Exhibit 10.11(1)
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INDEMNIFICATION AGREEMENT
This AGREEMENT is made as of _____________________, by Xxxxxxx & Xxxxx,
Incorporated, a Missouri corporation ("Xxxxxxx") and ____________________, of
_____________________ ("Indemnitee").
RECITALS
Indemnitee is a director and/or officer of Xxxxxxx and in such capacity or
capacities is performing a valuable service of Xxxxxxx.
The Restated Articles of Incorporation and By-Laws of Xxxxxxx provide for
the indemnification of the directors and officers of Xxxxxxx and indemnification
is also authorized by Section 351.355 of the General and Business Corporation
Law of Missouri (the "Indemnification Statute").
The Indemnification Statute and Xxxxxxx'x Restated Articles of
Incorporation and By-Laws specifically provide that they are not exclusive as to
the authority to indemnify; thus, they contemplate that indemnification
agreements may be entered into between Xxxxxxx and its directors and officers.
In accordance with the authorization provided by the Indemnification
Statute, Xxxxxxx has purchased and presently maintains a policy or policies of
directors and officers liability insurance ("D&O Insurance"), covering certain
liabilities which may be incurred by Xxxxxxx'x directors and officers in the
performance of their services for Xxxxxxx and for other enterprises.
Xxxxxxx'x Board of Directors believes the policies of D&O Insurance and the
indemnification provided for in Xxxxxxx'x Restated Articles of Incorporation and
By-Laws are not fully adequate to provide appropriate indemnification protection
to Xxxxxxx'x directors and officers. To provide such protection and thereby
induce Indemnitee to serve or continue to serve as a director and/or officer of
Xxxxxxx, Xxxxxxx has determined and agreed to enter into this agreement with
Indemnitee.
NOW THEREFORE, in consideration of the premises and Indemnitee's service as
director and/or officer after the date hereof, Xxxxxxx and Indemnitee do agree
as follows:
1. Definitions
In this Agreement the following terms have the following meanings:
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The term "another enterprise" shall mean any corporation (other than
Xxxxxxx), partnership, joint venture, trust, employee benefit plan or other
legal entity or enterprise.
The term "defense" when used with respect to any proceeding shall include
investigations of any proceeding as well as appeals in any proceeding and shall
also include any defense by way of cross claim or counterclaim.
The term "fines" shall include any excise taxes assessed on Indemnitee with
respect to any employee benefit plan as well as penalties of all types.
The term "proceeding" shall mean any threatened, pending or completed
action, suit or proceeding (including those by or in the right of Xxxxxxx)
whether civil, criminal, administrative or investigative or otherwise and
whether formal or informal.
The term "serving at the request of Xxxxxxx" shall include any service as a
director, officer, employee or agent of Xxxxxxx which imposes duties on, or
involves services by, Indemnitee with respect to any employee benefit plan, its
participants or beneficiaries.
2. Indemnification - General
Xxxxxxx shall indemnify and hold harmless Indemnitee to the fullest extent
permitted or authorized by applicable law. The term "applicable law" means (i)
the Indemnification Statute (other than subsection 6 thereof and any other
subsection comparable in purpose to subsection 6) as in effect on May 7, 1986
and as thereafter amended (but in the case of any such amendment, only to the
extent such amendment permits Xxxxxxx to provide broader indemnification rights
then the Indemnification Statute permitted Xxxxxxx to provide immediately prior
to such amendment) and (ii) any other statutory indemnification provision
adopted after May 7, 1986.
3. Additional Indemnification
Xxxxxxx shall further indemnify and hold harmless Indemnitee if Indemnitee
was or is a party or is threatened to be made party to any proceeding (including
any proceeding by or in the right of Xxxxxxx) by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of Xxxxxxx, or is or
was serving at the request of Xxxxxxx (which request need not be in writing) or
on behalf of Xxxxxxx as a director, officer, employee or agent of another
enterprise or by reason of anything done or not done by him in any such
capacities. The indemnification required by this section shall be made against
any and all judgments, fines, amounts paid in settlement and reasonable expenses
(including attorneys' fees), actually incurred by Indemnitee in connection with
the proceeding in question.
