Exhibit 9
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of the 1st day of
May, 1995, by and between U.S. Intec, Inc., a Texas corporation (the "Company"),
and (the "Indemnitee").
RECITALS
A. The Indemnitee is presently serving as a director and/or an officer of
the Company and/or, at the request of the Company, in an Authorized Capacity (as
defined below) of or for Another Entity (as defined below). The Company desires
the Indemnitee to continue in such capacity. The Company believes that the
Indemnitee's undertaking of such responsibilities is important to the Company
and that the protection afforded by this Agreement will enhance the Indemnitee's
ability to discharge such responsibilities under existing circumstances. The
Indemnitee is willing, subject to certain conditions, including, without
limitation, the execution and performance of this Agreement by the Company and
the Company's agreement to provide the Indemnitee at all times the broadest and
most favorable (to Indemnitee) possible indemnification permitted by applicable
law (whether by legislative action or judicial decision), to continue in that
capacity.
B. In addition to the indemnification to which the Indemnitee is entitled
under the Articles of Incorporation of the Company, as amended (the "Articles")
and the By-Laws of the Company, as amended (the "By-Laws"), the Company may
obtain (and if obtained, will use reasonable best efforts to keep in force), at
its sole expense, insurance protecting its officers and directors and certain
other persons (including the Indemnitee) against certain losses arising out of
actual or threatened actions, suits or proceedings to which such persons may be
made or threatened to be made parties. The Company, however, may be unable to
obtain such insurance, and, if such insurance is obtained, there can be no
assurance as to the continuation or renewal thereof, or that any such insurance
will provide coverage for losses to which the Indemnitee may be exposed and for
which he or she may be permitted to be indemnified under the Texas Business
Corporation Act (the "TBCA").
Now, therefore, for and in consideration of the premises, the mutual
promises hereinafter set forth, the reliance of the Indemnitee hereon in
continuing to serve the Company or Another Entity in his or her present capacity
and in undertaking to serve the Company or Another Entity in any additional
capacity or capacities, the Company and the Indemnitee agree as follows:
1. Continued Service. The Indemnitee will continue to serve as a
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director and/or an officer of the Company and/or in each such Authorized
Capacity of or for Another Entity in which he or she presently serves, in each
case so long as he or she is duly elected and qualified to serve in such
capacity or until he or she resigns or is removed.
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2. Indemnification. (a) Subject to the limitations set forth in Section
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3, the Company will indemnify the Indemnitee when he or she was or is involved
in any manner (including without limitation as a party, a deponent or a witness)
or is threatened to be made so involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, formal or informal, any appeals therefrom, and any inquiry or
investigation that could lead to such an action, suit or proceeding, (a
"Proceeding"), by reason of the fact that he or she is or was or had agreed to
become a director, officer, employee or agent of the Company, or is or was
serving or had agreed to serve at the request of the Company as a director,
officer, partner, member, trustee, employee or agent (each an "Authorized
Capacity") of another corporation, partnership, joint venture, trust or other
enterprise (each "Another Entity"), or by reason of any action alleged to have
been taken or omitted in such capacity, against any and all costs, charges and
expenses (including attorneys' and others' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him or her in connection
with such Proceeding if the Indemnitee acted in good faith and in a manner that
he or she reasonably believed to be in (in the case of conduct in the
Indemnitee's official capacity as a director) or not opposed to (in the case of
conduct not in the Indemnitee's official capacity as a director) the best
interests of the Company, and, with respect to any criminal Proceeding, the
Indemnitee had no reasonable cause to believe his or her conduct was unlawful.
The termination of any Proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent will not, of itself, adversely
affect the right of the Indemnitee to indemnification or create a presumption
that the Indemnitee did not meet the foregoing standard of conduct to the extent
applicable thereto.
(b) To the extent that the Indemnitee has been successful on the
merits or otherwise, including without limitation the dismissal of a Proceeding
without prejudice, in the defense of any Proceeding or in the defense of any
claim, issue or matter in any such Proceeding, the Company will indemnify him or
her against any and all costs, charges and expenses, including without
limitation attorneys' and others' fees, actually and reasonably incurred by him
or her in connection therewith.
