Contract
Exhibit
10.11
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0000 Xxxxx
Xxxx,
Xxxxx X
Xxxxxxxx, XX
00000
704.849.0860
Referred
to as “PokerTek”
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Xxxx X
Xxxxxxxx
0000 Xxxxxx Xxxx
Xxxx
Xxxxxxxx, XX
00000
(704)
904-3897
Referred
to as “the Indemnitee”
|
This
INDEMNIFICATION AGREEMENT (the “Agreement”) is effective as of the date of its
execution by and between PokerTek, Inc., a North Carolina corporation (the
“Company”), and Xxxx X Xxxxxxxx, an individual resident of the State of North
Carolina (the “Indemnitee”).
WHEREAS,
the Indemnitee is an officer of the Company; and
WHEREAS,
in recognition of Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service to the Company in
an effective manner and Indemnitee’s reliance on the provisions of the Company’s
Articles of Incorporation and Bylaws (the “charter documents”) limiting
Indemnitee’s liability to the fullest extent permitted by law, and to provide
Indemnitee with specific contractual indemnification against such liability
(regardless of, among other things, any amendment to or revocation of such
charter documents 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 in this Agreement for the indemnification of and the advancing
of expenses to Indemnitee to the full extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained, for the continued coverage of Indemnitee under the
Company’s directors’ and officers’ liability policies.
NOW
THEREFORE, in consideration of the premises and of Indemnitee agreeing to serve
or continuing to serve the Company directly or, at its request, with another
enterprise, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Basic Indemnification
Arrangement. (a) In the event Indemnitee was, is or becomes a party to or
other participant in, or is threatened to be made a party to or other
participant in, a claim by reason of (or arising in part out of) an
Indemnifiable Event (a “Claim”), the Company shall indemnify Indemnitee to the
fullest extent permitted by law as soon as practicable, but in any event no
later than 30 days after written demand is presented to the Company, against any
and all Expenses, judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in
connection therewith) of such Claim and any federal, state, local or foreign
taxes imposed on Indemnitee as a result of the actual or deemed receipt of any
payments under this Agreement. If requested by Indemnitee in writing, the
Company shall advance (within two business days of such written request) any and
all Expenses to Indemnitee (an “Expense Advance”). Notwithstanding anything in
this Agreement to the contrary, and except as provided in Section 3, prior to a
Change in Control, Indemnitee shall not be entitled to indemnification pursuant
to this Agreement in connection with any Claim initiated by Indemnitee against
the Company or any director or officer of the Company unless the Company has
joined in or consented to the initiation of such Claim.
(b)
Notwithstanding the foregoing, (i) the obligations of the Company under Section
1(a) shall be subject to the condition that the Reviewing Party shall not have
determined (in a written opinion, in any case in which the special independent
counsel referred to in Section 2 hereof is involved) that Indemnitee would not
be permitted to be indemnified under applicable law, and (ii) the obligation of
the Company to make an Expense Advance pursuant to Section 1(a) shall be subject
to the condition that, if, when and to the extent the Reviewing Party determines
that Indemnitee would not be permitted to be so indemnified under applicable
law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby
agrees to reimburse the Company) for all such amounts theretofore paid;
provided, however, that if Indemnitee has commenced legal proceedings in a court
of competent jurisdiction to secure a determination that Indemnitee should be
indemnified under applicable law, any determination made by the Reviewing Party
that the Indemnitee would not be permitted to be Indemnified under applicable
law shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expense Advance until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed). Indemnitee’s obligation to reimburse the Company for
Expense Advances shall be unsecured and no interest shall be charged thereon. If
there has not been a Change in Control, the Reviewing Party shall be selected by
the Board of Directors, and if there has been a Change in Control, the Reviewing
Party shall be the special independent counsel referred to in Section 2 hereof.
If there has been no determination by the Reviewing Party or if the Reviewing
Party determines that Indemnitee substantively would not be permitted to be
indemnified in whole or in party under applicable law, Indemnitee shall have the
right to commence litigation in any court having subject matter jurisdiction
thereof and in which venue is proper seeking an initial determination by the
court or challenging any such determination by the Reviewing Party or any aspect
thereof and the Company hereby consents to service of process and to appear in
any such proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and Indemnitee.
