INDEMNIFICATION AGREEMENT
EXHIBIT 10.01
INDEMNIFICATION AGREEMENT between Xxxx X. Xxxxxxxxxx & Son, Inc., a Delaware corporation (the
“Company”), and , an officer and/or director of the Company (the “Indemnitee”),
dated as of , 2009.
WHEREAS, the Indemnitee has agreed to serve as an officer or director of the Company; and
WHEREAS, the Restated Certificate of Incorporation (the “Certificate of Incorporation”) and
the Amended and Restated Bylaws (the “Bylaws”) of the Company provide for certain indemnification
of the officers and directors of the Company;
NOW, THEREFORE, in consideration of the Indemnitee’s agreement to serve and continue serving
as an officer or director of the Company and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company agrees to the covenants set forth
herein for the purpose of further strengthening and securing to the Indemnitee the indemnification
provided by the Certificate of Incorporation and the Bylaws.
Section 1. Certain Definitions. For purposes of this Agreement, the term:
“Act” means the Securities Exchange Act of 1934, as amended.
“Another Enterprise” means any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise of which Indemnitee is or was serving at the request of the
Company as a director, officer, employee or agent.
“Change in Control” means the first date on which one of the following events occurs: (a) the
consummation of a merger or consolidation of the Company with or into another entity or any other
corporate reorganization, if more than 50% of the combined voting power of the continuing or
surviving entity’s securities outstanding immediately after such merger, consolidation or other
reorganization is owned by persons who were not stockholders of the Company immediately prior to
such merger, consolidation or other reorganization; (b) the sale, transfer or other disposition of
all or substantially all of the Company’s assets; (c) a change in the composition of the Board of
Directors of the Company, as a result of which fewer than one-half of the directors following such
change in composition of the Board of Directors of the Company are directors who either (i) had
been directors of the Company on the date 24 months prior to the date of the event that may
constitute a Change in Control (the “Original Directors”) or (ii) were elected, or nominated for
election, to the Board of Directors of the Company with the affirmative votes of at least a
majority of the aggregate of (A) the Original Directors who were still in office at the time of the
election or nomination and (B) the directors whose election or nomination was previously approved
pursuant to this clause (ii); (d) any transaction as a result of which any “person” or “group” (as
such terms are used in Section 13(d) and 14(d) of the Act), other than one or more Permitted
Holders, or any group that is controlled by Permitted Holders, is or becomes the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Act), directly or indirectly, of the voting
securities of the Company representing at least 30% of the total voting power of the Company (with
respect to all matters other than the election of directors) represented by the Company’s then
outstanding voting securities; (e) a bankruptcy trustee,
receiver or similar person or entity is appointed for the Company; (f) the Company determines to
liquidate or dissolve; or (g) the Company enters into a plan or agreement for any of the foregoing.
For purposes of clause (d), the term “transaction” shall include any conversion of the Company’s
Class A Common Stock, $.01 par value per share (“Class A Stock”) whether or not such conversion
occurs in connection with a sale, transfer or other disposition of such Class A Stock. For
purposes of this definition, (i) the term “person” shall exclude: (A) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or a Subsidiary; and (B) a
corporation owned directly or indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of the Common Stock, par value $.01 per share, of the Company,
and any other shares into which such Common Stock shall thereafter be exchanged by reason of a
recapitalization, merger, consolidation, split-up, combination, exchange of shares or the like (it
being understood that for purposes of subsequently determining whether a Change in Control has
occurred, all references to the “Company” in the definition of Change in Control shall be deemed to
be references to the Company and/or such corporation, as applicable); (ii) the term “group” shall
exclude any group controlled by any person identified in clause (i)(A) above and (iii) the term
“control” shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a person, whether through the ownership of voting
securities, by contract, or otherwise, and the terms “controlling” and “controlled” have meanings
correlative thereto.
“Delaware Law” means: (i) the Delaware General Corporation Law as it exists on the date hereof
or may hereafter be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification and/or advancement rights than the
Delaware General Corporation Law permitted the Company to provide prior to such amendment); (ii)
the law of Delaware, including case law, to the full extent it permits broader indemnification
and/or advancement rights than the Delaware General Corporation Law, as so amended; and (iii) any
other law which may be applicable, including but not limited to federal law, but only to the extent
such other law permits the Company to provide broader indemnification and/or advancement rights
than the Delaware General Corporation Law and the law of Delaware.
“Expenses” means all expenses, liabilities and losses (including, without limitation,
attorneys’ fees, retainers, expert and witness fees, expenses of investigation and preparation,
disbursements and expenses of counsel, judgments, fines, ERISA or other excise taxes or penalties
and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by the
Indemnitee or on Indemnitee’s behalf in connection with a Proceeding.
