Exhibit 10(k)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, made and entered into this _____ day of
________ , 198_ ("Agreement"), by and between POTLATCH CORPORATION, a Delaware
Company ("Company"), and ______________________________ (the "Officer"),
W I T N E S S E T H:
Whereas it has been the practice of this Company to provide officers with
adequate protection through insurance or indemnification against inordinate
risks of claims and actions against them arising out of their service to
and activities on behalf of the Company; and
Whereas the current difficulty of obtaining significant amounts of
insurance at reasonable premiums and the uncertainties relating to statutory
indemnification have increased the difficulty of adequately protecting
such persons; and
Whereas the Board of Directors of the Company (the "Board") has determined
that the inability to so protect such persons is detrimental to the best
interests of the Company's stockholders and that the Company should act
to assure such persons that there will be increased certainty of such
protection in the future:
Now, Therefore, in consideration of the premises and the covenants in
this Agreement, and intending to be legally bound, the Company and Officer do
hereby covenant and agree as follows:
Section 1. Services by Officer. Officer agrees to serve as an officer so
long as he is duly elected by the Board or appointed by the Chairman of the
Board and until such time as he resigns or is relieved of his responsibilities.
Officer may at any time and for any reason resign from such position or be
relieved of his responsibilities (subject to any other contractual obligation
or other obligation imposed by operation of law), in which event the Company
shall have no obligation under this Agreement to continue Officer in any such
position.
Section 2. Amendment of Certificate of Incorporation. The Company shall
use its best efforts to amend the Restated Certificate of Incorporation of the
Company to contain in substance the following provisions:
A. A director of the corporation shall not be liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director
except for liability which, by express provision of the General Corporation Law
of Delaware as in effect from time to time (hereinafter the "Delaware Law"),
cannot be eliminated.
B. (i) The corporation shall, to the fullest extent permitted by Delaware
Law, indemnify any person (the "Indemnitee") who is or was involved in
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any manner (including, without limitation, as a party or a witness) in any
threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative
(including without limitation, any action, suit or proceeding brought by or
in the right of the corporation to procure a judgment in its favor) (a
"Proceeding") by reason of the fact that Indemnitee is or was a director,
officer or employee of the corporation, or is or was serving another entity
in such capacity at the request of the corporation, against all expenses
and liabilities actually and reasonably incurred by Indemnitee in connection
with such Proceeding.
(ii) The right to indemnification conferred by this Article shall be
presumed to have been relied upon by the Indemnitee and shall be enforceable
as a contract right. The corporation may enter into contracts to provide
individual Indemnitees with specific rights of indemnification to the fullest
extent permitted by Delaware Law and may create trust funds, grant security
interests, obtain letters of credit or use other means to ensure the payment
of such amounts as may be necessary to effect the rights provided in this
Article or in any such contract.
(iii) Upon making a request for indemnification, Indemnitee shall be
presumed to be entitled to indemnification under this Article and the
corporation shall have the burden of proof to overcome that presumption in
reaching any contrary determination. Such indemnification shall include the
right to receive payment in advance of any expenses incurred by the
Indemnitee in connection with any Proceeding, consistent with the provisions
of Delaware Law.
C. Any repeal or modification of the foregoing provisions of this Article
shall not adversely affect any right or protection of any director or any
Indemnitee existing at the time of such repeal or modification.
D. The amendment or repeal of this Article shall require the approval of
the holders of shares representing at least eighty percent (80%) of the shares
of the corporation entitled to vote in the election of directors, voting as
one class.
