EXHIBIT 10.11
INDEMNITY AGREEMENT
This Agreement is made as of the _____ day of _______________, ____, by and
between INTERNATIONAL COMPUTEX, INC., a Georgia corporation (the "Corporation")
and _______________ ("Indemnitee"), a Director and/or Officer of the
Corporation.
W I T N E S S E T H:
WHEREAS, it is essential to the Corporation to retain and attract as Directors
and Officers the most capable persons available; and
WHEREAS, service as a director or officer of a corporation, particularly a
corporation the securities of which are or are to be publicly held, may subject
a person to substantial litigation and other risks; and
WHEREAS, it is the express policy of the Corporation to indemnify its
Directors and Officers so as to provide them with the maximum possible
protection permitted by law; and
WHEREAS, Indemnitee does not regard the indemnification provided for under the
Corporation's Articles of Incorporation and By-laws as adequate in the present
circumstances and may not be willing to serve as a Director or Officer without
the provision of further rights to the indemnification, and the Corporation
desires Indemnitee to serve in such capacity.
NOW THEREFORE, for and in consideration of the premises, agreements and
covenants contained herein, the services provided by Indemnitee as Director or
Officer of the Corporation, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to serve as a
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Director and/or Officer of the Corporation until his or her death, or his or her
resignation or removal from office, or the election or appointment and
qualification of his or her successor, whichever shall first occur.
2. Definitions. As used in this Agreement:
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(a) The term "Proceeding" shall include any threatened, pending or completed
investigation, claim, action, suit or proceeding, whether of a civil,
criminal, administrative or investigative nature (including, without
limitation, any action, suit or proceeding by or in the right of the
corporation to procure a judgment in its favor), in which Indemnitee may be
or may have been or may be threatened to be made to become involved in any
manner (including, without limitation, as a party or a witness) by reason
of the fact that Indemnitee is or was a Director, Officer, employee or
agent of the Corporation, or is or was serving at the request of the Board
of Directors or an Officer of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise (whether or not for profit), or by reason of anything
actually or allegedly done or not done by Indemnitee in any such capacity,
whether or not Indemnitee is serving in such capacity at the time any
liability or expense is incurred for which indemnification or reimbursement
can be provided under this Agreement.
(b) The term "Expenses" includes, without limitation, attorneys' fees and
disbursements and all other costs, expenses and obligations actually and
reasonably incurred by Indemnitee in connection with (i) investigating,
defending, being a witness in or otherwise participating in, or preparing
to defend, be a witness in or participate in, any Proceeding, (ii)
establishing a right to indemnification under Paragraph 7 of this Agreement
or (iii) obtaining recovery under any directors' and officers' liability or
similar insurance policy or policies purchased or maintained at any time by
the Corporation.
(c) References to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise tax assessed with respect to
any employee benefit plan; references to "serving at the request of the
Board of Directors or an Officer of the Corporation" shall include any
service as a Director, Officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such Director, Officer,
employee or agent with respect to an employee benefit plan or its
participants or beneficiaries; and a person who acted in good faith and in
a manner he or she reasonably believed to be in the interests of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
Corporation" for purposes of this Agreement.
3. Indemnity in Third-Party Proceedings. The Corporation shall indemnify
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Indemnitee in accordance with the provisions of this Paragraph 3 if Indemnitee
is or was or is threatened to be made to become involved in any manner,
including without limitation as a party or witness, in any Proceeding (other
than a Proceeding by or in the right of the Corporation to procure a judgment in
its favor) against any and all Expenses and any and all judgments, fines and
penalties entered or assessed against Indemnitee, and any and all amounts
reasonably paid or payable in settlement by Indemnitee, in connection with such
Proceeding, but only if Indemnitee acted in good faith and, in the case of
conduct in his or her official capacity, that such conduct was in the best
interests of the Corporation and in all other cases at least not opposed to the
best interests of the Corporation, and Indemnitee in the case of a Proceeding of
a criminal nature, in addition, had no reasonable cause to believe that his or
her conduct was unlawful.
4. Indemnity in Proceedings By or In the Right of the Corporation. The
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Corporation shall indemnify Indemnitee in accordance with the provisions of this
Paragraph 4 if Indemnitee is or was or is threatened to be made to become
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involved in any manner, including without limitation as a party or witness, in
any Proceeding by or in the right of the Corporation, against any and all
Expenses, but only if Indemnitee acted in good faith and, in the case of conduct
in his or her official capacity, that such conduct was in the best interests of
the Corporation and in all other cases at least not opposed to the best
interests of the Corporation, except that no indemnification for Expenses shall
be made under this Paragraph 4 in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged to be liable to the Corporation,
unless and only the extent that any court in which such Proceeding was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for such Expenses as such court shall deem
proper.