(c) Any indemnification under Section 2(a) will be made by the
Company only as authorized in the specific case upon a determination in
accordance with Section 4 that such indemnification is proper in the
circumstances because the Indemnitee has met the applicable standard of conduct
set forth in Section 2(a) (the "Indemnification Standard"). Such determination
will be made in the manner set forth in Section 4(b).
(d) Any and all costs, charges and expenses, including without
limitation attorneys' and others' fees, actually and reasonably incurred by the
Indemnitee in defending any Proceeding will be paid by the Company as incurred
and in advance of the final disposition of such Proceeding in accordance with
the procedure set forth in Section 4(e); provided, however that the Indemnitee
will not be entitled to advancement of expenses in connection with any
Proceeding initiated by the Indemnitee against the Company (except for any
Proceeding initiated by the Indemnitee pursuant to Section 6) unless the Company
has joined in or consented to the initiation of such Proceeding.
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3. Limitations on Indemnification. (a) The Company is not obligated to
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indemnify the Indemnitee:
(i) if the Indemnitee is found by a court of competent jurisdiction
to be liable for willful or intentional misconduct in the performance of
his or her duty to the Company;
(ii) for any fine or similar governmental imposition which the Company
is prohibited by applicable law from paying and which results from a final,
non-appealable order; or
(iii) in connection with any Proceeding initiated by the
Indemnitee against the Company (except for any Proceeding initiated by the
Indemnitee pursuant to Section 6) unless the Company has joined in or
consented to the initiation of such Proceeding.
(b) In the event that the Indemnitee otherwise meets the
Indemnification Standard but is found (i) to be liable to the corporation as a
result of the conduct that is the subject of a Proceeding, or (ii) to have
improperly received a personal benefit (whether or not the benefit resulted from
conduct in the Indemnitee's official capacity), the Indemnitee is entitled to
indemnification only for reasonable expenses actually incurred by him in
connection with the Proceeding.
4. Certain Procedures Relating to Indemnification and Advancement of
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Expenses. (a) Except as otherwise permitted or required by the TBCA, for
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purposes of pursuing his or her rights to indemnification under Section 2(a), as
the case may be, the Indemnitee may, but shall not be required to, submit to the
Company (to the attention of the Secretary) a statement of request for
indemnification substantially in the form of Exhibit 1 attached hereto (the
"Indemnification Statement") stating that he or she believes that he or she is
entitled to indemnification pursuant to this Agreement, together with such
documents supporting the request as are reasonably available to the Indemnitee
and are reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification hereunder (the "Supporting
Documentation"). Upon receipt of any Indemnification Statement, the Company
will promptly advise the Board of Directors of the Company (the "Board") in
writing that the Indemnitee has requested indemnification.