Section 3. Indemnification. The Company shall indemnify Officer to the
fullest extent permitted by applicable law or the Restated Certificate of
Incorporation of the Company in effect on the date hereof or as such laws
or Restated Certificate of Incorporation may from time to time be amended (but,
in the case of any such amendment, only to the extent such amendment permits
the Company to provide broader indemnification rights than the law or Restated
Certificate of Incorporation permitted the Company to provide before
such
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amendment). The right to indemnification conferred in the Restated Certificate
of Incorporation shall be presumed to have been relied upon by Officer in
serving or continuing to serve the Company and shall be enforceable as a
contract right. Without in any way diminishing the scope of the indemnification
provided by this Section 3, the Company will indemnify Officer if and whenever
he is or was a party or is threatened to be made a party to any Proceeding,
including without limitation any such Proceeding brought by or in the
right of the Company, by reason of the fact that he is or was an Agent or by
reason of anything done or not done by him in such capacity, against Expenses
and Liabilities actually and reasonably incurred by Officer or on his behalf in
connection with the investigation, defense, settlement or appeal of such
Proceeding. No initial finding by the Board, its counsel, Independent Counsel,
arbitrators or the stockholders shall be effective to deprive Officer of the
protection of this indemnity, nor shall a court to which Officer may apply for
enforcement of this indemnity give any weight to any such adverse finding in
deciding any issue before it, as it is intended that Officer shall be paid
promptly by the Company all amounts necessary to effectuate the foregoing
indemnity in full. In addition to, and not as a limitation of, the foregoing,
the rights of indemnification of Officer provided under this Agreement shall
include those rights set forth in Sections 4, 7 and 8 below.
Section 4. Advancement of Expenses and Costs; Letter of Credit.
(a) Advances. All reasonable Expenses incurred by or on behalf of Officer
shall be advanced by the Company to Officer within 20 days after the receipt by
the Company of a written request for an advance or advances of Expenses from
time to time, whether prior to or after final disposition of a Proceeding
(unless there has been a final determination that Officer is not entitled to be
indemnified for such Expenses), including without limitation any Proceeding
brought by or in the right of the Company. Officer's entitlement to advancement
of Expenses shall include those incurred in connection with any Proceeding by
Officer seeking an adjudication or award in arbitration pursuant to this
Agreement. The requests shall reasonably evidence the Expenses incurred by
Officer in connection therewith. If required by law at the time of such
advance, Officer hereby undertakes to repay the amounts advanced if it
shall ultimately be determined that Officer is not entitled to be indemnified
pursuant to the terms of this Agreement.
(b) Letter of Credit. In order to secure the obligations of the Company to
indemnify Officer under Section 3 hereof and to advance to Officer certain
amounts under Section 4(a) hereof, the Company shall obtain upon the occurrence
of any Triggering Event, an irrevocable standby letter of credit naming Officer
as the sole beneficiary, in an appropriate amount not less than $500,000,
issued by a financial institution having assets in excess of $100 million and
containing terms and conditions reasonably acceptable to Officer (the "Letter
of Credit"). The Letter of Credit shall provide that Officer may from time to
time draw certain
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amounts thereunder, upon the presentation to the issuer thereof of a
certificate executed by Officer certifying (i) that Officer has made demand
upon the Company for an amount not less than the amount he is drawing upon
under the Letter of Credit and that the Company has refused to provide Officer
with such amount and (ii) that Officer believes that he is entitled under the
terms of this Agreement to the amount which he is drawing upon under the Letter
of Credit.
(c) Term of Letter of Credit. Once the Company has obtained the Letter of
Credit required by Section 4(b) hereof, the Company shall maintain and renew
the Letter of Credit or a substitute letter of credit meeting the criteria of
Section 4(b) hereof during the term of this Agreement in a manner such that the
Letter of Credit shall have an initial term of five years, be renewed for
successive five-year terms, and shall always have at least one year of its term
remaining.
Section 5. Procedure for Determination of Entitlement to Indemnification.
(a) Whenever Officer believes that he is entitled to indemnification
pursuant to this Agreement, Officer shall submit a written request for
indemnification to the Company to the attention of the Chairman of the Board
and Chief Executive Officer or the Vice Chairman of the Board with a copy to the
Secretary. This request shall include documentation or information which is
necessary for the determination of entitlement to indemnification and which is
reasonably available to Officer. Determination of Officer's entitlement to
indemnification shall be made not later than 60 days after any judgment, order,
settlement, dismissal, arbitration award, conviction, acceptance of a plea of
nolo contendere or its equivalent, or other disposition or partial disposition
of any Proceeding or any other event which could enable the Company to
determine Officer's entitlement to indemnification. The Chairman of the Board
and Chief Executive Officer, the Vice Chairman of the Board or the Secretary
shall, promptly upon receipt of Officer's request for indemnification, advise
the Board in writing that Officer has made such request for indemnification.