5. Indemnification of Expenses of Successful Party; No Adverse Presumption.
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Notwithstanding any other provisions of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise, in defense of any
Proceeding or in defense of any claim, issue or matter therein, including the
dismissal of an action without prejudice, Indemnitee shall be indemnified
against all Expenses incurred in connection therewith. The termination of any
Proceeding by judgment, order of court, settlement or conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a presumption
for purposes of any provision of this Agreement that Indemnitee did not act in
good faith, in a manner which he or she reasonably believed to be in the best
interests of the Corporation, or with respect to any Proceeding of a criminal
nature, that such person had reasonable cause to believe that his or her conduct
was unlawful.
6. Advances of Expenses. The Expenses incurred by Indemnitee in any
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Proceeding shall be paid by the Corporation in advance, promptly upon the
written request of the Indemnitee, if Indemnitee shall undertake to repay such
amount to the extent that it is ultimately determined that Indemnitee is not
entitled to indemnification. No security for the performance of any such
undertaking shall be required and any such undertaking shall be accepted by the
Corporation without regard to the financial capacity of Indemnitee to perform
its obligations thereunder.
7. Right of Indemnitee to Indemnification Upon Application; Procedure Upon
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Application. Without limiting the obligation of the Corporation to promptly
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make payments in respect of Expenses in accordance with Paragraph 6, any
indemnification under Paragraphs 3 and 4 shall be made no later than 45 days
after receipt by the Corporation of the written request of Indemnitee, unless a
determination is made within said 45-day period by (a) the Board of Directors of
the Corporation by a majority vote of a quorum consisting of Directors who are
not and were not parties to the relevant Proceeding, or (b) independent legal
counsel in a written opinion (which counsel shall be appointed if such a quorum
is not obtainable) that the Indemnitee has not met the relevant standards for
indemnification set forth in Paragraphs 3 and 4.
The right to indemnification or advances as provided by this Agreement shall
be enforceable by Indemnitee in any court of competent jurisdiction. The burden
of proving that indemnification is not appropriate shall be on the Corporation.
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Indemnitee's Expenses reasonably incurred in connection with successfully
establishing his or her right to indemnification, in whole or in part, in any
such Proceeding shall also be indemnified by the Corporation.
8. Indemnification Hereunder Not Exclusive. The indemnification provided by
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this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under the General Business Corporation Code of the
State of Georgia (the "Corporate Code"), the Articles of Incorporation or By-
laws of the Corporation, any other agreement, any vote of stockholders or
disinterested Directors, or otherwise, either as to action in his or her
official capacity or as to action in any other capacity. To the extent that
Indemnitee otherwise would have any greater right to indemnification under any
provision of the Corporate Code or the Articles of Incorporation or By-laws of
the Corporation as in effect on the date hereof, Indemnitee will be deemed to
have such greater right hereunder, and, to the extent that any change is made to
the Corporate Code (whether by legislative action or judicial decision) or the
Articles of Incorporation or the By-laws of the Corporation, which permits any
greater right to indemnification than that provided under this Agreement as of
the date hereof, Indemnitee will be deemed to have such greater right
thereunder. The Corporation will not adopt any amendment to the Articles of
Incorporation or By-laws of the Corporation, the effect of which would be to
deny, diminish or encumber Indemnitee's right to indemnification under the
Corporate Code, the Articles of Incorporation or the By-laws of the Corporation
or otherwise as applied to anything actually or allegedly done or failed to be
done in whole or in part prior to the date upon which the amendment was approved
by the Corporation's Board of Directors, its stockholders or both, as the case
may be.
The rights to indemnification and advancement of expenses under this Agreement
shall continue as to Indemnitee even though he or she may have ceased to be a
Director and/or Officer, or to serve in any capacity for or on behalf of the
Corporation or any other enterprise, and shall inure to the benefit of the
heirs, executors, administrators or estate of Indemnitee.
9. Partial Indemnification. In the event that Indemnitee is entitled under
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any provision of this Agreement to indemnification by the Corporation for a
portion but less than the entire amount of any Expenses, judgments, fines,
penalties or amounts paid or payable in settlement, the Corporation shall fully
indemnify Indemnitee in accordance with the applicable provisions of this
Agreement for such portion of such Expenses, judgments, fines penalties or
amounts paid in settlement.
