Exhibit 10.11
FORM OF
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as of this __
day of May, 2001, by and between COLONY RIH HOLDINGS, INC., a Delaware
corporation (the "Company"), and ____________ ("Indemnitee").
WHEREAS, the Company and Indemnitee recognize the substantial level of
corporate litigation in general, subjecting officers, directors and key
employees to expensive litigation risks while the availability and coverage of
liability insurance is severely limited;
WHEREAS, the Company desires to attract and retain the services of
highly qualified individuals, such as Indemnitee, to serve as officers,
directors and key employees of the Company and to indemnify its officers,
directors and key employees so as to provide them with the maximum protection
permitted by law.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the Company and Indemnitee hereby agree as
follows:
1. INDEMNIFICATION.
(a) THIRD PARTY PROCEEDINGS. The Company shall indemnify Indemnitee if
Indemnitee is or was a party or is threatened to be made a party to or is
involved in any action, suit or proceeding, whether civil, criminal,
administrative, or investigative, (other than an action by or in the right of
the Company) by reason of the fact that Indemnitee or a person of whom
Indemnitee is the legal representative is or was a director, officer, employee,
or agent of the Company, or any subsidiary of the Company, by reason of any
action or inaction on the part of the Indemnitee while an officer, director, or
key employee, or by reason of the fact that Indemnitee is or was serving at the
request of the Company as an officer, director, or other enterprise, to the
fullest extent permitted by law, against all expenses, liability and loss
(including attorney fees, judgments, fines and amounts paid or to be paid in
settlement) reasonably incurred or suffered by Indemnitee in connection with the
action, suit or proceeding.
The indemnification above provided shall include, but not be limited
to, reimbursement of all fees, including amounts paid in settlement and
attorneys' fees actually and reasonably incurred, in connection with the defense
or settlement of any action or suit if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe Indemnitee's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendre or its equivalent, shall
not, of itself, create a presumption that Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company, and that with respect to
any criminal action or proceeding, he or she had no reasonable cause to believe
that Indemnitee's conduct was unlawful.
(b) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The Company shall
indemnify Indemnitee if Indemnitee was or is a party or is threatened to be made
a party to or is involved in any action, suit, or proceeding by or in the right
of the Company or any subsidiary of the Company to procure a judgment in its
favor by reason of the fact that Indemnitee or a person of employee or agent of
the Company or any subsidiary of the Company, by reason of any action or
inaction on the part of Indemnitee while an officer or director or by reason of
the fact that Indemnitee is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, to the fullest extent permitted by law,
against all expenses, liability and loss (including attorneys fees, judgment,
fines and amounts paid in settlement) in each case, to the extent actually and
reasonably incurred by Indemnitee in connection with the defense or settlement
of such action, suit, or proceeding if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company and its shareholders, except that no indemnification
shall be made in respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged by to be liable to the Company or for amounts paid in
settlement to the Company in the performance of Indemnitee's duty to the Company
and its shareholders unless and only to the extent that the court in which such
action, suit or proceeding is or was pending shall determine upon application
that, in view of all of the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for such expenses as the court deems and then
only to the extent that the court shall determine.
2. EXPENSES; INDEMNIFICATION PROCEDURE.
(a) ADVANCEMENT OF EXPENSES. The Company shall advance all expenses
incurred by Indemnitee in connection with the investigation, defense, settlement
or appeal of any civil or criminal action or proceeding referenced in Section
1(a) or (b) hereof (but not amounts actually paid in settlement of any such
action or proceeding) and to the extent consistent with the Articles of
Incorporation and Bylaws of the Company. Indemnitee hereby undertakes to repay
such amounts advanced if, and to the extent that, it shall ultimately be
determined by a court of competent jurisdiction that Indemnitee is not entitled
to be indemnified by the Company as authorized hereby. The advances to be made
hereunder shall be paid by the Company to Indemnitee within twenty (20) days
following delivery of a written request therefor by Indemnitee to the Company.
(b) NOTICE/COOPERATION BY INDEMNITEE. Indemnitee shall, as a condition
precedent to Indemnitee's right to be indemnified under this Agreement, give the
Company notice in writing as soon as practicable of any claim made against
Indemnitee for which indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to the President/Chief
Executive Officer of the Company, with a cop to the Company's counsel, at the
addresses shown on the signature page of this Agreement (or such other address
as the Company shall designate in writing to Indemnitee). Notice shall be deemed
received three business days after the date postmarked if sent by domestic,
certified or registered mail, properly addressed; otherwise notice shall be
deemed received when such notice shall actually be received by said parties. In
addition, Indemnitee shall give the company such information and cooperation as
it may reasonably require as shall be within Indemnitee's power.
