INDEMNIFICATION AGREEMENT
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AGREEMENT between The Xxxx Corporation, an Ohio corporation (the
"Company"), and J. Xxxxxxxx Xxxxxx (the "Indemnitee").
WHEREAS, it is essential to the Company to retain and attract as directors
the most capable persons available;
WHEREAS, Indemnitee is a director of the Company;
WHEREAS, both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors of public companies
in today's environment;
WHEREAS, basic protection against undue risk of personal liability of
directors heretofore has been provided through insurance coverage providing
reasonable protection at reasonable cost, and Indemnitee has relied on the
availability of such coverage; but as a result of substantial changes in the
marketplace for such insurance it has become increasingly more difficult to
obtain such insurance on terms providing reasonable protection at reasonable
cost;
WHEREAS, the Regulations of the Company and the Ohio General Corporation
Law each provide that the indemnification provided therein shall not be
exclusive;
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's continued service to
the Company in an effective manner, the Company wishes to provide in this
Agreement for the indemnification of and the advancing of expenses to Indemnitee
to the full extent (whether partial or complete) permitted by law and as set
forth in this Agreement, and, to the extent insurance is maintained, for the
continued coverage of Indemnitee under the Company's directors' and officers'
liability insurance policies;
NOW, THEREFORE, in consideration of the premises and of Indemnitee
continuing to serve the Company directly or, at its request, with another
enterprise, and intending to be legally bound hereby, the parties hereto agree
that the Prior Agreement be, and the same hereby is, amended and restated in its
entirety as follows:
1. Certain Definitions.
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(a) Change in Control: shall be deemed to have occurred if (i) any
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"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended), 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 shareholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under said 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 without the prior approval of the Board of Directors, or (ii) during
any period of two consecutive years, individuals who at the beginning of such
period constituted 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 shareholders 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 (iii) the
shareholders 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 shareholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company's assets.
(b) Claim: any threatened, pending or completed action, suit or
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proceeding, or any inquiry or investigation, whether conducted by the Company or
any other party, that Indemnitee in good faith believes might lead to the
institution of any such action, suit or proceeding, whether civil, criminal,
administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs, expenses
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and obligations paid or incurred in connection with investigating, defending,
being a witness in or participating in (including on appeal) or preparing to
defend, be a witness in or participate in any Claim relating to any
Indemnifiable Event (including all interest, assessments and other charges paid
or payable in connection with or in respect of any of the foregoing).
(d) Judgments: include judgments, fines, penalties and amounts paid in
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settlement that are paid or payable in connection with any Claim relating to any
Indemnifiable Event (including all interest, assessments and other charges paid
or payable in connection with or in respect of any of the foregoing).
(e) Indemnifiable Event: any event or occurrence related to the fact
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that Indemnitee is or was a director of the Company, or is or was serving at the
request of the Company as a director, trustee, officer, employee, agent or
representative of another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, or by reason of anything done or not
done by Indemnitee in any such capacity.
(f) Reviewing Party: any appropriate person or body consisting of a
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member or members of the Company's Board of Directors or any other person or any
other person or body appointed by the Board (including the special, independent
counsel referred to in Section 4) who is not a party to the particular Claim for
which Indemnitee is seeking indemnification.
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(g) Voting Securities: any securities of the Company which vote
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generally in the election of directors.
2. Scope of Indemnification.
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(a) Basic Indemnification Arrangement. In the event Indemnitee was, is
or becomes a party to or witness or other participant in, or is threatened to be
made a party to or witness or other participant in, a Claim by reason of (or
arising in part out of), an Indemnifiable Event, the Company shall indemnify
Indemnitee to the fullest extent permitted by law as soon as practicable but in
any event no later than 30 days after written demand is presented to the Company
against any and all Judgments arising from or relating to such Claim.
(b) Expenses. Any and all Expenses and any and all expenses referred
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to in Section 2(c) shall be paid by the Company promptly as they are incurred by
Indemnitee (any such payment of expenses by the Company is hereinafter referred
to as an "Expense Advance"). Indemnitee hereby agrees to repay the amount of
Expenses so paid if it is proved by clear and convincing evidence in a court of
competent jurisdiction that his action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to the Company or
undertaken with reckless disregard for the best interests of the Company.
Indemnitee hereby further agrees to reasonably cooperate with the Company
concerning any Claim.
(c) Indemnification for Additional Expenses. The Company shall
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indemnify Indemnitee against any and all expenses (including attorneys' fees)
which are incurred by Indemnitee in connection with any claim asserted against
or action brought by Indemnitee for (i) indemnification of Expenses or Judgments
or advance payment of Expenses by the Company under this Agreement or under any
other agreement, the Company's Regulations, statute or rule of law now or
hereafter in effect relating to Claims for Indemnifiable Events and/or (ii)
recovery under any directors' and officers' liability insurance policy or
policies maintained by the Company, regardless of whether Indemnitee ultimately
is determined to be entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be.
(d) Partial Indemnity. If 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
Judgments arising from or relating to a Claim but not, however, for all of the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled.
(e) Indemnification of Successful Defense Expenses. Notwithstanding
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any other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any or all Claims relating
in whole or in part to an Indemnifiable Event or in defense of any issue or
matter therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith.
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3. Reviewing Party Determinations.