10. Liability Insurance and Funding. To the extent the Corporation purchases
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or maintains any insurance policy or policies providing directors' and officers'
liability or similar 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 Director or Officer of the Corporation. Indemnitee's
Expenses in connection with successfully obtaining any recovery under any such
directors' and officers' liability insurance or similar policy shall also be
indemnified by the Corporation. The Corporation may, but shall not be required
to, create a trust fund, grant a security interest or use other means (including
without limitation procuring one or more letters of credit) to ensure the
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payment of such amounts as may be necessary to satisfy its obligations to
provide indemnification and advance Expenses pursuant to this Agreement.
11. Subrogation. In the event that the Corporation provides any
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indemnification or makes any payment to Indemnitee in respect of any matter in
respect of which indemnification or the advancement of expenses is provided for
herein (regardless of whether such indemnification or payment is provided or
made under the provisions of this Agreement, the Corporate Code, the Articles of
Incorporation or By-laws of the Corporation or otherwise), the Corporation shall
be subrogated to the extent of such indemnification or other payment to all of
the related rights of recovery of Indemnitee against other persons or entities.
Indemnitee shall execute all papers reasonably required and shall do everything
that may be reasonably necessary to secure such rights and enable the
Corporation effectively to bring suit to enforce such rights (with all of
Indemnitee's reasonable costs and expenses,including attorneys' fees and
disbursements, to be reimbursed by or, at the option of Indemnitee, advanced by
the Corporation).
12. No Duplication of Payments. The Corporation shall not be obligated under
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this Agreement to provide any indemnification or make any payment to which
Indemnitee is otherwise entitled hereunder to the extent, but only to the
extent, that such indemnification or payment hereunder would be duplicative of
any amount actually received by Indemnitee pursuant to any insurance policy, the
Corporate Code, the Articles of Incorporation or the By-laws of the Corporation
or otherwise.
13. Saving Clause. If any provision of this Agreement or the application of
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any provision hereof to any circumstance is held illegal, invalid or otherwise
unenforceable, the remainder of this Agreement and the application of such
provision to any other circumstance shall not be affected, and the provision so
held to be illegal, invalid or otherwise unenforceable shall be reformed to the
extent (but only to the extent) necessary to make it legal, valid and
enforceable.
14. Notice. Indemnitee shall give to the Corporation notice in writing as
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soon as practicable of any claim made against him or her for which
indemnification will or could be sought under this Agreement; provided, however,
that any failure to give such notice to the Corporation will relieve the
Corporation from its obligations hereunder only if, and to the extent that, such
failure results in the forfeiture of substantial rights and defenses. Notice to
the Corporation shall be directed to the Corporation (to the attention of the
Chief Executive Officer, with a copy to the General Counsel) at its principal
executive office or such other address as the Corporation shall designate in
writing to Indemnitee. Notice shall be deemed received when hand delivered or
dispatched by electronic facsimile transmission (with receipt thereof orally
confirmed), or three calendar days after having been mailed by United States
registered or certified mail, return receipt requested, postage prepaid, or one
business day after having been sent for next-day delivery by a nationally
recognized overnight courier. In addition, Indemnitee shall give the
Corporation such information and cooperation as it may reasonably require and
shall be within Indemnitee's power.
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15. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute one and the same instrument.
16. Applicable Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Georgia, without giving effect to the
principles of conflicts of law thereof.
17. Successors. This Agreement shall be binding upon the Corporation and its
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successors, including without limitation any person acquiring directly or
indirectly all or substantially all of the business or assets of the Corporation
whether by purchase, merger, consolidation, reorganization or otherwise (and
such successor will thereafter be deemed the "Corporation" for purposes of this
Agreement), but will not otherwise be assignable, transferable or delegatable by
the Corporation. The Corporation shall require any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization or otherwise) to
all or substantially all of the business or assets of the Corporation, to assume
and agree in writing to perform this Agreement, expressly for the benefit of
Indemnitee, in the same manner and to the same extent the Corporation would be
required to perform if no such succession had taken place.
18. Entire Agreement. This Agreement constitutes the entire agreement of the
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Corporation and Indemnitee and supersedes all prior contracts, agreements,
arrangements, communications, discussions and representations, whether oral or
written, with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date and year first above written.
INTERNATIONAL COMPUTEX, INC.
By:____________________________________
Title:__________________________________
INDEMNITEE:
_______________________________________
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