EXHIBIT 10.18
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into effective as of January 23, 1997
between RDO Equipment Co., a Delaware corporation (the "Company"), and
_______________ (the "Indemnitee") and amended and restated as of April 3, 2003.
RECITALS
A. The Company is concerned with the retention of qualified, competent
persons to serve as directors and officers of the Company.
B. Highly competent persons are becoming increasingly reluctant to serve
publicly-held corporations as directors and officers or in other capacities
unless they are provided with adequate protection through insurance and/or
adequate indemnification against risks of claims and actions against them
arising out of their service to and activities on behalf of the Company.
C. As an inducement for the Indemnitee to serve or continue to serve as a
director or officer of the Company, the Indemnitee requires substantial
protection against personal liability for the Indemnitee's actions in serving as
a director or officer of the Company.
D. The Company's Certificate of Incorporation and Bylaws currently provide
for mandatory indemnification of officers and directors of the Company to the
fullest extent permitted under Delaware law.
E. In order to provide the Indemnitee with specific contractual assurance
that the protection provided by the Company's Certificate of Incorporation and
Bylaws will be available to the Indemnitee (regardless of, among other things,
any amendment to or revocation of such Certificate of Incorporation and Bylaws
or any change in the composition of the Company's Board of Directors or
acquisition transaction relating to the Company), the Company wishes to provide
for the indemnification of, and the advancing of expenses to, the Indemnitee to
the fullest extent (whether partial or complete) permitted by law and as set
forth in this Agreement.
F. In addition, to the extent insurance is maintained, the Company wishes
to provide for the continued coverage of the Indemnitee under the Company's
directors' and officers' liability insurance policies.
AGREEMENT
NOW THEREFORE, in consideration of the premises and covenants contained
herein, the Company and the Indemnitee do hereby agree as follows:
1. Definitions. For the purposes of this Agreement, capitalized terms have
the following meaning:
(a) "Board" means the Board of Directors of the Company.
(b) "Change in Control" means the following:
(1) the sale, lease, exchange or other transfer, directly or
indirectly, of substantially all of the assets of the Company (in one
transaction or in a series of related transactions) to a person or
entity that is not controlled by the Company;
(2) the approval by the shareholders of the Company of any plan
or proposal for the liquidation or dissolution of the Company;
(3) a merger or consolidation to which the Company is a party if
the shareholders of the Company immediately prior to effective date of
such merger or consolidation have "beneficial ownership" (as defined
in Rule 13d-3 under the Exchange Act), immediately following the
effective date of such merger or consolidation, of securities of the
surviving corporation representing (A) more than 50%, but less than
80%, of the combined voting power of the surviving corporation's then
outstanding securities ordinarily having the right to vote at
elections of directors, unless such merger or consolidation has been
approved in advance by the Continuity Directors, or (B) 50% or less of
the combined voting power of the surviving corporation's then
outstanding securities ordinarily having the right to vote at
elections of directors (regardless of any approval by the Continuity
Directors);
(4) any person becomes, after the Effective Date, the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of (A) 20% or more, but not 50% or more, of the combined
voting power of the Company's outstanding securities ordinarily having
the right to vote at elections of directors, unless the transaction
resulting in such ownership has been approved in advance by the
Continuity Directors, or (B) 50% or more of the combined voting power
of the Company's outstanding securities ordinarily having the right to
vote at elections of directors (regardless of any approval by the
Continuity Directors); or
(5) the Continuity Directors cease for any reason to constitute
at least a majority of the Board.
Notwithstanding anything in this Section 1(c) to the contrary, none of the
following events, in and of itself, will be deemed to constitute a Change
in Control for purposes of this Section 1(b): (i) the transfer by Xxxxxx X.
Xxxxxx ("Xxxxxx") of shares of Class A Common Stock or Class B Common Stock
of the Company to a trust provided that, until his death, Xxxxxx retains
voting control with respect to such shares; (ii) the distribution to
beneficiaries upon Xxxxxx'x death of such shares in accordance with such
trust or other estate plan; or (iii) the conversion of shares of Class B
Common Stock into shares of Class A Common Stock, provided that this
exception from the definition of Change in Control for conversions relates
only to the conversion itself and not to any transfers that may occur in
conjunction with such conversions.