(b) The Indemnitee's entitlement to indemnification under Section
2(a) will be determined promptly following a claim by the Indemnitee for
indemnification thereunder and in any event (if the Indemnitee submits to the
Company an Indemnification Statement and Supporting Documentation) not more than
30 calendar days after receipt by the Company of such Indemnification Statement
and Supporting Documentation. The Indemnitee's entitlement to indemnification
under Section 2(a) will, subject to the next sentence, be determined in one of
the following ways: (i) by the Board by a majority vote of a quorum consisting
of directors who are not and were not parties to the Proceeding or claim
("Disinterested Directors"), (ii) by majority vote of a committee of the Board
designated by majority vote of the entire Board, consisting solely of two or
more directors who at the time of the vote are not parties to such Proceeding or
claim (a "Disinterested Committee"), if a quorum of the Board consisting of
Disinterested Directors
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cannot be obtained; (iii) by written opinion of independent legal counsel
selected by a majority vote of a quorum consisting of Disinterested Directors
or, if such a quorum or a majority vote thereof cannot be obtained, by a
Disinterested Committee (or, if a quorum consisting of Disinterested Directors
cannot be obtained and a Disinterested Committee cannot be established, by a
majority vote of the entire Board); (iv) by the shareholders of the Company
(excluding shares held by persons who are or were parties to such Proceeding or
claim), if a majority of Disinterested Directors, if they constitute a quorum of
the Board, presents the issue of entitlement to indemnification to the
stockholders of the Company for the determination or (v) as deemed to have been
determined in accordance with Section 4(c). In the event of a Change of Control
(as hereinafter defined), the Indemnitee's entitlement to indemnification under
Section 2(a) will be determined by written opinion of independent legal counsel
selected by the Indemnitee. Independent legal counsel selected as described
above will be a law firm or member of a law firm (x) that neither at the time in
question nor in the five years immediately preceding such time has been retained
to represent (A) the Company (or any of its affiliates) or the Indemnitee in any
matter material to either such party or (B) any other party to the Proceeding or
claim giving rise to a claim for indemnification under this Agreement, (y) that,
under the applicable standards of professional conduct then prevailing under the
law of the State of Texas, would not be precluded from representing either the
Company or the Indemnitee in an action to determine the Indemnitee's rights
under this Agreement and (z) to which the Indemnitee or the Company, acting
therein through a majority of the Disinterested Directors or, if there are no
Disinterested Directors, by a majority of the entire Board, does not reasonably
object. If such independent legal counsel is reasonably objected to by the
Indemnitee or the Company, the Indemnitee shall select another independent legal
counsel subject to similar reasonable objection until independent legal counsel
is agreed upon. The Company will pay the fees and expenses of such independent
legal counsel.
(c) Submission of an Indemnification Statement and Supporting
Documentation to the Company pursuant to Section 4(a) will create a presumption
that the Indemnitee is entitled to indemnification under Section 2(a) and
thereafter the Company will have the burden of proof to overcome that
presumption in reaching a contrary determination. In any event, if the person
or persons empowered under Section 4(b) to determine the Indemnitee's
entitlement to indemnification have not been appointed or have not made a
determination that the Indemnitee is entitled to indemnification within 30
calendar days after receipt by the Company of such Indemnification Statement and
Supporting Documentation, the Indemnitee will be deemed to be entitled to
indemnification unless, within such 30 calendar day period, the person or
persons empowered under Section 4(b) to determine entitlement to indemnification
have made a determination, based upon clear and convincing evidence (sufficient
to rebut the foregoing presumption), that the Indemnitee is not entitled to such
indemnification and the Indemnitee has received written notice within such 30
calendar day period of such determination, which notice (i) discloses with
particularity the evidence in support of such determination, (ii) is sworn to by
all persons who participated in the determination and voted to deny
indemnification and (iii) if such determination was made by independent legal
counsel, includes a copy of the related written opinion of such counsel. The
provisions of this Section 4(c) are intended to be procedural only and will not
affect the right of the Indemnitee to indemnification under this Agreement, and
any determination that the Indemnitee is not entitled to indemnification and any
failure to make the
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payments requested in the Indemnification Statement will be subject to review as
provided in Section 6.
(d) If a determination is made or deemed to have been made pursuant
to this Section 4 that the Indemnitee is entitled to indemnification, the
Company will pay to the Indemnitee the amounts to which the Indemnitee is
entitled within five business days after such determination of entitlement to
indemnification has been made or deemed to have been made.
(e) In order to obtain advancement of expenses pursuant to Section
2(d), the Indemnitee will submit to the Company a written undertaking
substantially in the form of Exhibit 2 hereto, executed personally or on his or
her behalf (the "Undertaking"), stating that (i) he or she believes that he or
she has met the Indemnification Standard and is entitled to indemnification,
(ii) he or she has incurred or will incur actual expenses in defending a
Proceeding and (ii) if and to the extent required by law at the time of such
advance, he or she undertakes to repay such amounts advanced as to which it
ultimately is determined that the Indemnitee is not entitled to indemnification.