2. Change in Control. The Company
agrees that if there is a Change in Control of the Company (other than a Change
in Control which has been approved by a majority of the Company’s Board of
Directors who were directors immediately prior to such Change in Control), then
with respect to all matters thereafter arising concerning the rights of
Indemnitee to indemnity payments and Expense Advances under this Agreement or
any other agreement, bylaw or charter document now or hereafter in effect
relating to Claims for Indemnifiable Events, the Company shall seek legal advice
only from special independent counsel selected by Indemnitee and approved by the
Company (which approval shall not be unreasonably withheld), and who has not
otherwise performed services for the Company within the last two years (other
than in connection with such matters) or for Indemnitee. In the event Indemnitee
and the Company are unable to agree on the selection of the special independent
counsel, such special independent counsel shall be selected by lot from among at
least five law firms having more than fifty attorneys and having a rating of
“av” or better in the then current Xxxxxxxxxx-Xxxxxxx Law Directory. Such
selection shall be made in the presence of Indemnitee (his legal counsel or
either of them, as Indemnitee may elect). Such counsel, among other things,
shall, within 90 days of its retention, render its written opinion to the
Company and Indemnitee as to whether and to what extent Indemnitee would be
permitted to be indemnified under applicable law. The Company agrees to pay the
reasonable fees of the special independent counsel referred to above and to
fully indemnify such counsel against any and all expenses (including attorneys’
fees), claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant thereto.
3. Indemnification for Additional
Expenses. The Company shall indemnify Indemnitee against any and all
expenses (including attorneys’ fees) and, if requested by Indemnitee in writing,
shall (within two business days of such written request) advance such expenses
to Indemnitee, which are incurred by Indemnitee in connection with any Claim
asserted against or action brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Company under this Agreement or any other
agreement, bylaw or charter document now or hereafter in effect relating to
Claims for Indemnifiable Events and/or (ii) recovery under any directors’
and officers’ liability insurance policies maintained by the Company,
regardless of whether Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may
be.
4. Partial Indemnity, Etc. If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company of some or a portion of the Expenses, judgments, fines, penalties
and amounts paid in settlement of a Claim, but not, however, for all of the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding
any other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any or all Claims relating
in whole or in part to an Indemnifiable Event or in defense of any issue or
matter therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith. In connection
with any determination by the Reviewing Party or otherwise as to whether
Indemnitee is entitled to be indemnified hereunder the burden of proof shall be
on the Company to establish that Indemnitee is not so entitled.
5. No Presumption. For purposes
of this Agreement, the termination of any action, suit or proceeding by
judgment, order, settlement (whether with or without court approval) or
conviction, or upon a plea of nolo contendere, or its equivalent, shall not
create a presumption that Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has determined that
indemnification is not permitted by applicable law.
6. Notification and Defense of
Claim. Promptly after receipt by Indemnitee of notice of the commencement
of a Claim which may involve an Indemnifiable Event, Indemnitee will, if a claim
in respect thereof is to be made against the Company under this Agreement,
notify the Company of the commencement thereof, but the omission so to notify
the Company will not relieve it from any liability which it may have to
Indemnitee otherwise than under this Agreement. With respect to any such Claim
as to which Indemnitee notifies the Company of the commencement
thereof:
(a) the
Company will be entitled to participate therein at its own expense;
and
(b)
except as otherwise provided below, to the extent that it may wish, the Company
jointly with any other indemnifying party similarly notified will be entitled to
assume the defense thereof, with counsel satisfactory to Indemnitee. After
notice from the Company to Indemnitee of its election to assume the defense
thereof, the Company will not be liable to Indemnitee under this Agreement for
any legal or other expenses subsequently incurred by Indemnitee in connection
with the defense thereof, other than reasonable costs of investigation or as
otherwise provided below. Indemnitee shall have the right to employ its counsel
in such action, suit or proceeding, but the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof
shall be at the expense of Indemnitee unless (i) the employment of counsel by
Indemnitee has been authorized by the Company, (ii) Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of the defense of such action, or
(iii) the Company shall not in fact have employed counsel to assume the defense
of such action, in each of which cases the fees and expenses of counsel shall be
at the expense of the Company. The Company shall not be entitled to assume the
defense of any claim brought by or on behalf of the Company or as to which the
Indemnitee shall have made the conclusion provided for in (ii) above;
and
(c) the
Company shall not be liable to indemnify the Indemnitee under this Agreement for
any amounts paid in settlement of any action or claim effected without its
written consent. The Company shall not settle any action or claim in any manner
which would impose any penalty or limitation on the Indemnitee without the
Indemnitee’s written consent. Neither the Company nor the Indemnitee will
unreasonably withhold their consent to any proposed settlement.