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(c) "Corporate Status" describes the status of a person who is or was
a director, officer, member of a committee , employee, agent or fiduciary
of the Company or is or was serving at the request of the Company as a
director, officer, member of a committee, employee or agent of any Other
Enterprise.
(d) "Disinterested Director" means a director of the Company who is
not and was not a party to the Proceeding in respect of which
indemnification is sought by the Indemnitee.
(e) "Effective Date" means the date first set forth above.
(f) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(g) "Expenses" include all reasonable attorneys' fees, retainers,
court costs, transcript costs, expert fees, witness fees, travel expenses,
duplicating and printing costs, and all other disbursements or expenses of
the type customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, or being or preparing to
be a witness in or otherwise participating in any Proceeding, and Expenses
"incurred in connection with any Proceeding" shall also include all of the
foregoing incurred (whether or not by then paid) by the Indemnitee or on
the Indemnitee's behalf in connection with complying with the procedures
and requirements of this Agreement, including but not limited to the
procedures set forth in Sections 5, 6 and 8, and any interest or other
costs incurred (whether or not by then paid) due to delay in payment by the
Company caused by the time taken for the advancement of Expenses,
determination, adjudication or arbitration processes provided for herein,.
(h) "Good Faith" means the Indemnitee having acted in good faith and
in a manner that the Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any criminal
Proceeding, having had no reasonable cause to believe that the Indemnitee's
conduct was unlawful.
(i) "Continuity Director" means any individual who is a member
of the Board on the Effective Date and any individual who subsequently
becomes a member of the Board whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at least a majority
of the Continuity Directors (either by specific vote or by approval of the
Company's proxy statement in which such individual is named as a nominee
for director without objection to such nomination).
(j) "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is,
nor in the past five years has been, retained to represent: (i) the Company
or the Indemnitee in any matter material to either such party, or (ii) any
other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel"
does not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing
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either the Company or the Indemnitee in an action to determine the
Indemnitee's rights under this Agreement.
(k) "Other Enterprise" means the Company and any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise of which the Indemnitee is or was serving at the request of the
Company as a director, officer, member of a committee, employee, agent or
fiduciary.
(l) "Proceeding" includes any action, suit, arbitration,
alternative dispute resolution mechanism, investigation, administrative
hearing or any other actual, threatened or completed proceeding whether
civil, criminal, administrative or investigative, other than one initiated
by the Indemnitee without the authorization of the Company. For purposes of
the foregoing sentence, a "Proceeding" will not be deemed to have been
initiated by the Indemnitee without the authorization of the Company where
the Indemnitee seeks pursuant to Section 8 of this Agreement to enforce the
Indemnitee's rights under this Agreement.
2. Term of Agreement. This Agreement will continue until and terminate upon
the later of (i) 10 years after the date that the Indemnitee has ceased to serve
as a director, officer, employee, agent or fiduciary of the Company or any Other
Enterprise, or (ii) the final termination (as to which all rights of appeal have
been exhausted or lapsed) of all pending Proceedings in respect of which the
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by the Indemnitee pursuant to Section
8 of this Agreement.
3. Agreement to Serve; Notice of Proceedings. The Indemnitee agrees to
serve as a director, officer, or member of a committee of the Company for so
long as the Indemnitee is duly appointed or elected and qualified or until such
time as the Indemnitee resigns from such position; provided, however, that
nothing contained in this Agreement is intended to create on the part of the
Indemnitee any right to continued employment or service with the Company or any
Other Enterprise. The Indemnitee agrees promptly to notify the Company in
writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or matter
that may be subject to indemnification or advancement of Expenses under this
Agreement; provided, however, that failure of the Indemnitee to give such notice
promptly will not relieve the Company from any liability that it may have to the
Indemnitee otherwise than under this Agreement and will relieve the Company from
liability under this Agreement only to the extent that the Company has been
prejudiced.