Upon receipt of an Undertaking, the Company will within 5 calendar days make
payment of the costs, charges and expenses stated in the Undertaking. No
security will be required in connection with any Undertaking and any Undertaking
will be accepted, and all such payments shall be made, without reference to the
Indemnitee's ability to make repayment.
5. Duplication of Payments. The Company will not be liable under this
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Agreement to make any payment in connection with any claim made against the
Indemnitee to the extent the Indemnitee has actually received payment (under any
insurance policy, the ByLaws, the TBCA or otherwise) of the amount otherwise
payable hereunder.
6. Enforcement. (a) If a claim for indemnification or advancement of
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expenses made to the Company pursuant to Section 4 is not timely paid in full by
the Company as required by Section 4, the Indemnitee will be entitled to seek
judicial enforcement of the Company's obligations to make such payments. If a
determination is made pursuant to Section 4 that the Indemnitee is not entitled
to indemnification or advancement of expenses hereunder, (i) the Indemnitee may
at any time thereafter seek an adjudication of his or her entitlement to such
indemnification or advancement either, at the Indemnitee's sole option, in (A)
an appropriate court of the State of Texas or any other court of competent
jurisdiction or (B) an arbitration to be conducted by a single arbitrator
selected pursuant to the rules of the American Arbitration Association, (ii) any
such judicial proceeding or arbitration will be de novo and the Indemnitee will
not be prejudiced by reason of such adverse determination, and (iii) in any such
judicial proceeding or arbitration the Company will have the burden of proving
that the Indemnitee is not entitled to indemnification or advancement of
expenses under this Agreement.
(b) The Company will be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to the provisions of Section 6(a)
that the procedures and presumptions of this Agreement are not valid, binding
and enforceable and will stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.
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(c) In any action brought under Section 6(a), it will be a defense to
a claim for indemnification pursuant to Section 2(a) (but not an action brought
to enforce a claim pursuant to Section 2(d) for costs, charges and expenses
incurred in defending any Proceeding in advance of its final disposition where
the Undertaking, if any is required, has been tendered to the Company) that the
Indemnitee has not met the Indemnification Standard, but the burden of proving
such defense will be on the Company. Neither the failure of the Company
(including any person or persons empowered under Section 4(b) to determine the
Indemnitee's entitlement to indemnification) to have made a determination prior
to commencement of such action that indemnification of the Indemnitee is proper
in the circumstances because he or she has met the Indemnification Standards nor
an actual determination by the Company (including any person or persons
empowered under Section 4(b) to determine the Indemnitee's entitlement to
indemnification) that the Indemnitee has not met such applicable standard of
conduct will be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct.
(d) It is the intent of the Company that the Indemnitee not be
required to incur the expenses associated with the enforcement of his or her
rights under this Agreement by litigation or other legal action because the cost
and expense thereof would substantially detract from the benefits intended to be
extended to the Indemnitee hereunder. Accordingly, if the Indemnitee reasonably
believes that the Company has failed to comply with any of its obligations under
this Agreement, or if the Company or any other person takes any action to
declare this Agreement void or unenforceable or institutes any action, suit or
proceeding designed (or having the effect of being designed) to deny, or to
recover from, the Indemnitee the benefits intended to be provided to the
Indemnitee hereunder, the Company hereby irrevocably authorizes the Indemnitee
from time to time to retain counsel of his or her choice, at the expense of the
Company as hereafter provided, to represent the Indemnitee in connection with
the initiation or defense of any litigation or other legal action, whether by or
against the Company or any director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction relating to enforcement of this
Agreement. Notwithstanding any existing or prior attorney-client relationship
between the Company and such counsel, the Company irrevocably consents to the
Indemnitee's entering into an attorney-client relationship with such counsel,
and in that connection the Company and the Indemnitee acknowledge that a
confidential relationship will exist between the Indemnitee and such counsel.
Regardless of the outcome thereof, the Company will pay and be solely
responsible for any and all costs, charges and expenses, including without
limitation attorneys' and others' fees, incurred by the Indemnitee (i) as a
result of the Company's failure to perform this Agreement or any provision
hereof or (ii) as a result of the Company or any person contesting the validity
or enforceability of this Agreement or any provision hereof as aforesaid.