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(c) PROCEDURE. Any indemnification provided for in Section 1 shall be
made no later than forty-five (45) days after receipt of the written request of
Indemnitee. If a claim under this Agreement, under any statute or under any
provision of the Company's Articles of Incorporation or Bylaws providing for
indemnification is not paid in full by the Company within forty-five (45) days
after a written request for payment therefor has first been received by the
company, then Indemnitee may, but need not, at any time thereafter bring an
action against the Company to recover the unpaid amount of the claim and,
subject to Section 14 of this Agreement, Indemnitee shall also be entitled to be
paid for the expenses (including attorneys' fees) of bringing such action. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in connection with any action or proceeding in
advance of its final disposition) that Indemnitee has not met the standards of
conduct which make it permissible under the amount claims, but the burden of
providing such defense shall be on the Company, and Indemnitee shall be entitled
to receive interim payments of expenses pursuant to Subsection 3(a) unless and
until such defense may be finally adjudicated by court order or judgment from
which no further right of appeal exists. It is the parties intention that if the
Company contests Indemnitee's right to indemnification, the question of
Indemnitee's right to indemnification shall be for the court to decide, and
neither the failure of the Company(including its Board of Directors, any
committee or subgroup of its Board of Directors, its independent legal counsel
or its shareholders) to have made a determination that indemnification of
Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct required by the applicable law or this Agreement,
nor an actual determination by the Company (its Board of Directors, any
committee or subgroup, its Board of Directors, its independent legal counsel or
its shareholders) that Indemnitee has not met such applicable standard of
conduct, shall create a presumption that Indemnitee has or has not met the
applicable standard of conduct.
(d) NOTICE TO INSURERS. If, at the time of the receipt of a notice of a
claim pursuant to section 3(b) hereof, the Company has director and officer
liability insurance in effect, then the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or appropriate action to cause such insurers to pay, on
behalf of Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
(e) SELECTION OF COUNSEL. If the Company shall be obligated under
Section 3(a) hereof to pay the expenses of any proceeding against Indemnitee,
then the Company, if appropriate, shall be entitled to assume the defense of
such proceeding, with counsel approved by Indemnitee, which approval shall not
be unreasonably withheld, upon the delivery to Indemnitee of written notice of
its election to do so. After delivery of such notice, approval of such counsel
by Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same proceeding,
provided, that (i) Indemnitee shall have the right to employee Indemnitee's
counsel in any such proceeding at Indemnitee's expense; and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized by the
Company, (B) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and Indemnitee in the conduct of any
such defense or (C) the Company shall not have employed counsel to assume the
defense of such
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proceeding, then the fees and expenses of Indemnitee's counsel shall be at the
expense of the Company.
3. ADDITIONAL INDEMNIFICATION OF RIGHTS; NONEXCLUSIVITY.
(a) SCOPE. Notwithstanding any other provision of this Agreement, the
Company hereby agrees to indemnify Indemnitee to the fullest extent permitted by
law, notwithstanding that such indemnification is not specifically authorized by
the other provisions of this Agreement, the Company's Articles of Incorporation,
the Company's Bylaws or by statute. In the event of any change, after the date
of this Agreement, in any applicable law, statute or rule which expands the
right of a Nevada corporation to indemnify a member of its board of directors or
an officer, such changes shall be, ipso facto, within the purview of
Indemnitee's rights and Company's obligations, under this Agreement. In the
event of any change in any applicable law, statute or rule which narrows the
right of a Nevada corporation to indemnify a member of its Board of Directors or
an officer, such statute or rule to be applied to this Agreement shall have no
effect on this Agreement or the parties, rights an obligations hereunder.
(b) NONEXCLUSIVITY. The indemnification provided by this Agreement
shall not be deemed exclusive of any rights to which Indemnitee may be entitled
under the Company's Articles of Incorporation, its bylaws, any agreement, any
vote of shareholders or disinterested directors, the General Corporation Law of
the State of Nevada (the "NGCL") or otherwise, both as to action in Indemnitee's
official capacity and as to action in another capacity while holding such
office. The indemnification provided under this Agreement shall continue as to
the Indemnitee for any action taken or not taken while serving in an indemnified
capacity even though Indemnitee may have ceased to sere in such capacity at the
time of any action or other covered proceeding.
4. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the expenses, judgments, fines, penalties actually or reasonably
incurred by Indemnitee on investigation, defense, appeal or settlement of any
civil or criminal action or proceeding, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion of
such expenses, judgments, fine or penalties to which Indemnitee is entitled.
5. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge
that in certain instances, U.S. Federal law or applicable public policy may
prohibit the Company from indemnifying its directors and officers under this
Agreement or otherwise. Indemnitee understands and acknowledges that the Company
has undertaken or may be required in the future to undertake with the Securities
and Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company's right under public
policy to indemnify Indemnitee.
6. DIRECTORS' AND OFFICERS' LIABILITY INSURANCE. The Company shall,
from time to time, make the good faith determination whether or not it is
practicable for the Company to obtain and maintain a policy or policies of
insurance with reputable insurance companies providing the officers and
directors of the Company with
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coverage for losses from wrongful acts, or to ensure the Company's performance
of its indemnification obligations under this Agreement. Among other
considerations, the Company will weigh the costs of obtaining such insurance
coverage against the protection afforded by such coverage. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided, if the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient benefit
or in Indemnitee is coverage by similar insurance maintained by a subsidiary or
parent of the Company.