4. Indemnification.
(a) In General. In connection with any Proceeding, the Company agrees
to indemnify, hold harmless, and advance Expenses to, the Indemnitee as
provided in this Agreement unless prohibited by applicable law in effect on
the date hereof, or, if broader rights are available to the Indemnitee
under applicable law,to the fullest extent not prohibited by applicable law
in effect on the date hereof, and in either case also to such greater
extent as applicable law may hereafter from time to time not prohibit, it
being
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understood and agreed that the Indemnitee shall be entitled to the broadest
rights available.
(b) Proceedings Other Than Proceedings by or in the Right of the
Company. If, by reason of the Indemnitee's Corporate Status, the Indemnitee
is, or is threatened to be made, a party to any Proceeding, other than a
Proceeding by or in the right of the Company, the Company will indemnify
the Indemnitee against Expenses, judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred (whether or not by then
paid) by the Indemnitee or on the Indemnitee's behalf in connection with
such Proceeding or any claim, issue or matter therein, unless in accordance
with the procedures and presumptions set forth herein a final and
nonappealable determination has been made that the Indemnitee did not act
in Good Faith.
(c) Proceedings by or in the Right of the Company. If, by reason of
the Indemnitee's Corporate Status, the Indemnitee is, or is threatened to
be made, a party to any Proceeding brought by or in the right of the
Company to procure a judgment in its favor, the Company will indemnify the
Indemnitee against Expenses, judgments, penalties, and amounts paid in
settlement, actually and reasonably incurred (whether or not by then paid)
by the Indemnitee or on the Indemnitee's behalf in connection with such
Proceeding or any claim, issue or matter therein, unless in accordance with
the procedures and presumptions set forth herein a final and nonappealable
determination has been made that the Indemnitee did not act in Good Faith.
Notwithstanding the foregoing, no such indemnification will be made if
applicable law expressly prohibits such indemnification; provided, however,
that, notwithstanding such law, indemnification will nevertheless be made
by the Company in such event if and only to the extent that the Court of
Chancery of the State of Delaware (or the court in which such Proceeding
has been brought or is pending) determines.
(d) Indemnification of a Party Who is Wholly or Partly Successful. If,
by reason of the Indemnitee's Corporate Status, the Indemnitee is, or is
threatened to be made, a party to any Proceeding and it is determined that
the Indemnitee is not entitled to indemnification under any other
provisions of this Agreement, then notwithstanding such other provisions of
this Agreement, to the extent that the Indemnitee is successful, on the
merits or otherwise, in such Proceeding, the Indemnitee will be indemnified
to the maximum extent not prohibited by applicable law against all
Expenses, judgments, penalties, fines, and amounts paid in settlement,
actually and reasonably incurred (whether or not by then paid) by the
Indemnitee or on the Indemnitee's behalf in connection with such Proceeding
or any claim, issue or matter therein. If in the foregoing circumstances
the Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company will indemnify
the Indemnitee to the maximum extent not prohibited by applicable law
against all Expenses, judgments, penalties, fines, and amounts paid in
settlement, actually and reasonably incurred (whether or not by then paid)
by the Indemnitee or on the Indemnitee's behalf in connection with such
Proceeding. For purposes of this Section 4(d), and without limitation, the
termination of
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any claim, issue or matter in such a Proceeding by dismissal, with or
without prejudice, will be deemed to be a successful result as to such
claim, issue or matter.
(e) Indemnification for Expenses of a Witness. Notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee, by
reason of the Indemnitee's Corporate Status, is, or is threatened to be, a
witness or otherwise involved (other than as a party) in any Proceeding,
the Indemnitee will be indemnified against all Expenses actually and
reasonably incurred (whether or not by then paid) by the Indemnitee or on
the Indemnitee's behalf in connection with such Proceeding or any claim,
issue or matter therein.
5. Advancement of Expenses. Notwithstanding any provision to the contrary
in Section 6 or any other Section of this Agreement, the Company will advance
all reasonable Expenses that, by reason of the Indemnitee's Corporate Status,
were incurred (whether or not by then paid) by or on behalf of the Indemnitee in
connection with any Proceeding, including but not limited to any fee retainers
or similar arrangements required or requested from the Indemnitee (whether or
not by then paid), within 20 days after the receipt by the Company of a
statement or statements from the Indemnitee requesting such advance or advances,
whether prior to or after final disposition of such Proceeding. Such statement
or statements must reasonably evidence the Expenses incurred by, including any
fee retainers or similar arrangements requested of, the Indemnitee (whether or
not by then paid) and must include or be preceded or accompanied by an
undertaking by or on behalf of the Indemnitee to repay any advancement of
Expenses if it is ultimately determined (as to which all rights of appeal have
been exhausted or lapsed) that the Indemnitee is not entitled to be indemnified
against such Expenses. Any advance and undertakings to repay pursuant to this
Section 5 will be unsecured and interest free.
