved in any
action, suit, or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that the Indemnitee or a person of whom the
Indemnitee is the legal representative is or was a director,
officer or employee of the Company or is or was serving at the
request of the Company as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee
benefit plans, whether the basis of such actual or threatened
proceeding is alleged action in any official capacity as a
director, officer, employee or agent or in any other capacity while
serving as a director, officer, employee or agent, the Indemnitee
shall be indemnified and held harmless by the Company to the
fullest extent authorized by the General Corporation Law of the
State of Delaware (the "GCL") as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to
provide prior to such amendment), against all expense, liability
and loss (including, without limitation, attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid
or to be paid in settlement) reasonably incurred or suffered by the
Indemnitee in connection therewith and such indemnification shall
continue as to the Indemnitee if the Indemnitee ceases to be a
director, officer, employee or agent and shall inure to the benefit
of the Indemnitee's heirs, executors
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and administrators; provided, however, that except as provided in
Section 2 of this Agreement with respect to proceedings seeking to
enforce rights to indemnification, the Company shall indemnify the
Indemnitee in connection with a proceeding (or part thereof)
initiated by the Indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Company.
Section 2. If a claim under Section 1 of this Agreement is
not paid in full by the Company within thirty days after a written
claim has been received by the Company, the Indemnitee may at any
time thereafter bring suit against the Company to recover the
unpaid amount of the claim and, if successful in whole or in part,
the Indemnitee shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses
incurred in defending any actual or threatened 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 not met the standards of conduct which make it
permissible under the GCL for the Company to indemnify the
Indemnitee for the amount claimed, but the burden of proving such
defense shall be on the Company. Neither the failure of the
Company (including its Board of Directors, independent legal
counsel or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the Indemnitee
is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in the GCL, nor an actual
determination by the Company (including its Board of Directors,
independent legal counsel or stockholders) that the Indemnitee has
not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the Indemnitee has not met
the applicable standard of conduct.
Section 3. Following any "change in control" of the Company
of the type required to be reported under Item 1 of Form 8-K
promulgated under the Securities Exchange Act of 1934, as amended,
any determination as to entitlement to indemnification shall be
made by independent legal counsel selected by the Indemnitee, which
such independent legal counsel shall be retained by the Board of
Directors on behalf of the Company.
Section 4. The right to indemnification and the payment of
expenses incurred in defending any actual or threatened proceeding
in advance of its final disposition conferred in this Agreement
shall not be exclusive of any other right which the Indemnitee may
have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 5. The Company shall maintain in full force and
effect for a period of at least six years following the date of
this Agreement, fiduciary liability and
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directors and officers liability insurance policies in an amount
not less than $10,000,000 (or, if such amount is not reasonably
available, such other lower amount as is available to the Company
on reasonable terms) covering the Company, any Company subsidiary
or any of such parties' current or former directors, officers,
employees or agents, which will include coverage of Indemnitee for
all actions previously taken or to be taken in connection with his
services to the Company and its subsidiaries. In the event that
the Company maintains insurance, whether pursuant to the foregoing
provision or otherwise, to protect itself and any director or
officer of the Company against any expenses, liability or loss,
such insurance shall cover the Indemnitee to at least the same
extent as any other director or officer of the Company.
Section 6. The right to indemnification conferred by this
Agreement shall include the right to be paid by the Company the
expenses incurred in defending any actual or threatened proceeding
in advance of its final disposition; provided, however, that if the
GCL requires, the payment of such expenses incurred by the
Indemnitee in the Indemnitee's capacity as a director or officer
(and not in any other capacity in which service was or is rendered
by the Indemnitees while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the
final disposition of any actual or threatened proceeding, shall be
made only upon delivery to the Company of an undertaking by or on
behalf of the Indemnitee, to repay all amounts so advanced if it
shall ultimately be determined that the Indemnitee is not entitled
to be indemnified under this Agreement or otherwise.
IN WITNESS WHEREOF, the Company and the Indemnitee have
executed this Indemnification Agreement in duplicate on the day and
year first above written.
THE XXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
President
/s/ ___________________________
Signature of Officer or Director
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