(b) The Company shall be entitled to select the forum in which Officer's
entitlement to indemnification will be heard unless a Triggering Event has
occurred, in which case Officer shall be entitled to select the forum. The
Company or Officer, as the case may be, shall notify the other party in writing
as to the forum selected, which selection shall be from among the following:
(i) The stockholders of the Company;
(ii) A quorum of the Board consisting of Disinterested Directors;
(iii) Independent Counsel selected by Officer, and reasonably approved by
the Board, which counsel shall make the determination in a written
opinion; or
(iv) A panel of three arbitrators, one of whom
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is selected by the Company, another of whom is selected by Officer and the
last of whom is selected by the first two arbitrators so selected; or if
for any reason three arbitrators are not selected within thirty days after
the appointment of the first arbitrator, then selection of additional
arbitrators to complete the three person panel shall be made by the
American Arbitration Association under its commercial arbitration rules
now in effect.
Section 6. Presumptions and Effect of Certain Proceedings. Upon making a
request for indemnification, Officer shall be presumed to be entitled to
indemnification under this Agreement and the Company shall have the burden of
proof to overcome that presumption in reaching any contrary determination. If
the person or persons so empowered to make the determination shall have failed
to make the requested indemnification within 60 days after any judgment, order,
settlement, dismissal, arbitration award, conviction, acceptance of a plea of
nolo contendere or its equivalent, or other disposition or partial disposition
of any Proceeding or any other event which could enable the Company to
determine Officer's entitlement to indemnification, the requisite determination
of entitlement to indemnification shall be deemed to have been made and Officer
shall be absolutely entitled to indemnification under this Agreement, absent
(i) misrepresentation by Officer of a material fact in the request for
indemnification or (ii) a specific finding that all or any part of such
indemnification is expressly prohibited by law. The termination of any
Proceeding by judgment, order, settlement, arbitration award or conviction, or
upon a plea of nolo contendere or its equivalent, shall not of itself (a)
adversely affect the rights of Officer to indemnification except as may be
provided herein, (b) create a presumption that Officer 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 (c) with respect to any criminal action
or proceeding, create a presumption that Officer had reasonable cause to believe
that his conduct was unlawful.
Section 7. Remedies of Officer in Cases of Determination not to Indemnify
or to Advance Expenses.
(a) In the event that (i) an initial determination is made that Officer is
not entitled to indemnification, (ii) advances are not made pursuant to this
Agreement, (iii) payment has not been timely made following a determination of
entitlement to indemnification pursuant to this Agreement or (iv) Officer
otherwise seeks enforcement of this Agreement, Officer shall be entitled to a
final adjudication in an appropriate court of the State of Delaware of his
entitlement to such indemnification or advance. Alternatively, Officer at his
option may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the commercial arbitration rules of the American Arbitration
Association now in effect, which award is to be made within ninety (90) days
following the filing of the demand for arbitration. The Company shall not
oppose Officer's right
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to seek any such adjudication or arbitration award. In any such proceeding or
arbitration Officer shall be presumed to be entitled to indemnification under
this Agreement and the Company shall have the burden of proof to overcome that
presumption.
(b) In the event an initial determination has been made, in whole or in
part, that Officer is not entitled to indemnification, the decision in the
judicial proceeding or arbitration provided in paragraph (a) of this Section 7
shall be made de novo and Officer shall not be prejudiced by reason of a
determination that he is not entitled to indemnification.
(c) If an initial determination is made or deemed to have been made
pursuant to the terms of this Agreement that Officer is entitled to
indemnification, the Company shall be bound by such determination in the
absence of (i) a misrepresentation of a material fact by Officer or (ii) a
specific finding (which has become final) that all or any part of such
indemnification is expressly prohibited by law.
(d) The Company shall be precluded from asserting that the procedures and
presumptions of this Agreement are not valid, binding and enforceable. The
Company shall stipulate in any such court or before any such arbitrator that
the Company is bound by all the provisions of this Agreement and is precluded
from making any assertion to the contrary.