7. Liability Insurance and Funding. To the extent the Company maintains
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an insurance policy or policies providing directors' and officers' liability
insurance, the Indemnitee will be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for a director or officer of the Company or a person serving at the
request of the Company in an Authorized Capacity of or for Another Entity, as
the case may be. The Company may, but shall not be required to, create a trust
fund, grant a security interest or use other means (including without limitation
a letter of credit) to ensure the payment of such
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amounts as may be necessary to satisfy its obligations to indemnify and advance
expenses pursuant to this Agreement.
8. Change of Control. (a) If the Company sells or otherwise disposes of
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all or substantially all of its assets or is a constituent corporation in a
consolidation, merger or other business combination transaction or if there is a
Change of Control (as defined below) of the Company, (a) the Company will
require (if it is not the surviving, resulting or acquiring corporation therein)
the surviving, resulting or acquiring corporation expressly to assume the
Company's obligations under this Agreement and to agree to indemnify the
Indemnitee to the full extent provided herein and (b) whether or not the Company
is the resulting, surviving or acquiring corporation in any such transaction (or
Change of Control), the Indemnitee will also stand in the same position under
this Agreement with respect to the resulting, surviving or acquiring corporation
as he or she would have with respect to the Company if the transaction (or
Change of Control) had not occurred.
(b) The Company agrees that if there is a Change of Control of the
Company (other than a Change of Control which has been approved by a majority of
the Company's directors who were directors immediately prior to such Change of
Control) then, with respect to all matters thereafter arising concerning the
rights of the Indemnitee to indemnity payments and advancement of expenses under
this Agreement or any other agreement or provision of the Articles or By-laws
now or hereafter in effect, the Company shall seek legal advice only from
independent legal counsel selected as provided in Section 4(b). Such counsel,
among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee would be permitted to
be indemnified under applicable law. The Company agrees to pay the reasonable
fees of such independent legal counsel 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 hereto.
9. Partial Indemnity. If the Indemnitee is entitled under any provision
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of this Agreement to indemnification by the Company for some or a portion of the
costs, charges, expenses, judgments, fines and amounts paid in settlement of a
Proceeding but not, however, for the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for the portion thereof to which the
Indemnitee is entitled.
10. Subrogation. In the event the Company makes any payment under this
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Agreement, the Company shall be subrogated, to the extent of such payment, to
all rights of recovery of Indemnitee with respect thereto, and Indemnitee shall
execute all agreements, instruments, articles or other documents and do or cause
to be done all things necessary or appropriate to secure such recovery rights to
Company to bring an action or suit to enforce such recovery rights.
11. Nonexclusivity and Severability. (a) The right to indemnification and
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advancement of expenses provided by this Agreement is not exclusive of any other
right to which the Indemnitee may be entitled under the Articles, the By-Laws,
the TBCA, any other statute, insurance policy, agreement, vote of stockholders
or of directors or otherwise, both as to actions in his or her official capacity
and as to actions in another capacity while holding such office, and
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will continue after the Indemnitee has ceased to serve as a director or officer
of the Company or in an Authorized Capacity in or for Another Entity and will
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, to the extent the Indemnitee otherwise would have any
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greater right to indemnification or advancement of expenses under any provision
of the Articles or the By-Laws as in effect on the date hereof, the Indemnitee
will be deemed to have such greater right pursuant to this Agreement; and,
provided further, that, inasmuch as it is the intention of the Company to
provide the Indemnitee with the broadest and most favorable (to the Indemnitee)
possible indemnity permitted by applicable law (whether by legislative action or
judicial decision), to the extent that the TBCA currently or in the future
permits (whether by legislative action or judicial decision) any greater right
to indemnification or advancement of expenses than that provided under this
Agreement as of the date hereof, the Indemnitee will automatically, without the
necessity of any further action by the Company or the Indemnitee, be deemed to
have such greater right pursuant to this Agreement. Similarly, the Indemnitee
shall have the benefit of any future changes to the By-Laws or the Articles
which grant or permit any greater right to indemnification or advancement of
expenses.
