INDEMNITY AGREEMENT
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This INDEMNITY AGREEMENT dated as of February 5, 1997, is made
by and between Knight Transportation, Inc. (the "Corporation"), and Xxxxx X.
Xxxxxxx (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.
Section 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
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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 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.
Section 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.
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(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 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.
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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
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(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 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:
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If to Indemnitee: Xxxxx X. Xxxxxxx
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
January 1, 1997.
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/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
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INDEMNITY AGREEMENT
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This INDEMNITY AGREEMENT dated as of February 5, 1997, is made
by and between Knight Transportation, Inc. (the "Corporation"), and Xxxxx X.
Xxxxxx (the "Indemnitee").
RECITALS
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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.
Section 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
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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 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.
Section 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.
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(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 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.
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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
-5-
(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 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: Xxxxx X. Xxxxxx
0000 Xxxxxx Xxxx
Xxxxx Xxxxx, XX 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
January 1, 1997.
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/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
-7-
INDEMNITY AGREEMENT
-------------------
This INDEMNITY AGREEMENT dated as of February 5, 1997, is made
by and between Knight Transportation, Inc. (the "Corporation"), and L. Xxxxx
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").
(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.
Section 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
-2-
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 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.
Section 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.
-3-
(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 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
-5-
(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 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: L. Xxxxx 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
January 1, 1997.
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/ L. Xxxxx Xxxxxx
----------------------------------------
L. Xxxxx Xxxxxx
-7-
INDEMNITY AGREEMENT
-------------------
This INDEMNITY AGREEMENT dated as of February 5, 1997, is made
by and between Knight Transportation, Inc. (the "Corporation"), and Xxxx X.
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").
(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.
Section 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
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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 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.
Section 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.
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(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 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.
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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
-5-
(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 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:
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If to Indemnitee: Xxxx X. 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
January 1, 1997.
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 X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
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INDEMNITY AGREEMENT
-------------------
This INDEMNITY AGREEMENT dated as of February 5, 1997, is made
by and between Knight Transportation, Inc. (the "Corporation"), and Xxxxx X.
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").
(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.
Section 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
-2-
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 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.
Section 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.
-3-
(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 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
-5-
(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 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: Xxxxx X. 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
January 1, 1997.
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/ L. Xxxxx Xxxxxx
-------------------------------------
L. Xxxxx Xxxxxx
Chairman of the Board
INDEMNITEE:
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
-7-
INDEMNITY AGREEMENT
-------------------
This INDEMNITY AGREEMENT dated as of February 5, 1997, is made
by and between Knight Transportation, Inc. (the "Corporation"), and X. X. 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").
(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.
Section 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
-2-
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 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.
Section 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.
-3-
(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 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
-5-
(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 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: X. X. Xxxxxx
00000 Xxxxxxxxxx
Xxxxxxxx Xxxx, XX 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
January 1, 1997.
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/ X. X. Xxxxxx
----------------------------------------
X. X. Xxxxxx
-7-
INDEMNITY AGREEMENT
-------------------
This INDEMNITY AGREEMENT dated as of February 5, 1997, is made
by and between Knight Transportation, Inc. (the "Corporation"), and Minor
Xxxxxxx (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.
Section 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
-2-
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 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.
Section 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.
-3-
(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 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
-5-
(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 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: Minor Perkins
000 Xxxxx Xxxx Xxxx., #000
Xxxxxxx, XX 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
January 1, 1997.
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:
Minor Perkins
----------------------------------------
Minor Perkins
-7-
INDEMNITY AGREEMENT
-------------------
This INDEMNITY AGREEMENT dated as of February 5, 1997, is made
by and between Knight Transportation, Inc. (the "Corporation"), and Xxxxx X.
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").
(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.
Section 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
-2-
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 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.
Section 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.
-3-
(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 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
-5-
(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 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: Xxxxx X. Xxxxxx
0000 X. Xxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxx, XX 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
January 1, 1997.
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:
Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
-7-
INDEMNITY AGREEMENT
-------------------
This INDEMNITY AGREEMENT dated as of February 5, 1997, is made
by and between Knight Transportation, Inc. (the "Corporation"), and Xxxxxx X.
Xxxxx (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.
Section 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
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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 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.
Section 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.
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(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 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.
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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
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(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 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:
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If to Indemnitee: Xxxxxx X. Xxxxx
00000 X. Xxxxxx Xxxx
Xxxxxxxxxx, XX 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
January 1, 1997.
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/ Xxxxxx X. Xxxxx
----------------------------------------
Xxxxxx X. Xxxxx
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