4. Maintenance of D&O Insurance and Indemnification
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(a) Xxxxxxx represents that it presently has the following policies of D&O
Insurance in force (the "D&O Policies"):
Insurer Policy No. Amount Deductible
------- ---------- ------ ----------
So long as Indemnitee shall continue to serve as a director or officer of
Xxxxxxx (or shall continue at the request of Xxxxxxx or on behalf of Xxxxxxx to
serve as director, officer, employee or agent of another enterprise) and
thereafter so long as Indemnitee shall be subject to any possible claim or
proceeding by reason of the fact that Indemnitee was a director or officer of
Xxxxxxx (or served in any of said other capacities), Xxxxxxx will purchase and
maintain in effect for the benefit of Indemnitee one or more valid, binding and
enforceable policies of D&O Insurance providing, in all respects, coverage at
least comparable to that provided pursuant to the D&O Policies in force on the
date hereof.
(b) Notwithstanding Section 4(a) hereof, Xxxxxxx shall not be required to
maintain D&O Insurance in effect if such insurance is not reasonably available
or if, in the reasonable business judgment of the Board of Directors of Xxxxxxx
as it may exist from time to time, either (i) the premium cost for such D&O
Insurance is substantially disproportionate to the amount of coverage or (ii)
the coverage provided by such D&O Insurance is so limited by exclusions that
there is insufficient benefit provided by such D&O Insurance.
(c) If Xxxxxxx, acting under Section 4(b) hereof, does not purchase and
maintain in effect D&O Insurance, Xxxxxxx shall indemnify and hold harmless
Indemnitee to the full extent of the coverage which would otherwise have been
provided for the benefit of Indemnitee pursuant to the D&O Policies.
5. Limitations on Certain Indemnification
Xxxxxxx will not hold Indemnitee harmless or provide indemnification
pursuant to Section 2, 3 or 4 hereof:
(i) for amounts indemnified by Xxxxxxx other than pursuant to this
Agreement and amounts paid pursuant to policies of D&O Insurance;
(ii) in respect to remuneration paid to Indemnitee if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(iii) on account of any suit for any accounting of profits made from
the purchase or sale by Indemnitee of securities of Xxxxxxx pursuant to
Section 16(b)
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of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local law;
(iv) on account of Indemnitee's conduct which is finally adjudged by a
court to have been knowingly fraudulent, deliberately dishonest or willful
misconduct; or
(v) if a final adjudication by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful.
6. Notification and Defense of Claim
After receipt by Indemnitee of notice of the commencement of any
proceeding, Indemnitee will, if a claim in respect thereof may be made against
Xxxxxxx under this Agreement, promptly notify Xxxxxxx. With respect to any such
proceeding as to which Indemnitee notifies Xxxxxxx of the commencement thereof:
(i) Xxxxxxx will be entitled to participate therein at its own
expense.
(ii) Except as otherwise provided in the next paragraph, Xxxxxxx,
jointly with any other indemnifying party similarly notified, will be
entitled to assume the defense thereof, with counsel reasonably
satisfactory to Indemnitee. After notice from Xxxxxxx to Indemnitee of
Xxxxxxx'x election to assume the defense thereof, Xxxxxxx will not be
liable to Indemnitee under this Agreement for any legal or other expenses
subsequently incurred by Indemnitee in the defense thereof other than
reasonable costs of investigation or as noted in the next paragraph of this
subsection (ii).
Indemnitee may employ his own counsel in such proceeding but the fees
and expenses of such counsel incurred after notice from Xxxxxxx of its
assumption of the defense thereof shall be at the expense of Indemnitee
unless (a) the employment of counsel by Indemnitee has been authorized by
Xxxxxxx or (b) Indemnitee shall have reasonably concluded that there may be
a conflict of interest between Xxxxxxx and Indemnitee in the conduct of the
defense of such proceeding, or (c) Xxxxxxx shall not in fact have employed
counsel to assume the defense of such proceeding, in each of which cases
the fees and expenses of Indemnitee's counsel shall be at the expense of
Xxxxxxx. Xxxxxxx shall not be entitled to assume the defense of any
proceeding brought by or on behalf of Xxxxxxx or as to which Indemnitee
shall have made the conclusion provided for in clause (b) of this
subsection (ii).
(iii) Xxxxxxx shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any proceeding effected
without Xxxxxxx'x written consent. Xxxxxxx shall not settle any proceeding
in any manner which would impose any penalty or limitation on Indemnitee
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without Indemnitee's written consent. Neither Xxxxxxx nor Indemnitee will
unreasonably withhold their consent to any proposed settlement.