(b) The Company will not adopt any amendment to the Articles or
By-Laws the effect of which would be to deny, diminish or encumber the
Indemnitee's rights to indemnity pursuant to the Articles, the By-Laws, the TBCA
or any other applicable law as applied to any act or failure to act occurring in
whole or in part prior to the date upon which any such amendment was approved by
the Board or the stockholders, as the case may be. Notwithstanding the
foregoing, if the Company adopts any amendment to the Articles or By-Laws the
effect of which is to so deny, diminish or encumber the Indemnitee's rights to
such indemnity, such amendment will apply only to acts or failures to act
occurring entirely after the effective date thereof.
(c) If any provision or provisions of this Agreement are held to be
invalid, illegal or unenforceable for any reason whatsoever: (i) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including without limitation all portions of any paragraph of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
are not themselves invalid, illegal or unenforceable) will not in any way be
affected or impaired thereby and (ii) to the fullest extent possible, the
provisions of this Agreement (including without limitation all portions of any
paragraph of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) will be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable. No claim or right to
indemnity or advancement of expenses pursuant to Section 2 hereof shall in any
way affect or limit any right which the Indemnitee may have under the Articles,
the ByLaws, the TBCA, any policy of insurance or otherwise.
12. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
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13. Modification; Survival. This Agreement contains the entire agreement
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of the parties relating to the subject matter hereof; provided, however, that
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this provision shall not be construed to affect the Company's obligations to the
Indemnitee under the Articles or By-Laws. This Agreement may be modified only
by an instrument in writing signed by both parties hereto. The provisions of
this Agreement will survive the death, disability, or incapacity of the
Indemnitee or the termination of the Indemnitee's service as a director or an
officer of the Company or in an Authorized Capacity of or for Another Entity and
will inure to the benefit of the Indemnitee's heirs, executors and
administrators.
14. Certain Terms. (a) For purposes of this Agreement, references to a
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person's capacity as a "director" shall include without limitation such person's
capacity as a member of any committee appointed by the board of which he or she
is a director, references to "Another Entity" will include employee benefit
plans; references to "fines" will include any excise taxes assessed on the
Indemnitee with respect to any employee benefit plan; and references to "serving
at the request of the Company" will include any service in any capacity which
imposes duties on, or involves services by, the Indemnitee with respect to an
employee benefit plan, its participants or beneficiaries; references to Sections
or Exhibits are to Sections or Exhibits of or to this Agreement; references to
the singular will include the plural and vice versa; references to one gender
will include both genders; and if the Indemnitee acted in good faith and in a
manner he or she reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan he or she will be deemed to have
acted in a "manner not opposed to the best interests of the Company" as referred
to herein.
(b) For purposes of this Agreement, a "Change of Control" shall be
deemed to have occurred if (1) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) 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 the ownership of stock of the Company, is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 20% or
more of the total voting power represented by the Company's then outstanding
Voting Securities, (2) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of Directors of the
Company and any new director whose election by the Board of Directors or
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a
majority thereof, or (3) the stockholders 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 stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series of
transactions) all or substantially all the Company's assets.
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(c) For purposes of this Agreement, the term "Voting Securities"
shall mean any securities of the Company which vote generally in the election of
directors.
15. Joint Defense. Notwithstanding anything to the contrary contained
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herein, if (a) the Indemnitee elects to retain counsel in connection with any
Proceeding or claim in respect of which indemnification may be sought by the
Indemnitee against the Company pursuant to this Agreement and (b) any other
director or officer of the Company or person serving at the request of the
Company in an Authorized Capacity of or for Another Entity may also be subject
to liability arising out of such Proceeding or claim and in connection with such
Proceeding or claim seeks indemnification against the Company pursuant to an
agreement similar to this Agreement, the Indemnitee, together with such other
persons, will employ counsel to represent jointly the Indemnitee and such other
persons unless the Indemnitee determines that such joint representation would be
precluded under the applicable standards of professional conduct then prevailing
under the law of the State of Texas, in which case the Indemnitee will notify
the Company (to the attention of the Secretary) thereof and will be entitled to
be represented by separate counsel.