7. SEVERABILITY. Nothing in this Agreement is intended to require or
shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. The Company's inability, pursuant to court order,
to perform its obligations under this Agreement shall not constitute a breach of
this Agreement. The provisions of this Agreement shall be severable as provided
in this Section 7. If this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement shall have been so invalidated and the balance of this
Agreement not so invalidated shall be enforceable in accordance with its terms.
8. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) EXCLUDED ACTS. To indemnify Indemnitee for any acts or omissions or
transactions from which a director or officer may not be relieved of liability
under the NGCL;
(b) CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance expenses to
Indemnitee with respect to proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required under
Section 78.751 of the NGCL or the Articles of Incorporation or Bylaws of the
Company, but such indemnification or advancement of expenses may be provided by
the Company in specific cases if the Board of Directors has approved the
initiation or bringing of such suit;
(c) LACK OF GOOD FAITH. To indemnify Indemnitee for any expenses
incurred by Indemnitee with respect to any proceedings instituted by Indemnitee
to enforce or interpret this Agreement, if a court of competent jurisdiction
determines that each of the material assertions made by Indemnitee in such
proceeding was not made in good faith or was frivolous;
(d) INSURED CLAIMS. To indemnify Indemnitee for expenses or liabilities
of any type whatsoever (including judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement ) which have been paid directly to
Indemnitee by an insurance carrier under a policy of director and officer
liability insurance maintained by the Company; or
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(e) CLAIMS UNDER SECTION 16(b). To indemnify Indemnitee for expenses
and the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute.
9. EFFECTIVENESS OF AGREEMENT. To the extent that the indemnification
permitted under the terms of certain provisions of this Agreement exceeds the
scope of the indemnification provided for in the NGCL, such provisions shall not
be effective unless and until the Company's Articles of Incorporation or Bylaws
authorize such additional rights of indemnification. In all other respects, the
balance of this Agreement shall be effective as of the date set forth on the
first page and may apply to acts or omissions of Indemnitee which occurred prior
to such date if Indemnitee was an officer, director, employee or other agent of
the Company, or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise at the time such act or omission occurred.
10. CONSTRUCTION OF CERTAIN PHRASES.
(a) For purposes of this Agreement, references to "Company" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents, so that if
Indemnitee is or was a director, officer, employee, or agent of such constituent
corporation or is or was serving at the request of such constituent corporation
as a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust or other enterprise, then Indemnitee shall stand in the
same position under the provisions of this Agreement with respect to the
resulting or surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on Indemnitee with respect to an employee benefit plan;
and references to "serving at the request of the Company" shall include any
service as a director, officer, employee or agent of the Company which imposes
duties on, or involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or its beneficiaries.
11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, and all of which shall
constitute one and the same agreement.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by 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 and/or assets of the Company, spouses, heirs, and personal and legal
representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all or
substantially all, or a substantial part of the business or assets of the
Company, by written
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agreement in the form and substance satisfactory to Indemnitee, expressly to
assume and agree to perform this Agreement in the manner and to the same extent
that the Company would be required to perform if no such succession had taken
place. This Agreement shall continue in effect regardless of whether Indemnitee
continues to serve as a director, officer, or agent of the Company or of any
other enterprise at the Company's request.
13. ATTORNEYS FEES. In the event that any action is instituted by the
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action, the court determines that each of the material
assertions made by Indemnitee as a basis for such action were not made in good
faith or were frivolous. In the event of an action instituted by or in the name
of the company under this Agreement or to enforce or interpret any of the terms
of this Agreement, Indemnitee shall be entitled to be paid all court costs and
expenses, including attorneys fees, incurred by Indemnitee in defense of such
action (including with respect to Indemnitee's counterclaims and cross-claims
made in such action), unless as a part of such action the court determines that
each of Indemnitee's material defenses to such action were not made in good
faith or were frivolous. In the event of an action instituted by or in the name
of the company under this Agreement or to enforce or interpret any of the terms
of this agreement, Indemnitee shall be entitled to be paid all court costs and
expenses, including attorneys' fees, incurred by Indemnitee in defense of such
action (including with respect to Indemnitee's counterclaims and cross-claims
made in such action), unless as a part of such action, the court determines that
each of Indemnitee's material defenses to such action were not made in good
faith or were frivolous.
14. NOTICE. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the part addressee on the date of such
receipt, or (ii) if mailed by domestic certified or registered mail with postage
prepaid on the third business day after the date postmarked. Addresses for
notice to either party are as shown on the signature page of this Agreement, or
as subsequently modified by written notice.
15. CONSENT TO JURISDICTION. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction and venue of the courts of the County of
Atlantic, State of New Jersey for all purposes in connection with any action or
proceeding which arises out of or relates to this Agreement.
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16. CHOICE OF LAW. This Agreement shall be governed by and its
provisions construed in accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above-written.
COLONY RIH HOLDINGS, INC.
0000 Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
By: ------------------------------
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Chairman of the Board
With a copy to:
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AGREED TO AND ACCEPTED: INDEMNITEE:
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Address: ---------------------------
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