“Independent Legal Counsel” means a nationally recognized law firm that is experienced in
matters of corporate law and neither presently is, nor in the past five years has been, retained to
represent: (i) the Company or 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 legal counsel” shall not include any person
who, under the applicable standards of professional conduct then prevailing, would have a conflict
of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s
rights under this Agreement.
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“Permitted Holder” means: (a) Xxxxxx X. Xxxxxxxxxx, Xxxxxxx X. Xxxxxxxxx, a spouse of Xxxxxx
X. Xxxxxxxxxx, a spouse of Xxxxxxx X. Xxxxxxxxx, any lineal descendant of Xxxxxx X. Xxxxxxxxxx or
any lineal descendant of Xxxxxxx X. Xxxxxxxxx (collectively referred to as the “Family Members”),
(b) a legal representative of a deceased or disabled Family Member’s estate, provided that such
legal representative is a Family Member, (c) a trustee of any trust of which all the beneficiaries
(and any donees and appointees of any powers of appointment held thereunder) are Family Members and
the trustee of which is a Family Member, (d) a custodian under the Uniform Gifts to Minors Act or
Uniform Transfers to Minors Act for the exclusive benefit of a Family Member, provided that such
custodian is a Family Member, (e) any corporation, partnership or other entity, provided that at
least 75% of the equity interests in such entity (by vote and by value) are owned, either directly
or indirectly, in the aggregate by Family Members, (f) any bank or other financial institution,
solely as a bona fide pledgee of shares of Class A Stock by the owner thereof as collateral
security for indebtedness due to the pledgee or (g) any employee benefit plan, or trust or account
held thereunder, or any savings or retirement account (including an individual retirement account),
held for the exclusive benefit of a Family Member.
“Proceeding” means any threatened, pending, actual or completed action, suit, inquiry or
proceeding, whether civil, criminal, administrative or investigative, whether public or private,
whether or not occurring before or after the date of this Agreement and, subject to Section 3
below, including any such threatened, pending, actual or completed action, suit, inquiry or
proceeding by or in the right of the Company.
“Subsidiary” means a corporation of which at least 50% of the total combined voting power of
all classes of stock is owned by the Company either directly or through one or more Subsidiaries.
Section 2. Indemnification. In the event that the Indemnitee was or is made a party or is
threatened to be made a party to or is involved (including, without limitation, as a witness) in
any Proceeding by reason of the fact that the Indemnitee or a person of whom the Indemnitee is the
legal representative of is or was a director or officer of the Company (whether before or after the
date hereof) or, while serving as a director or officer of the Company, is or was serving as a
director or officer of Another Enterprise (whether before or after the date hereof) and, in either
case, whether the basis of such Proceeding is alleged action in an official capacity as a director
or officer or in any other capacity while serving as a director or officer, the Company shall
indemnify and hold harmless Indemnitee to the fullest extent authorized by Delaware Law against all
Expenses; provided, however, that except as provided in Section 6 of this Agreement
with respect to a suit seeking to enforce rights to indemnification and advancement, the Company
shall indemnify the Indemnitee in connection with a Proceeding (or claim or part thereof) initiated
or commenced by the Indemnitee only if the initiation or commencement of such Proceeding (or claim
or part thereof) was authorized in the specific case by the Board of Directors of the Company.
Section 3. Proceedings By or In the Right of the Company. With respect to a Proceeding by or
in the right of the Company, only, no indemnification shall be made in respect to any claim, issue
or matter in such Proceeding as to which Indemnitee shall have been ultimately adjudged liable to
the Company (after giving effect to the Company’s Certificate of Incorporation and Section
102(b)(7) of the Delaware General Corporation Law) if such
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indemnification is prohibited by Delaware Law unless and to the extent that the Court of
Chancery of the State of Delaware, or the court in which the Proceeding shall have been brought or
is pending, determines that such indemnification may be made.
Section 4. Presumptions. In the event that, under Delaware Law, the entitlement of Indemnitee
to be indemnified hereunder shall depend upon whether Indemnitee shall have acted in good faith and
in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company or Another Enterprise, as applicable, and with respect to criminal Proceedings, had no
reasonable cause to believe Indemnitee’s conduct was unlawful, or shall have acted in accordance
with some other defined standard of conduct, or whether fees and disbursements of counsel and other
costs and amounts are reasonable, the burden of proof of establishing that Indemnitee has not acted
in accordance with such standard and that such costs and amounts are unreasonable shall rest with
the Company, and Indemnitee shall be conclusively presumed to have acted in accordance with such
standard, such costs and amounts shall be conclusively presumed to be reasonable and Indemnitee
shall be entitled to indemnification unless, and only unless, based upon clear and convincing
evidence, it shall be determined by a court of competent jurisdiction (after exhaustion or
expiration of the time for filing of all appeals) that Indemnitee has not met such standard or,
with respect to the amount of indemnification, that such costs and amounts are not reasonable (in
which case Indemnitee shall be indemnified to the extent such costs and amounts are determined by
such court to be reasonable).