(e) Expenses incurred by Officer in connection with his request for
indemnification under, seeking enforcement of or to recover damages for breach
of this Agreement shall be borne by the Company.
Section 8. Other Rights to Indemnification. Officer's rights of
indemnification and advancement of expenses provided by this Agreement shall
not be deemed exclusive of any other rights to which Officer may now or in the
future be entitled under applicable law, the Restated Certificate of
Incorporation, By-laws, agreement, vote of stockholders, resolution of
directors, or otherwise.
Section 9. Limitations on Indemnity. The Company shall not be liable under
this Agreement to make any payment to Officer to the extent that Officer has
already been reimbursed pursuant to such D & O Insurance as the Company may
maintain for Officer's benefit. Notwithstanding the availability of such
insurance, Officer may also claim indemnification from the Company pursuant to
this Agreement by assigning to the Company any claims under such insurance to
the extent Officer is paid by the Company.
Section 10. Duration and Scope of Agreement; Binding Effect. This
Agreement shall continue so long as Officer shall be subject to any possible
Proceeding by reason of the fact that he is or was an Agent and shall be
applicable to Proceedings commenced or continued after execution of this
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Agreement, whether arising from acts or omissions occurring before or after
such execution. This Agreement shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of Officer and his spouse,
assigns, heirs, devisees, executors, administrators and other legal
representatives.
Section 11. Severability. If any provision or provisions of this Agreement
(or any portion thereof) shall be held to be invalid, illegal or unenforceable
for any reason whatsoever: (a) the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be affected or
impaired thereby; and (b) to the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the intent manifested by
the provision held invalid, illegal or unenforceable.
Section 12. Identical Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
Section 13. Interpretation of Agreement. It is understood that the parties
hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to Officer to the fullest extent now or hereafter permitted by
law.
Section 14. Headings. The headings of the Sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
Section 15. Definitions. For purposes of this Agreement:
(a) "Agent" shall mean any person who (i) is or was a director, officer or
employee of the Company or a subsidiary of the Company whether serving in such
capacity or as a director, officer, employee, agent, fiduciary or other
official of another entity at the request of, for the convenience of, or to
represent the interests of the Company or a subsidiary of the Company or (ii)
was a director, officer or employee of a corporation which was a predecessor
corporation of the Company or a subsidiary of the Company whether serving in
such capacity or as a director, officer, employee, agent, fiduciary or other
official of another entity at the request of, for the convenience of, or to
represent the interests of such predecessor corporation.
(b) "Disinterested Director" shall mean a director of the Company who is
not or was not a party to the Proceeding in respect of which indemnification is
being sought by Officer.
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(c) "Expenses" shall include all direct and indirect costs (including,
without limitation, attorneys' fees, retainers, court costs, transcripts, fees
of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, all other
disbursements or out-of-pocket expenses and reasonable compensation for time
spent by Officer for which he is otherwise not compensated by the Company or
any third party) actually and reasonably incurred in connection with either the
investigation, defense, settlement or appeal of a Proceeding or establishing or
enforcing a right to indemnification under this Agreement, applicable law or
otherwise; provided, however, that "Expenses" shall not include any judgments,
fines or ERISA excise taxes or penalties.
(d) "Independent Counsel" shall mean a law firm or a member of a law firm
that neither is presently nor in the past five years has been retained to
represent: (i) the Company or Officer in any matter material to either 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 Officer in an action to determine Officer's
right to indemnification under this Agreement.
(e) "Liabilities" shall mean liabilities of any type whatsoever,
including, but not limited to, judgments, fines, ERISA excise taxes and
penalties, and amounts paid in settlement.
(f) "Proceeding" shall mean any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any
other proceeding whether civil, criminal, administrative or investigative.
(g) "Triggering Event" shall mean the acquisition by any person (other
than the Company) of 30% or more of the outstanding shares of common stock of
the Company unless a majority of the entire Board, which shall include the
affirmative vote of at least one director from each class of the Board, shall
have earlier approved such acquisition.