7. Non-exclusivity, Etc. The
rights of the Indemnitee hereunder shall be in addition to any other rights
Indemnitee may have under the charter documents or the North Carolina Business
Corporation Act or otherwise. To the extent that a change in the North Carolina
Business Corporation Act (whether by statute or judicial decision) or in the
charter documents permits greater indemnification by agreement than would be
afforded currently under the charter documents and this Agreement, it is the
intent of the parties hereto that Indemnitee shall enjoy by this Agreement the
greater benefits so afforded by such change.
8. Liability Insurance. To the
extent the Company maintains an insurance policy or policies providing
directors’ and officers’ liability insurance, Indemnitee shall be covered by
such policy or policies in accordance with its or their terms, to the maximum
extent of the coverage available for any Company director.
9. Certain
Definitions.
(a) Change in Control: shall be
deemed to have occurred if (i) any “person” (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than
a trustee or other fiduciary holding securities under an employee benefit plan
of the Company or a corporation owned directly or indirectly by the stockholders
of the Company in substantially the same proportions as their ownership of stock
of the Company, becomes the “beneficial owner” (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Company representing 50%
or more of the total voting power represented by the Company’s then outstanding
Voting Securities, or (ii) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the Voting Securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the shareholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or substantially all of the
Company’s assets.
(b) Claim: any threatened, pending
or completed action, suit, proceeding or alternative dispute resolution
mechanism, or any inquiry, hearing or investigation whether conducted by the
Company or any other party, whether civil, criminal, administrative,
investigative or other.
(c) Expenses: include attorneys’
fees and all other costs, fees, disbursements, expenses and obligations of any
nature whatsoever paid or incurred in connection with investigating, defending,
being a witness in or participating in (including on appeal), or preparing to
defend, be a witness in or participate in any Claim relating to any
Indemnifiable Event.
(d) Indemnifiable Event: any event
or occurrence (whether before or after the date hereof) related to the fact that
Indemnitee is or was a director, officer, employee, agent or fiduciary for the
Company, or is or was serving at the request of the Company as a director,
officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, or
by reason of anything done or not done by Indemnitee in any such
capacity.
(e) Reviewing Party: (i) the
Company’s Board of Directors (provided that a majority of directors are not
parties to the particular claim for which the Indemnitee is seeking
indemnification) or (ii) any other person or body appointed by the Company’s
Board of Directors, who is not a party to the particular Claim for which
Indemnitee is seeking indemnification, or (iii) if there has been a Change in
Control, the special independent counsel referred to in Section 2
hereof.
(f) Voting Securities: any
securities of the Company which vote generally in the election of
directors.
10. Amendment, Termination and
Waiver. No supplement, modification, amendment or termination of this
Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
11. Subrogation. In the event of
payment under this Agreement, the Company shall be subrogated to the extent of
such payment to all of the rights of recovery of Indemnitee, who shall execute
all papers required and shall do everything that may be necessary to secure such
rights, including the execution of such documents necessary to enable the
Company effectively to bring suit to enforce such rights.
12. No Duplication of Payments.
The Company shall not be liable under this Agreement to make any payment in
connection with any claim made against Indemnitee to the extent Indemnitee has
otherwise actually received payment (under insurance policy, charter documents
or otherwise) of the amounts otherwise indemnifiable hereunder; notwithstanding
the foregoing, any payments actually received by either Indemnitee or any
professional association with which Indemnitee may be affiliated, pursuant to
any insurance policy covering acts or omissions of the Indemnitee effected by
him in any professional capacity shall not be considered to be “duplicative
payments” for purposes of this Section 12.
13. Binding Effect, Etc. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors, 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. This Agreement shall continue in
effect regardless of whether Indemnitee continues to serve as a director (or in
one of the capacities enumerated in Section 9(d) hereof) of the Company or of
any other enterprise at the Company’s request.
14. Severability. The provisions
of this Agreement shall 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 shall remain enforceable to the
fullest extent permitted by law.
15. Governing Law. This Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of North Carolina applicable to contracts made and to be performed in
such state without giving effect to the principles of conflicts of
laws.
Executed
as of this 14th day of July, 2009.
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POKERTEK:
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INDEMNITEE:
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By:
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/s/
Xxxxx X Xxxxxxxx III
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By:
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/s/
Xxxx X Xxxxxxxx
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Print
Name:
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Xxxxx
X Xxxxxxxx III
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Print
Name:
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Xxxx
X Xxxxxxxx
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Title:
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President
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Title:
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Acting
CEO & CFO
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Date:
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7/14/09
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Date:
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7/14/09
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