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EXHIBIT 10.1(x)
AGREEMENT, DATED AUGUST 19, 1998,
BETWEEN AMERICAN BUSINESS PRODUCTS, INC.
AND XXXXXXX X. XXXXX
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OFFICER INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into this 19th day of August, 1998
between American Business Products, Inc., a Georgia corporation ("Corporation"),
and Xxxxxxx X. Xxxxx ("Officer").
RECITALS
WHEREAS, Officer is an executive officer of Corporation and in such
capacity is performing a valuable service for Corporation;
WHEREAS, the bylaws of Corporation (the "Bylaws") provide for the
indemnification of its directors and executive officers to the maximum extent
authorized by law;
WHEREAS, Section 14-2-857 of the Georgia Business Corporations Code
provides that a corporation may indemnify and advance expenses to an officer who
is not a director of the corporation to the extent, consistent with public
policy, that may be provided by the corporation's articles of incorporation,
bylaws, general or specific action of its board of directors, or contract;
WHEREAS, the number of lawsuits and shareholder derivative suits against
corporations, their directors and officers has increased in recent years, such
lawsuits frequently are without merit and seek damages in amounts having no
reasonable relationship to the amount of compensation received by the directors
and officers from the corporation, and such lawsuits whether or not meritorious
are expensive and time-consuming to defend;
WHEREAS, adequate directors and officers liability insurance may not be
available at a reasonable cost to Corporation;
WHEREAS, Corporation wishes to have Officer continue to serve as an
executive officer of Corporation free from undue concern for unpredictable or
unreasonable claims for damages by reason of Officer's status as an officer of
Corporation, by reason of Officer's decision or actions on its behalf, or by
reason of Officer's decisions or actions in another capacity while serving as an
officer of Corporation;
WHEREAS, Officer has expressed reluctance to continue to serve as an
executive officer of Corporation without assurances that adequate
indemnification is and will continue to be provided; and
WHEREAS, in order to induce Officer to continue to serve as an executive
officer of Corporation, Corporation has determined and agreed to enter into this
Agreement with Officer.
NOW, THEREFORE, in consideration of Officer's continued service as an
executive officer of Corporation, the parties agree as follows:
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1. Indemnity of Officer. Subject only to the limitations set forth in
Section 2 hereof, Corporation hereby agrees to hold harmless and indemnify
Officer against any and all expenses (including attorneys' fees), judgments,
fines, penalties, amounts paid in settlement and any other amounts actually and
reasonably incurred by Officer (each a "Liability") in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including an action by or in the
right of Corporation) to which Officer is, was or at any time becomes a party,
or is threatened to be made a party, by reason of the fact that Officer is, was
or at any time becomes a director, officer, employee or agent of Corporation,
or is or was serving or at any time serves at the request of Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
Corporation and, in respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct with unlawful.
2. Limitations on Indemnity. Corporation shall not be liable under this
Agreement to make any payment in connection with any Liability incurred by
Officer:
(a) To the extent payment for such Liability is made to Officer
under an insurance policy obtained by Corporation;
(b) On account of any suit in which judgment is rendered against
Officer for an accounting of profits made from the purchase or sale by
Officer of securities of Corporation pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any federal, state or local law as and if applicable;
(c) If a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful;
(d) On account of any action, suit or proceeding (other than a
proceeding referred to in Section 6(b) hereof) commenced by the Officer
against Corporation or against any officer, director or stockholder of
Corporation unless authorized in the specific case by action of the Board
of Directors.
(e) On account of acts or omissions not in good faith or which
involve fraudulent, dishonest or willful misconduct or a knowing violation
of law on the part of Officer;
(f) With respect to any transaction from which Officer derived an
improper personal benefit; and
(g) With regard to any payment of unlawful dividends or making
unlawful stock repurchases or redemptions on the part of Officer.
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3. Continuation of Obligations. All agreements and obligations of
Corporation contained herein shall continue during the period Officer is a
director, officer, employee or agent of Corporation (or is or was serving at the
request of Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise) and shall
continue thereafter so long as Officer shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that Officer was serving
Corporation or any such other entity in any capacity referred to herein. Nothing
in this Agreement shall confer upon Officer the right to continue to serve as an
executive officer of Corporation, and, unless otherwise provided in a written
employment agreement between Corporation and Officer, the employment of Officer
by Corporation shall be terminable-at-will by either party.