In addition, and without in any way limiting the provisions of this Section 4, Indemnitee
shall be deemed to have acted in good faith and in a manner Indemnitee reasonably believed to be in
or not opposed to the best interests of the Company or Another Enterprise, as applicable, or, with
respect to any criminal Proceeding to have had no reasonable cause to believe Indemnitee’s conduct
was unlawful, if Indemnitee’s action is based on (i) the records or books of account of the Company
or Another Enterprise, (ii) information supplied to Indemnitee by the officers of the Company or
Another Enterprise in the course of their duties, (iii) the advice of legal counsel for the Company
or Another Enterprise or (iv) information or records given or reports made to the Company or
Another Enterprise by an independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Company or Another Enterprise.
The provisions of this Section 4 shall not be deemed to be exclusive or to limit in any way
the circumstances in which a person may be deemed to have met the applicable standard of conduct,
if applicable, under Delaware Law.
Section 5. Indemnification When Wholly or Partly Successful. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is a party to and is successful, on the
merits or otherwise, in any Proceeding, Indemnitee shall be indemnified against all Expenses. If
Indemnitee is not wholly successful in a 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 shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee and on
Indemnitee’s behalf in connection with each successfully resolved claim, issue or matter. All
Expenses shall be conclusively presumed to be have been incurred with respect to successfully
resolved claims, issues and matters unless, and only unless, based upon clear and convincing
evidence (with the burden of proof being on the
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Company), it shall be determined by a court of competent jurisdiction (after exhaustion or
expiration of the time for filing of all appeals) that a portion of such Expenses were incurred
with respect to unsuccessfully resolved claims, issues or matters. For purposes of this Section 5
and without limitation, the termination of any claim, issue or matter in any Proceeding by
dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim,
issue or matter.
Section 6. Suit to Recover Indemnification. If a claim under Section 2, Section 10 or Section
15 of this Agreement is not paid in full by or on behalf of the Company within thirty days after a
written claim therefor by the Indemnitee has been received by the Company, the Indemnitee may at
any time thereafter bring suit against the Company to recover the unpaid amount of the claim. It
shall be a defense to any such suit (other than a suit brought to enforce a claim for expenses
incurred in defending any Proceeding in advance of its final disposition where the required
undertaking has been tendered to the Company) that the Indemnitee has not met the standards of
conduct, if applicable, which make it permissible under Delaware Law for the Company to indemnify
the Indemnitee for the amount claimed, but the burden of proving such defense and its applicability
shall be on the Company and may be met only by clear and convincing evidence. Neither the failure
of the Company (including its Board of Directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of such suit that indemnification of the
Indemnitee is proper in the circumstances because the Indemnitee has met the standard of conduct,
if applicable, under Delaware Law, nor an actual determination by the Company (including its Board
of Directors, independent legal counsel or stockholders) that the Indemnitee has not met such
applicable standard of conduct, shall be a defense to the suit or create a presumption that the
Indemnitee has not met the applicable standard of conduct. The expenses incurred by Indemnitee in
bringing such suit (whether or not Indemnitee is successful) shall be paid by the Company unless a
court of competent jurisdiction determines that each of the material assertions made by Indemnitee
in such suit was not made in good faith and was frivolous.
Section 7. Change In Control. Subject to Section 3 above, from and after any Change in
Control of the Company, any determination as to entitlement to indemnification shall be made by
Independent Legal Counsel selected by the Indemnitee and approved by the Board of Directors, which
approval shall not be unreasonably withheld (such Independent Legal Counsel shall be retained by
the Board of Directors on behalf of the Company); provided, however, that
Indemnitee shall reserve the right to have any such determination made by a court;
provided, further, that if the Company is prevented from, unwilling or unable to
retain Independent Legal Counsel, Indemnitee may engage Independent Legal Counsel for such
determination.
Section 8. Rights Not Exclusive; Entire Agreement; Rights Continue. The right to
indemnification and the payment of expenses incurred in defending any Proceeding in advance of its
final disposition conferred in this Agreement shall not be exclusive of, or limit in any manner
whatsoever, any other right which the Indemnitee may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, Bylaws, agreement entered into after the date
hereof, vote of stockholders or disinterested directors or otherwise, both as to action in the
Indemnitee’s official capacity and as to action in another capacity while holding such office.
This Agreement shall supersede any written agreement by and between the Company and Indemnitee
executed prior to the date hereof that relates to the subject matter of
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this Agreement. The indemnification, expense advancement and other rights of Indemnitee
herein shall continue after Indemnitee ceases to be a director or officer.
