EXHIBIT 10.8
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made this ____ day of ___________, 19___ between BancTec,
Inc., a Delaware corporation (the "Company"), and _________________________,
("Indemnified Party").
W I T N E S S E T H:
WHEREAS, highly competent persons are becoming more reluctant to serve
publicly-held corporations as directors or in other capacities unless they are
provided with adequate protection through insurance or adequate indemnification
against inordinate risks of claims and actions against them arising out of their
service to and activities on behalf of the corporation; and
WHEREAS, the current impracticability of obtaining adequate insurance and
the uncertainties relating to indemnification have increased the difficulty of
attracting and retaining such persons; and
WHEREAS, the Board of Directors of the Company has determined that the
inability to attract and retain such persons is detrimental to the best
interests of the Company's stockholders and that the Company should act to
assure such protection in the future; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified; and
WHEREAS, Indemnified Party is willing to serve, continue to serve and to
take on additional service for or on behalf of the Company on the condition that
Indemnified Party be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnified Party do hereby covenant and agree
as follows:
1. Indemnification - General.
The Company shall indemnify and advance Expenses (as hereinafter defined)
to Indemnified Party to the fullest extent permitted by applicable law in
effect on the date hereof and to such greater extent as applicable law may
thereafter from time to time permit. The rights of Indemnified Party
provided under the preceding sentence shall include, but shall not be
limited to, the rights set forth in the other Sections of this Agreement.
2. Proceedings Other Than Proceedings by or in the Right of the Company.
Indemnified Party shall be entitled to the indemnification rights provided
in this Section 2 if, by reason of his Corporate Status (as hereinafter
defined), he is, or is threatened to be made, a party to any threatened,
pending or completed Proceeding (as hereinafter defined), other than a
Proceeding by or in the right of the Company. Pursuant to this Section 2,
Indemnified Party shall be indemnified against Expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such Proceeding or any
claim, issue or matter therein, if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of
the Company, and, with respect to any criminal Proceeding, had no
reasonable cause to believe his conduct was unlawful.
3. Proceedings by or in the Right of the Company.
Indemnified Party shall be entitled to the indemnification rights provided
in this Section 3, if, by reason of his Corporate Status, he is, or is
threatened to be made, a party to any threatened, pending or completed
Proceeding brought by or in the right of the Company to procure a judgment
in its favor. Pursuant to this Section 3, Indemnified Party shall be
indemnified against Expenses actually and reasonably incurred by him or on
his behalf in connection with such Proceeding if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Company. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of any
claim, issue or matter in such Proceeding as to which Indemnified Party
shall have been adjudged to be liable to the Company if applicable law
prohibits such indemnification; provided, however, that, if applicable law
so permits, indemnification against Expenses shall nevertheless be made by
the Company, despite such adjudication of liability, if and only to the
extent that the Court of Chancery of the State of Delaware, or the court in
which such Proceedings shall have been brought or is pending, shall
determine.
4. Indemnification of Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnified Party is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or
on his behalf in connection therewith. If Indemnified Party is not wholly
successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in
such Proceeding, the Company shall indemnify Indemnified Party against all
Expenses actually and reasonably incurred by him or on his behalf in
connection with each successful resolved claim, issue or matter. For the
purposes of this Section 4 and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim,
issue or matter.
5. Contribution.
In the event that the indemnity contained in Sections 2, 3 or 4 of this
Agreement is unavailable or insufficient to hold Indemnified Party harmless
in a Proceeding described therein, then in accordance with the provisions
of Section 145(f) of the Delaware General Corporation Law, and separate
from and in addition to the indemnity provided elsewhere herein, the
Company shall contribute to Expenses, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by or on behalf
of Indemnified Party in connection with such Proceeding or any claim, issue
or matter therein, in such proportion as appropriately reflects the
relative benefits received by, and fault of, the Company on the one hand
and Indemnified Party on the other in the acts, transactions or matters to
which the Proceeding relates and other equitable considerations.
6. Procedure for Determination of Entitlement to Indemnification.
(a) To obtain indemnification under this Agreement, Indemnified Party
shall submit to the Company a written request, including such
documentation and information as is reasonably available to
Indemnified Party and is reasonably necessary to determine whether and
to what extent Indemnified Party is entitled to indemnification. The
determination of Indemnified Party's entitlement to indemnification
shall be made not later than 60 days after receipt by the Company of
the written request for indemnification. The Secretary of the Company
shall, promptly upon receipt of such a request for indemnification,
advise the Board of Directors in writing that Indemnified Party has
requested indemnification.
(b) Indemnified Party's entitlement to indemnification under any of
Sections 2, 3, 4 and 5 of this Agreement shall be determined in the
specific case: (i) by the Board of Directors by a majority vote of a
quorum of the Board consisting of Disinterested Directors (as
hereinafter defined); (ii)
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by Independent Counsel (as hereinafter defined), in a written opinion
if a quorum of the Board of Directors consisting of Disinterested
Directors is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs; or, (iii) by the stockholders of
the Company. If, with regard to Section 5 of this Agreement, such a
determination is not permitted by law or if a quorum of Disinterested
Directors so directs, such determination shall be made by the Chancery
Court of the State of Delaware or in the court in which the Proceeding
giving rise to the claim for indemnification is brought.
(c) In the event that the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 6(b) of this
Agreement, the Independent Counsel shall be selected as provided in
this Section 6 (c). The Independent Counsel shall be selected by the
Board of Directors, and the Company shall give written notice to
Indemnified Party advising him of the identity of the Independent
Counsel so selected. Indemnified Party may, within seven (7) days
after receipt of such written notice of selection shall have been
given, deliver to the Company a written objection to such selection.