4. Notification and Defense of Claim. Promptly after receipt by Officer
of notice of the commencement of any action, suit or proceeding, Officer will,
if a claim in respect thereof is to be made against Corporation under this
Agreement, notify Corporation of the commencement thereof. With respect to any
such action, suit or proceeding as to which Officer notifies Corporation of the
commencement thereof:
(a) Corporation will be entitled to participate therein at its own
expense;
(b) Except as otherwise provided below, to the extent that it may
wish, Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Officer. After notice from Corporation to
Officer of its election to assume the defense thereof, Corporation will not
be liable to Officer under this Agreement for any legal or other expenses
subsequently incurred by Officer in connection with the defense thereof
other than reasonable costs of investigation or as otherwise provided
below. Officer shall have the right to employ his counsel in such action,
suit or proceeding but the fees and expenses of such counsel incurred after
notice from Corporation of its assumption of the defense thereof shall be
at the expense of Officer unless (i) the employment of counsel by Officer
has been authorized by Corporation, (ii) Officer shall have reasonably
concluded that there may be a conflict of interest between Corporation and
Officer in the conduct of the defense of such action or (iii) Corporation
shall not in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of Officer's counsel
shall be at the expense of Corporation. Corporation shall not be entitled
to assume the defense of any action, suit or proceeding brought by or on
behalf of Corporation or as to which Officer shall have made the conclusion
provided for in (ii) above; and
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(c) Corporation shall not be liable to indemnify Officer under this
Agreement for any amounts paid in settlement of any action or claim effected
without the Corporation's written consent. Corporation shall not settle any
action or claim in any manner which would impose any penalty or restrictive
covenant on Officer without Officer's written consent. Neither Corporation nor
Officer will unreasonably withhold its or his or her consent to any proposed
settlement.
5. Advancement and Repayment of Expenses.
(a) In the event that Officer employs his or her own counsel pursuant to
Section 4(b)(i) through (iii) above, Corporation shall advance to Officer,
prior to any final disposition of any threatened or pending action, suit or
proceeding, whether civil, criminal, administrative or investigative, any and
all reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit or proceeding within thirty
(30) days after receiving copies of invoices presented to Officer for such
expenses.
(b) Officer agrees that Officer will reimburse Corporation for all
reasonable expenses paid by Corporation in defending any civil or criminal
action, suit or proceeding against Officer in the event and only to the extent
it shall be ultimately determined by a final judicial decision (from which
there is no right of appeal) that Officer is not entitled, under applicable
law, the Bylaws, this Agreement and otherwise, to be indemnified by Corporation
for such expenses.
6. Enforcement.
(a) Corporation expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on Corporation hereby in
order to induce Officer to continue as an Officer of Corporation, and
acknowledges that Officer is relying upon this Agreement in continuing in such
capacity.
(b) In the event Officer is required to bring any action to enforce
rights or to collect amounts due under this Agreement and is successful in such
action, Corporation shall reimburse Officer for all of Officer's reasonable
attorney's fees and expenses in bringing and pursuing such action.
7. Insurance. Although Corporation may, from time to time, maintain
insurance for the purpose of indemnifying Officer and other agents of
Corporation against personal liability, including costs of legal defense,
nothing in this Agreement shall obligate Corporation to do so.
8. Acknowledgment. Corporation and Officer acknowledge that, in certain
instances, federal law or public policy may override applicable state law and
prohibit Corporation from indemnifying Officer under this Agreement or
otherwise if found by a final, unappealable judgment under or by a court having
proper jurisdiction.
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9. Severability. Each of the provisions of this Agreement is a separate
and distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable to any extent for any
reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof, and the affected provision shall
be construed and enforced so as to effectuate the parties' intent to the maximum
extent possible.
10. Governing Law. This Agreement shall be governed by and interpreted
and enforced in accordance with the laws of the State of Georgia as applied to
contracts entered into and to be performed wholly within such state.
11. Binding Effect. This Agreement shall be binding upon Officer and upon
Corporation, its successors and assigns, and shall inure to the benefit of
Officer, his or her heirs, personal representatives and assigns and to the
benefit of Corporation, its successors and assigns.
12. Amendment and Termination. No amendment, modification, waiver,
termination or cancellation of this Agreement shall be effective for any purpose
unless set forth in a writing signed by both parties hereto.
13. Notices. All notices given under this Agreement shall be in writing
and delivered either (a) personally, (b) by registered or certified mail
(postage prepaid, return receipt requested) (c) by recognized overnight courier
service, or (d) by telecopy (if promptly followed by a copy delivered as
provided in clauses (a), (b) or (c) above), as follows:
If to Officer: Xxxxxxx X. Xxxxx
000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
If to Corporation: American Business Products, Inc.
0000 XxxxxXxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: President
Notices given as provided above shall be deemed to be duly given upon
delivery if delivered personally, three (3) business days after mailing if by
registered or certified mail, one (1) business day after mailing if by overnight
courier service and upon confirmation of transmission if by telecopy.
[Signatures on next page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
OFFICER: AMERICAN BUSINESS PRODUCTS, INC.
By: /s/ XXXXX X. XXXXXXXXXXX, III
(Signature) /s/ XXXXXXX X. XXXXX -----------------------------
-------------------------- Xxxxx X. Xxxxxxxxxxx, III
Xxxxxxx X. Xxxxx Chairman, President and Chief
Executive Officer
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