Section 9. Insurance. In the event that the Company maintains insurance to protect itself and
any director or officer of the Company against any expense, liability or loss, such insurance shall
cover the Indemnitee to at least the same extent as any other director or officer of the Company.
Indemnitee shall have the right to receive a copy of any policy for such insurance upon request.
Section 10. Advancement of Defense Costs. The Company shall also promptly pay Indemnitee the
expenses actually and reasonably incurred in defending any Proceeding in advance of its final
disposition without requiring any preliminary determination of the ultimate entitlement of the
Indemnitee to indemnification; provided, however, the payment of such expenses so
incurred by the Indemnitee in advance of the final disposition of any Proceeding, shall be made
only upon delivery to the Company of an unsecured undertaking by or on behalf of the Indemnitee, to
repay (without interest) all amounts so advanced if it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified under this Agreement or otherwise.
Section 11. Security. To the extent requested by Indemnitee and approved by the Board of
Directors of the Company, the Company may at any time and from time to time provide security to
Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit,
funded trust or other collateral. Any such security, once provided to Indemnitee, may not be
revoked or released without the prior written consent of Indemnitee.
Section 12. 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,
at the Company’s expense, execute all papers required and take all action necessary to secure such
rights, including the execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.
Section 13. No Duplication of Payments. The Company shall not be liable under this Agreement
to make any payment in connection with any Proceeding against Indemnitee to the extent Indemnitee
has otherwise actually received payment (under any insurance policy, contract, agreement, the
Certificate of Incorporation or Bylaws, or otherwise) of the amounts otherwise indemnifiable
hereunder.
Section 14. Binding Effect; Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by each of 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 or assets of the Company), heirs,
executors, administrators and personal legal representatives. The Company shall require and cause
any successor (whether direct or indirect, and whether by purchase, merger, consolidation or
otherwise) to all, substantially all, or a substantial part, of the business or assets of the
Company, by written agreement in form and substance reasonably satisfactory to Indemnitee,
expressly 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.
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Section 15. Contribution. If the indemnification provided in Section 2 and the advancement
provided in Section 10 should under Delaware Law be unenforceable or insufficient to hold
Indemnitee harmless in respect of any and all Expenses with respect to any Proceeding, then the
Company shall, subject to the provisions of this Section 15 and for purposes of this Section 15
only, upon written notice from Indemnitee, be treated as if it were a party who is or was
threatened to be made a party to such Proceeding (if not already a party), and the Company shall
contribute to Indemnitee the amount of Expenses incurred by Indemnitee in such proportion as is
appropriate to reflect the relative benefits accruing to the Company and all of its directors,
officers, employees and agents (other than Indemnitee) treated as one entity on the one hand, and
Indemnitee on the other, which arose out of the event(s) underlying such Proceeding, and the
relative fault of the Company and all of its directors, officers, employees and agents (other than
Indemnitee) treated as one entity on the one hand, and Indemnitee on the other, in connection with
such event(s), as well as any other relevant equitable considerations.
No provision of this Section 15 shall: (i) operate to create a right of contribution in favor
of Indemnitee if it is judicially determined that, with respect to any Proceeding, Indemnitee
intentionally caused or contributed to the injury complained of with the actual knowledge that such
injury would occur; or (ii) limit Indemnitee’s rights to indemnification and advancement of
Expenses, whether under this Agreement or otherwise.
The Company hereby waives any right of contribution from Indemnitee for Expenses incurred by
the Company with respect to any Proceeding in which the Company is or is threatened to be made a
party. With respect to any settlement of any Proceeding in which the Company is jointly liable
with Indemnitee (or would be if joined in such Proceeding), the Company will seek to obtain a full
and final release of all claims asserted against Indemnitee as part of a settlement of claims
against the Company, but the Company reserves the right in its sole discretion to enter into a
settlement regarding claims against the Company without successfully obtaining the release
regarding claims against the Indemnitee.
Section 16. Severability; Headings. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid as applied to any fact or circumstance, it shall be modified
by the minimum amount necessary to render it valid, and any such invalidity shall not affect any
other provision, or the same provision as applied to any other fact or circumstance. The headings
used in this Agreement are for convenience only and shall not be construed to limit or define the
scope of any Section or provision.
Section 17. Counterparts; Amendment. This Agreement may be executed in one or more
counterparts, each of which shall be considered one and the same agreement. No amendment to this
Agreement shall be effective unless in writing signed by each of the parties hereto.
* * * * *
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IN WITNESS WHEREOF, the Company and the Indemnitee have executed this Indemnification
Agreement in duplicate on the day and year first above written.
| XXXX X. XXXXXXXXXX & SON, INC. | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| INDEMNITEE: | ||||||||
| Name: | ||||||||
Signature Page to Indemnification Agreement