6. Procedures for Determination of Entitlement to Indemnification.
(a) Initial Request. To obtain indemnification under this Agreement,
the Indemnitee must submit to the Company a written request, including
therein or therewith such documentation and information as is reasonably
available to the Indemnitee and is reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to indemnification
under this Agreement. The President and/or Secretary of the Company will
promptly advise the Board in writing that the Indemnitee has requested
indemnification.
(b) Method of Determination. A determination (if required by
applicable law) with respect to the Indemnitee's entitlement to
indemnification will be made within 90 days as follows:
(1) If a Change in Control has occurred, unless the Indemnitee
requests in writing that such determination be made in accordance with
clause (2) of this Section 6(b), the determination will be made by
Independent Counsel in a written opinion to the Board, a copy of which
will be delivered to the Indemnitee.
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(2) If a Change of Control has not occurred, and subject to
Section 6(e) of this Agreement, the determination will be made by the
Board by a majority vote of a quorum consisting of Disinterested
Directors. In the event that a quorum of the Board consisting of
Disinterested Directors is not obtainable or, even if obtainable, such
quorum of Disinterested Directors so directs, the determination will
be made by Independent Counsel in a written opinion to the Board, a
copy of which will be delivered to the Indemnitee.
(c) Selection, Payment and Discharge of Independent Counsel. In the
event that the determination of entitlement to indemnification is to be
made by Independent Counsel pursuant to Section 6(b) of this Agreement, the
Independent Counsel will be selected, paid and discharged in the following
manner:
(1) If a Change of Control has not occurred, the Independent
Counsel will be selected by the Board, and the Company will give
written notice to the Indemnitee advising the Indemnitee of the
identity of the Independent Counsel so selected.
(2) If a Change of Control has occurred, the Independent Counsel
will be selected by the Indemnitee (unless the Indemnitee requests
that such selection be made by the Board, in which event clause (1) of
this Section 6(c) applies), and the Indemnitee must give written
notice to the Company advising it of the identity of the Independent
Counsel so selected.
(3) Following the initial selection described in clauses (1) and
(2) of this Section 6(c), the Indemnitee or the Company, as the case
may be, may, within seven days after such written notice of selection
has been given, deliver to the other party a written objection to such
selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in Section 1(j) of this Agreement,
and the objection must set forth with particularity the factual basis
of such assertion. Absent a proper and timely objection, the person so
selected will act as Independent Counsel. If such written objection is
made, the Independent Counsel so selected may not serve as Independent
Counsel unless and until a court has determined that such objection is
without merit.
(4) Either the Company or the Indemnitee may petition the Court
of Chancery of the State of Delaware if the parties have been unable
to agree on the selection of Independent Counsel within 20 days after
submission by the Indemnitee of a written request for indemnification
pursuant to Section 6(a) of this Agreement. Such petition will request
a determination whether an objection to the party's selection is
without merit and/or seek the appointment as Independent Counsel of a
person selected by the Court or by such other person as the Court may
designate. A person so appointed will act as Independent Counsel under
Section 6(b) of this Agreement.
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(5) The Company will pay any and all reasonable fees and expenses
of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to this Agreement, and the Company
will pay all reasonable fees and expenses incident to the procedures
of this Section 6(c), regardless of the manner in which such
Independent Counsel was selected or appointed.
(6) Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 8(a)(3) of this Agreement, Independent
Counsel will be discharged and relieved of any further responsibility
in such capacity (subject to the applicable standards of professional
conduct then prevailing).