16. Express Negligence Acknowledgement. Without limiting or enlarging the
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scope of the indemnification obligations set forth in this Agreement, the
Indemnitee will be entitled to indemnification hereunder in accordance with the
terms hereof, regardless of whether the claim giving rise to such
indemnification obligation is the result of the sole, concurrent or comparative
negligence, or strict liability, of the Indemnitee.
17. Amendment and Termination. No amendment, modification, termination or
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cancellation of this Agreement shall be effective unless made in writing signed
by both parties hereto.
18. Headings. Section headings of the sections and paragraphs of this
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Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
19. Notices. All notices and other communications hereunder shall be in
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writing and shall be deemed to have been duly given if delivered personally,
mailed by certified mail (return receipt requested) or sent by overnight
delivery service, cable, telegram, facsimile transmission or telex to the
parties at the following addresses or at such other addresses as shall be
specified by the parties by like notice:
(a) if to the Company:
U.S. Intec, Inc.
0000 Xxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
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with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, P.C.
(b) if to the Indemnitee:
At the Indemnitee's last known address
as listed with the Company'
Notice so given shall, in the case of notice so given by mail, be deemed to be
given and received on the fourth calendar day after posting, in the case of
notice so given by overnight delivery service, on the date of actual delivery
and, in the case of notice so given by cable, telegram, facsimile transmission,
telex or personal delivery, on the date of actual transmission or, as the case
may be, personal delivery.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
U.S. INTEC, INC.
By:
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Name:
------------------------------------------
Title:
-----------------------------------------
INDEMNITEE
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Name:
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Exhibit 1
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INDEMNIFICATION STATEMENT
1. This Indemnification Statement is submitted pursuant to the
Indemnification Agreement, dated as of , 1995 (the
-----------------
"Indemnification Agreement"), between U.S. Intec, Inc., a Texas corporation (the
Company"), and the undersigned.
2. I am requesting indemnification in connection with a Proceeding (as
defined in the Indemnification Agreement) or claim in which I was or am involved
or am threatened to be made involved.
3. With respect to all matters related to any such Proceeding or claim, I
believe that I have met the Indemnification Standard (as defined in the
Indemnification Agreement) and am entitled to be indemnified pursuant to the
provisions of the Indemnification Agreement.
4. Without limiting any other rights which I have or may have, I am
requesting indemnification against liabilities which have or may arise out of
--------------------------------------------------------------------------------
5. I have attached such documents supporting this request as are
reasonably available to me and are reasonably necessary to determine whether and
to what extent I am entitled to indemnification under the Indemnification
Agreement.
--------------------------------------------------
Name:
--------------------------------------------
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Exhibit 2
---------
UNDERTAKING
-----------
1. This Undertaking is submitted pursuant to the Indemnification
Agreement, dated as of , 1995 (the "Indemnification Agreement"),
-------------
between U.S. Intec, Inc., a Texas corporation (the "Company"), and the
undersigned.
2. I am requesting advancement of certain costs, charges and expenses
(including attorneys' and others' fees) which I have incurred or will incur in
defending a Proceeding (as defined in the Indemnification Agreement) or in
connection with a claim for which I may be entitled to indemnification pursuant
to the Indemnification Agreement.
3. With respect to all matters related to such Proceeding or claim, I
believe that I have met the Indemnification Standard (as defined in the
Indemnification Agreement) and am entitled to be indemnified pursuant to the
provisions of the Indemnification Agreement.
4. I hereby undertake to repay this advancement of expenses if it is
ultimately determined that I am not entitled to be indemnified by the Company
under the Indemnification Agreement.
5. The costs, charges and expenses for which advancement is requested
are, in general, all expenses related to
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-------------------------------------------------------------------------------
--------------------------------------------------
Name:
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