Such objection may be asserted only on the ground that the Independent
Counsel so selected does not meet the requirements of "Independent
Counsel" as defined in Section 13 of this Agreement, and the objection
shall set forth with particularity the factual basis of such
assertion. If such written objection is made, the Independent Counsel
so selected shall be disqualified from acting as such. If, within
twenty (20) days after submission by Indemnified Party of a written
request for indemnification pursuant to Section 6(a) of this
Agreement, no Independent Counsel shall have been selected, or if
selected shall have been objected to, in accordance with this Section
6(c), either the Company or Indemnified Party may petition the Court
of Chancery of the State of Delaware for the appointment as
Independent Counsel of a person selected by such court or by such
other person as such court shall designate, and the person so
appointed shall act as Independent Counsel under Section 6(b) of this
Agreement, and the Company shall pay all reasonable fees and expenses
incident to the procedures of this Section 6(c), regardless of the
manner in which such Independent Counsel was selected or appointed.
7. Advancement of Expenses.
The Company shall advance all reasonable Expenses incurred by or on behalf
of Indemnified Party in connection with any Proceeding within twenty (20)
days after the receipt by the Company of a statement or statements from
Indemnified Party requesting such advance or advances from time to time,
whether prior to or after final disposition of such Proceeding.
Indemnified Party shall, and hereby undertakes to, repay any Expenses
advanced if it shall ultimately be determined that Indemnified Party is not
entitled to be indemnified against such Expenses.
8. Presumptions and Effect to Certain Proceedings.
The termination of any Proceeding described in any of Sections 2, 3, or 4
of this Agreement, or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this
Agreement) of itself adversely affect the right of Indemnified Party to
indemnification or create a presumption that Indemnified Party did not act
in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Company or, with respect to any
criminal Proceeding, that Indemnified Party had reasonable cause to believe
that his conduct was unlawful.
9. Term of Agreement.
All agreements and obligations of the Company contained herein commence as
of the time the
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Indemnified Party commenced to serve as a director, officer, employee or
agent of the Company (or commenced to serve at the request of the Company
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and shall continue
for so long as Indemnified Party shall so serve or shall be, or could
become, subject to any possible Proceeding in respect of which Indemnified
Party is granted rights of indemnification or advancement of expenses
hereunder.
10. Notification and Defense of Claim.
Promptly after receipt by Indemnified Party of notice of the commencement
of any Proceeding, Indemnified Party 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 to notify the Company will not
relieve it from any liability which it may have to Indemnified Party
otherwise than under this Agreement. With respect to any such Proceeding
as to which Indemnified Party notifies the Company of the commencement
thereof:
(a) The Company will be entitled to participate therein at its own
expense.
(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 Indemnified Party. After notice from the Company to
Indemnified Party of its election so to assume the defense thereof,
the Company will not be liable to Indemnified Party under this
Agreement for any legal or other expenses subsequently incurred by
Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below.
Indemnified Party shall have the right to employ counsel in such
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 Indemnified Party unless (i) the employment of
counsel by Indemnified Party has been authorized by the Company, (ii)
Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between the Company and Indemnified Party in
the conduct of the defense of such Proceeding or (iii) the Company
shall not in fact have employed counsel to assume the defense of such
Proceeding, 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 Proceeding brought by or on
behalf of the Company or as to which Indemnified Party shall have made
the conclusion provided for in (ii) above.
(c) The Company shall not be liable to indemnify Indemnified Party under
this Agreement for any amounts paid in settlement of any Proceeding or
claim effected without its written consent. The Company shall not
settle any Proceeding or claim in any manner which would impose any
penalty or limitation on Indemnified Party without Indemnified Party's
written consent. Neither the Company nor Indemnified Party will
unreasonably withhold their consent to any proposed settlement.
11. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnified Party to continue as a director or officer
of the Company, and acknowledges that Indemnified Party is relying
upon this Agreement in continuing in such capacity.
(b) In the event Indemnified Party is required to bring any action to
enforce rights or to collect moneys due under this Agreement and is
successful in such action, the Company shall reimburse
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Indemnified Party for all of Indemnified Party's reasonable fees and
expenses in bringing and pursuing such action.
12. Non-Exclusivity of Rights.
The rights of indemnification and to receive advancement of Expenses as
provided by this Agreement shall not be deemed exclusive of any other
rights to which Indemnified Party may at any time be entitled under
applicable law, the Certificate of Incorporation, the Bylaws, any
agreement, a vote of stockholders or a resolution of directors, or
otherwise.
13. Definitions.
For purposes of this Agreement:
(a) "Corporate Status" described the status of a person who is or was a
director, officer, employee, agent or fiduciary of the Company or of
any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which such person is or was serving
at the request of the Company.
(b) "Disinterested Director" means a director of the Company who is not
and was not at any time a party to the Proceeding in respect of which
indemnification is sought by Indemnified Party.
(c) "Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements
or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend or
investigation a Proceeding.
(d) "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to
represent: (i) the Company or Indemnified Party in any matter material
to either such party or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" 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 Indemnified Party in an action to determine Indemnified
Party's rights under this Agreement.
(e) "Proceeding" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any
other proceeding whether civil, criminal administrative or
investigative.
14. Separability.
Each of the provisions of this Agreement is a separate and distinct
agreement and independent of the others, so that if any provision hereof
shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
15. Governing Law; Binding Effect; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Delaware.
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(b) This Agreement shall be binding upon Indemnified Party and upon the
Company, its successors and assigns, and shall inure to the benefit of
Indemnified Party, his heirs, personal representatives and assigns and
to the benefit of the Company, its successors and assigns.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
BANCTEC, INC.
_______________________________
Xxxxxxx X. Xxxxx, Xx.
Chairman and Chief Executive Officer
INDEMNIFIED PARTY
_______________________________
(Name)
Address: _______________________________
_______________________________
_______________________________
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