(d) Cooperation. The Indemnitee agrees to cooperate with the person,
persons or entity making the determination with respect to the Indemnitee's
entitlement to indemnification under this Agreement, including providing to
such person, persons or entity upon reasonable advance request any
documentation or information that is not privileged or otherwise protected
from disclosure and that is reasonably available to the Indemnitee and
reasonably necessary to such determination. Any costs or expenses
(including attorneys' fees and disbursements) incurred (whether or not by
then paid) by the Indemnitee in so cooperating with the person, persons or
entity making such determination will be borne by the Company (irrespective
of the determination as to the Indemnitee's entitlement to
indemnification), and the Company hereby indemnifies and agrees to hold the
Indemnitee harmless therefrom.
(e) Payment. If it is determined that the Indemnitee is entitled to
indemnification, payment to the Indemnitee must be made within 10 days
after such determination.
7. Presumptions and Effect of Certain Proceedings.
(a) Burden of Proof. In making a determination with respect to
entitlement to indemnification hereunder, the person or persons or entity
making such determination will presume that the Indemnitee is entitled to
indemnification under this Agreement if the Indemnitee has submitted a
request for indemnification in accordance with Section 6(a) of this
Agreement, and the Company will have the burden of proof to overcome that
presumption in connection with the making by any person, persons or entity
of any determination contrary to that presumption.
(b) Effect of Other Proceedings. The termination of any
Proceeding or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, will not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of the Indemnitee to
indemnification or create a presumption that the Indemnitee did not act in
Good Faith.
(c) Reliance as Safe Harbor. For purposes of any determination of Good
Faith, the Indemnitee will be deemed to have acted in Good Faith if the
Indemnitee's action is based on the records or books of account of the
Company or any Other
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Enterprise, including financial statements, or on information supplied to
the Indemnitee by the officers of the Company or any Other Enterprise in
the course of their duties, or on the advice of legal counsel for the
Company or any Other Enterprise or on information or records given or
reports made to the Company or any Other Enterprise by an independent
certified public accountant or by an appraiser or other expert selected
with reasonable care by the Company or any Other Enterprise. The provisions
of this Section 7(c) will not be deemed to be exclusive or to limit in any
way the other circumstances in which the Indemnitee may be deemed to have
met the applicable standard of conduct set forth in this Agreement.
(d) Actions of Others. The knowledge and/or actions, or failure to
act, of any director, officer, agent or employee of the Company or any
Other Enterprise will not be imputed to the Indemnitee for purposes of
determining the right of indemnification under this Agreement.
8. Rights of the Indemnitee.
(a) Application to Disputes. This Section 8 applies in the event of a
Dispute. For purposes of this Section, a "Dispute" means any of the
following events: (i) a determination is made pursuant to Section 6 of this
Agreement that the Indemnitee is not entitled to indemnification under this
Agreement; (ii) advancement of Expenses is not timely made pursuant to
Section 5 of this Agreement; (iii) the determination of entitlement to
indemnification to be made pursuant to Section 6(b) of this Agreement has
not been made within 90 days after receipt by the Company of the request
for indemnification; or (iv) payment of indemnification is not made within
10 days after a determination has been made that the Indemnitee is entitled
to indemnification or such determination is deemed to have been made
pursuant to Section 6 of this Agreement.
(b) Adjudication. In the event of a Dispute, the Indemnitee is
entitled to an adjudication in any court of competent jurisdiction of the
Indemnitee's entitlement to such indemnification or advancement of
Expenses. Alternatively, the Indemnitee, at the Indemnitee's option, may
seek an award in arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association. The
Indemnitee must commence such proceeding seeking an adjudication or an
award in arbitration within 180 days following the date on which the
Indemnitee first has the right to commence such proceeding pursuant to this
Section 8(b). The Company will not oppose the Indemnitee's right to seek
any such adjudication or award in arbitration.
(c) De Novo Review. In the event that a determination has been made
pursuant to Section 6 of this Agreement that the Indemnitee is not entitled
to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 8 will be conducted in all respects as a de novo
trial, or arbitration, on the merits, and the Indemnitee will not be
prejudiced by reason of that adverse determination. In any such proceeding
or arbitration, the Company has the burden of proving that the Indemnitee
is not entitled to indemnification or advancement of Expenses, as the case
may be.