Section 16. Pronouns. Use of the masculine pronoun shall be deemed to
include usage of the feminine pronoun where appropriate.
Section 17. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties to this Agreement. No waiver of any provision of this Agreement
shall be deemed to constitute a waiver of any other provision hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.
Section 18. Notice by Officer and Defense of Claims. Officer agrees
promptly to notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any
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matter which may be subject to indemnification hereunder, whether civil,
criminal, administrative or investigative; but the omission so to notify the
Company will not relieve it from any liability which it may have to Officer if
such omission does not prejudice the Company's rights and if such omission does
prejudice the Company's rights, it will relieve the Company from liability only
to the extent of such prejudice; nor will such omission relieve the Company
from any liability which it may have to Officer otherwise than under this
Agreement. With respect to any Proceeding as to which Officer notifies the
Company of the commencement thereof:
(a) The Company will be entitled to participate therein at its own
expense; and
(b) Except as otherwise provided below, to the extent that it may wish,
the Company jointly with any other indemnifying party similarly notified will
be entitled to assume the defense thereof, with counsel reasonably satisfactory
to Officer. After notice from the Company to Officer of its election so to
assume the defense thereof, the Company will not be liable to Officer under
this Agreement for any Expenses subsequently incurred by Officer in connection
with the defense thereof other than reasonable costs of investigation or as
otherwise provided below. Officer shall have the right to employ his 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 Officer unless (i) the employment of counsel by Officer has been
authorized by the Company, (ii) Officer shall have reasonably concluded that
there may be a conflict of interest between the Company and Officer in the
conduct of the defense of such action or that counsel may not be adequately
representing Officer, (iii) a Triggering Event shall have occurred or (iv) the
Company shall not in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of counsel shall be at the
expense of the Company. The Company shall not be entitled to assume the defense
of any Proceeding as to which Officer shall have made the conclusion provided
for in (ii) above or if an event specified in (iii) above shall have occurred.
(c) The Company shall not be liable to indemnify Officer under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. The Company shall not settle any action or claim
in any manner which would impose any penalty or limitation on Officer without
Officer's written consent. Neither the Company nor Officer will unreasonably
withhold their consent to any proposed settlement.
Section 19. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:
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(a) If to Officer, to:
____________________
____________________
____________________
(b) If to the Company, to:
Potlatch Corporation
X.X. Xxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Chairman of the Board and
Chief Executive Officer
or Vice Chairman of the Board
With a copy to:
Secretary
or to such other address as may have been furnished to Officer by the Company
or to the Company by Officer, as the case may be.
Section 20. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, as applied to contracts between Delaware residents entered
into and to be performed entirely within Delaware.
Section 21. Consent to Jurisdiction. The Company and Officer each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
ATTEST:
POTLATCH CORPORATION
By ______________________ By _________________________
Officer
____________________________
Address: ____________________________
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Schedule A to Exhibit (10)(k)
February 1, 1997
Form of Indemnification Agreement dated as of:
(i) December 11, 1986, with the following officers:
Xxxx X. Xxxxxxxx, Chairman and Chief Executive Officer
X. Xxxxxxxxx Xxxxxx, President and Chief Operating Officer
Xxxxxx X. Xxxxxx, Vice President
(ii) October 1, 1989, with Xxxxxx X. Xxxxxxxx, Senior Vice President
(iii) April 1, 1990, with Xxxxx X. Xxxxxxxx, Vice President
(iv) March 14, 1991, with Xxxxxxx X. Xxxxxxxxx, Group Vice President
(v) March 1, 1992, with Xxxxxx X. Xxxxxxx, Group Vice President
(vi) January 1, 1993, with Xxxxxxx X. Xxxxxxx, Vice President
(vii) April 10, 1995, with Xxxxxx X. Xxxxxxx, Treasurer
(viii) April 10, 1995, with Xxxxxxx X. Xxxxx, Vice President
(ix) June 14, 1995, with Xxxx X. Xxxxx, Vice President and Xxxxx X.
Xxxxxxxx, Secretary
(x) May 29, 1996, with Xxxxx X. Xxxxxx, Vice President
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