7. Advance of Expenses, Judgments, Etc.
The expense (including attorneys' fees) incurred by Indemnitee in defending
any proceeding shall be advanced by Xxxxxxx at the request of the Indemnitee.
Any judgments, fines or amounts to be paid in settlement shall also be advanced
by Xxxxxxx to Indemnitee upon request. If it shall ultimately be determined that
Indemnitee was not entitled to be indemnified, or was not entitled to be fully
indemnified, Indemnitee shall repay to Xxxxxxx all amounts advanced, or the
appropriate portion thereof, so advanced.
8. Right of Indemnitee to Bring Suit
If a claim of indemnification or a claim for an advance under this
Agreement is not paid in full by Xxxxxxx within 90 or 15 days, respectively,
after a written claim has been made to Xxxxxxx, Indemnitee may bring suit
against Xxxxxxx to recover the unpaid amount of the claim. If Indemnitee is
successful in whole or in part in such suit, Indemnitee shall also be paid the
expense of prosecuting such claim.
9. Continuation of Indemnitee
All agreements and obligations of Xxxxxxx contained herein shall continue
during the period Indemnitee is a director, officer, employee or agent of
Xxxxxxx (of is or was serving at the request of Xxxxxxx or on behalf of Xxxxxxx
as a director, officer, employee or agent of another enterprise) 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,
employee or agent of Xxxxxxx or serving in any other capacity referred to
herein.
10. Other Rights and Remedies
The indemnification and other rights provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may be entitled
under any provision of law, Xxxxxxx'x Restated Articles of Incorporation and
Xxxxxxx'x By-Laws, other agreements, vote of shareholders or disinterested
directors or otherwise, both as to action in Indemnitee's official capacity and
as to action in another capacity while occupying any of the positions or having
any of the relationships referred to in this Agreement, and shall continue after
Indemnitee has ceased to occupy such position or have such relationship.
11. Severability
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If any provision of this Agreement shall be held to be invalid, illegal or
unenforceable (a) the validity, legality and enforceability of the remaining
provisions of this Agreement shall not be in any way affected or impaired
thereby, and (b) to the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the intent manifested by
the provision held invalid, illegal or unenforceable.
Each section of this Agreement is a separate and independent portion of
this Agreement. If the indemnification to which Indemnitee is entitled as
respects any aspect of any claim varies between two or more sections of this
Agreement, that section providing the most comprehensive indemnification shall
apply.
12. Modification and Waiver
No supplement or amendment of this Agreement shall be binding unless
executed in writing by both of the parties. No waiver of any of the provisions
of this Agreement shall be binding unless executed in writing by the person
making the waiver nor shall such waiver constitute a continuing waiver.
13. Notices
All notices, requests, demand and other communication hereunder shall be in
writing and shall be deemed to have been duly given if (i) delivered by hand and
receipted for by the party to whom said notice or other communication shall have
been directed or if (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed:
(i) If to Indemnitee, to
or to such other address as may be furnished to Leggett by Indemnitee:
(ii) If to Xxxxxxx, to
Xxxxxxx & Xxxxx, Incorporated
No. 0 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
or to such other address as may have been furnished to Indemnitee by
Xxxxxxx.
14. Governing Law
This Agreement shall be construed, enforced and governed by Missouri law.
15. Heirs, Successors and Assigns
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This Agreement shall inure to the benefit of and be enforceable by the
Indemnitee's personal or legal representatives, executors, administrators,
heirs, devisees and legatees.
This Agreement is binding on the successors and assigns of Xxxxxxx. Xxxxxxx
will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of Xxxxxxx to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that Xxxxxxx would be required to perform it
if no such succession had taken place (the assumption shall be by agreement in
form and substance reasonably satisfactory to Indemnitee).
16. Miscellaneous
This Agreement does not create any right in Indemnitee to employment with
Xxxxxxx or its affiliates.
Xxxxxxx expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on Xxxxxxx hereby in order to
induce Indemnitee to continue as a director and/or officer of Xxxxxxx and
acknowledges that Indemnitee is relying upon this Agreement in continuing in
such capacity or capacities.
All references herein in the masculine gender shall, when appropriate,
refer to the feminine gender.
In the event of any ambiguity, vagueness or other matter involving the
interpretation or meaning of this Agreement, this Agreement shall be liberally
construed so as to provide the Indemnitee the full benefits set out herein.
Entered into on the day and year first above written.
ATTEST: XXXXXXX & XXXXX, INCORPORATED
By By
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Indemnitee
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