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(d) Company Bound. If a determination has been made or is deemed to
have been made pursuant to Section 6 of this Agreement that the Indemnitee
is entitled to indemnification, the Company will be bound by such
determination in any judicial proceeding or arbitration absent (i) a
misstatement by the Indemnitee of a material fact, or an omission of a
material fact necessary to make the Indemnitee's statement not materially
misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law.
(e) Procedures Valid. The Company is precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 8
that the procedures and presumptions of this Agreement are not valid,
binding and enforceable and must stipulate in any such court or before any
such arbitrator that the Company is bound by all the provisions of this
Agreement.
(f) Expenses of Adjudication. In the event that the Indemnitee,
pursuant to this Section 8, seeks a judicial adjudication or an award in
arbitration to enforce the Indemnitee's rights under, or to recover damages
for breach of, this Agreement, the Indemnitee will be entitled to recover
from the Company, and will be indemnified by the Company against, any and
all expenses (of the types described in the definition of Expenses in
Section 1(g) of this Agreement) actually and reasonably incurred (whether
or not by then paid) by the Indemnitee in such adjudication or arbitration,
but only if the Indemnitee prevails therein with respect to indemnification
or advancement of at least fifty percent (50%) of the Expenses sought. If
it is determined in such adjudication or arbitration that the Indemnitee is
entitled to receive part but less than fifty percent (50%) of the
indemnification or advancement of Expenses sought, the expenses incurred
(whether or not by then paid) by the Indemnitee in connection with such
adjudication or arbitration will be appropriately pro-rated.
9. Non-Exclusivity; Insurance; Subrogation; Duplication of Payments.
(a) Non-Exclusivity. The rights of the Indemnitee are not exclusive of
any rights to which the Indemnitee may be entitled under the Company's
Certificate of Incorporation or Bylaws, any agreement, any vote of
stockholders or Disinterested Directors, applicable law or otherwise both
as to action in the Indemnitee's Corporate Status and as to action in any
other capacity while holding such office. In the event of a conflict
between this Agreement and any of the foregoing, the Indemnitee shall be
entitled to the broadest rights provided. No amendment, alteration,
rescission or replacement of this Agreement or any provision hereof will be
effective as to the Indemnitee with respect to any action taken or omitted
by such the Indemnitee in the Indemnitee's Corporate Status prior to such
amendment, alteration, rescission or replacement.
(b) Liability Insurance. To the extent the Company maintains an
insurance policy or policies for directors' and officers' liability, the
Indemnitee will be covered by such policy or policies, in accordance with
its or their terms, to the maximum extent of
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the coverage available for any Company director or officer. Upon knowledge
of the initiation of any Proceeding involving the Indemnitee, the Company
shall give prompt written notice of such to its insurer in accordance with
the procedures set forth in each applicable insurance policy and take all
necessary action to cause such insurer to pay, on behalf of the Indemnitee,
all amounts payable as a result of such Proceeding.
(c) Subrogation. In the event of payment under this Agreement, the
Company will be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee against any person or organization,
and the Indemnitee will execute all papers and take all actions necessary
to secure such rights, including the execution of such documents necessary
to enable the Company effectively to bring suit to enforce such rights.
(d) No Duplication of Payments. The Company will not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that the Indemnitee has otherwise actually
received payment under any insurance policy, the Certificate of
Incorporation or Bylaws or otherwise.
10. Miscellaneous.
(a) Amendments and Waiver. No supplement, modification or amendment of
this Agreement will be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement will
be deemed or will constitute a waiver of any other provisions hereof
(whether or not similar) nor will such waiver constitute a continuing
waiver.
(b) Successors and Assigns. This Agreement will be binding upon
and inure to the benefit of and be enforceable by the parties hereto and
their respective successors and assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company), spouses,
heirs and personal and legal representatives. The Company will require and
cause any such successor, by written agreement in form and substance
satisfactory to the Indemnitee, to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place. This
Agreement will continue in effect regardless of whether Indemnitee
continues to serve as a director or officer of the Company or of any Other
Enterprise.
(c) Severability. The provisions of this Agreement will be severable
in the event that any of the provisions hereof (including any provision
within a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, and
the remaining provisions will remain enforceable to the fullest extent
permitted by law.
(d) Notice. All notices, requests, demands and other communications
under this Agreement must be in writing and will be deemed to have been
duly given (i) if
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delivered by hand and receipted for by the party to whom such notice or
other communication was directed, on the date of delivery, or (ii) if
mailed by certified or registered mail or by express mail, postage prepaid
and properly addressed, on the third business day after the date on which
it is so mailed. Unless subsequently modified as provided herein, notice to
the Company will be directed to RDO Equipment Co., 0000 Xxxxx Xxxxxxxxxx
Xxxxx, Xxxxx, Xxxxx Xxxxxx 00000 (Attn: Chief Executive Officer), and
notice to the Indemnitee will be directed to the address set forth with the
Indemnitee's signature below.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which will for all purposes be deemed an original but
all of which together will constitute one and the same Agreement. Only one
such counterpart signed by the party against whom enforceability is sought
needs to be produced to evidence the existence of this Agreement.
(f) Governing Law. This Agreement will be governed by and construed
and enforced in accordance with the law of the State of Delaware applicable
to contracts made to be performed in such state without giving effect to
the principles of conflicts of laws.
The parties have executed this Agreement and the amendment and restatement
thereof on the dates above written.
RDO EQUIPMENT CO.
By:
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Its:
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INDEMNITEE
------------------------------------------------
(Signature)
------------------------------------------------
(Name)
------------------------------------------------
(Address)
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12
GUARANTEE
To assist RDO Equipment Co. (the "Company") with the retention of
qualified, competent persons to serve as directors, committee members and
officers of the Company and to encourage such persons to exercise and fulfill
their duties independently in the best interests of the Company and its
stockholders and without untoward concern that the Company's prompt performance
of the assurances intended to be afforded to the Indemnitee under the foregoing
Indemnification Agreement dated January 23, 1997, as amended and restated as of
April 3, 2003, will be dependent upon which person or persons may from time to
time be in a position to control the Company's positions or interpretations
regarding such Agreement, the Company has amended and restated such Agreement
seeking to clarify and provide more objective provisions for the assurances and
benefits for _____________as the Indemnitee under such Agreement.
To further such intent of the Company and to further induce the Indemnitee
to serve or continue to serve and acknowledging and understanding that the
Indemnitee in so serving is relying upon this Guarantee, XXXXXX X. XXXXXX
("Xxxxxx") hereby irrevocably and unconditionally guarantees the prompt
performance of all of the payment obligations of the Company, when due, under
the foregoing Indemnification Agreement, including as such may be modified or
amended by the Company and the Indemnitee, or provisions thereof waived by the
Company, from time to time with or without notice to Xxxxxx. Xxxxxx agrees and
the Indemnitee hereby acknowledges that the Indemnitee may seek enforcement of
this Guarantee from Xxxxxx only after the Indemnitee has made a demand upon the
Company for performance that has not been promptly fulfilled by the Company, but
the Indemnitee shall not be required first to exhaust all remedies against the
Company before seeking enforcement of this Guarantee, and the reasonable
out-of-pocket costs and expenses, including attorney retainers, fees and
expenses, incurred by the Indemnitee (whether or not by then paid) in seeking
enforcement of and collection upon this Guarantee shall be the responsibility
of, and upon demand from the Indemnitee promptly paid by, Xxxxxx.
In the event of any payment to the Indemnitee by Xxxxxx under this
Guarantee, Xxxxxx shall be subrogated to the extent of such payment to all of
the rights of recovery of the Indemnitee with respect thereto against the
Company, and the Indemnitee will, at Xxxxxx'x request and expense, execute
appropriate papers and take reasonable actions necessary to secure such rights
for Xxxxxx, including the execution of such documents necessary to enable Xxxxxx
effectively to bring suit against the Company to enforce such rights. This
Guarantee is for the benefit of the Indemnitee and his successors and assigns
and shall not be discharged or affected by Xxxxxx'x death, incapacity or any
other event (other than full discharge of the obligations under the
Indemnification Agreement), and Xxxxxx hereby agrees that this Guarantee and the
obligations hereunder shall survive any such events and be binding upon him and
his estate, heirs, conservators, guardians, executors, administrators and other
successors or representatives.
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Xxxxxx X. Xxxxxx
Dated: April 3, 2003
13