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(a) General Rules. Notwithstanding the provisions of Section 2, the
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obligations of the Company under Section 2(a) shall be subject to the condition
that the Reviewing Party shall not have determined (in a written opinion, in any
case in which the special, independent counsel referred to in Section 4 thereof
is involved) that Indemnitee would not be permitted to be indemnified under
applicable law; provided, however, that if Indemnitee has commenced legal
proceedings in a court of competent jurisdiction to secure a determination that
Indemnitee should be indemnified under applicable law, any determination made by
the Reviewing Party that Indemnitee would not be permitted to be indemnified
under applicable law shall not be binding until a final judicial determination
is made with respect thereto (as to which all rights of appeal therefrom have
been exhausted or lapsed) and any such determination by the Reviewing Party
shall be modified, to the extent necessary, to conform to such final judicial
determination.
(b) Selection of Reviewing Party. If there has not been a Change in
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Control, the Reviewing Party shall be selected by the Board of Directors. If
there has been such a Change in Control, the Reviewing Party shall be the
special, independent counsel referred to in Section 4 hereof.
(c) Judicial Review. If there has been no determination by the
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Reviewing Party or if the Reviewing Party determines that Indemnitee
substantively would not be permitted to be indemnified in whole or in part under
applicable law, Indemnitee shall have the right to commence litigation in any
court in the state of Ohio having subject matter jurisdiction thereof and in
which venue is proper seeking an initial determination by the court or
challenging any such determination by the Reviewing Party or any aspect thereof,
and the Company hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and Indemnitee.
(d) Burden of Proof. In connection with any determination by the
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Reviewing Party pursuant to Section 3(a), or by a court of competent
jurisdiction pursuant to Section 3(c) or otherwise, as to whether Indemnitee is
entitled to be indemnified hereunder, the burden of proof shall be on the
Company to establish by clear and convincing evidence that Indemnitee is not so
entitled.
4. Change in Control. The Company agrees that if there is a Change in
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Control of the Company (other than a Change in Control which has been approved
by a majority of the Company's Board of Directors who were directors immediately
prior to such Change in Control) then with respect to all matters thereafter
arising concerning the rights of Indemnitee to indemnity payments under this
Agreement or under any other agreement, the Company's Regulations, statute or
rule of law now or hereafter in effect relating to Claims for Indemnifiable
Events, the Company shall seek legal advice only from special, independent
counsel selected by Indemnitee and approved by the Company (which approval shall
not be unreasonably withheld), and who has not otherwise performed services for
the Company within the last five years (other than in connection with such
matters) or Indemnitee. Unless Indemnitee has theretofore selected counsel
pursuant to this Section 4 and such counsel has been approved by the Company,
the firms on the
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attached Exhibit I hereto shall be deemed to satisfy the requirements set forth
above, except with respect to any such firms which the Company or Indemnitee
shall have engaged for any purpose at any time within the five years preceding
such engagement (other than, in the case of the Company, with respect to matters
concerning the rights of Indemnitee (or of other indemnitees under similar
indemnity agreements) to indemnity payments). The Company agrees to pay the
reasonable fees of the special, independent counsel referred to above and to
indemnify fully 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.
5. No Presumption. For purposes of this Agreement, the termination of any
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claim, action, suit or proceeding, by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of nolo contendere, or
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its equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court
has determined that indemnification is not permitted by applicable law.
6. Non-exclusivity. The rights of Indemnitee hereunder shall be in
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addition to any other rights Indemnitee may now or hereafter have to
indemnification by the Company. More specifically, the parties intend that
Indemnitee shall be entitled to indemnification to the maximum extent permitted
by any or all of the following:
(a) The fullest benefits provided by the Company's Regulations in
effect on the date hereof, a copy of the relevant portions of
which are attracted hereto as Exhibit II;
(b) The fullest benefits provided by the Articles of Incorporation,
Regulations, or Bylaws or their equivalent of the Company in
effect at the time the Indemnifiable Event occurs or at the time
Expenses are incurred by Indemnitee;
(c) The fullest benefits allowable under Ohio law in effect at the
date hereof, a copy of the relevant portions of which are
attached hereto as Exhibit III, or as the same may be amended to
the extent that such benefits are increased thereby;
(d) The fullest benefits allowable under the law of the jurisdiction
under which the Company exists at the time the Indemnifiable
Event occurs or at the time Expenses are incurred by the
Indemnitee; and
(e) Such other benefits as are or may be otherwise available to
Indemnitee pursuant to this Agreement, any other agreement or
otherwise.
The parties intend that combination of two or more of the benefits referred to
in (a) through (e) shall be available to Indemnitee to the extent that the
document or law providing for such benefits does not require that the benefits
provided therein be exclusive of other benefits. The Company
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hereby undertakes to use its best efforts to assist Indemnitee, in all proper
and legal ways, to obtain all such benefits to which Indemnitee is entitled.
7. Liability Insurance. The rights of the Indemnitee hereunder shall also
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be in addition to any other rights Indemnitee may now or hereafter have under
policies of insurance maintained by the Company or otherwise. To the extent the
Company maintains an insurance policy or policies providing directors' and
officers' liability insurance, Indemnitee shall be covered by such policy or
policies, in accordance with its or their terms, to the maximum extent of the
coverage available for any Company director. The parties hereby acknowledge that
the Company presently maintains directors' and officers' liability insurance
under policies issued by the following insurers and with the following limits of
liability: National Union Fire Insurance Company of Pittsburgh ($25 million);
Federal Insurance Company ($25 million in excess of $25 million); Continental
Casualty Company ($15 million in excess of $50 million); Zurich Insurance
Company ($25 million in excess of $65 million); and Fidelity & Casualty Company
of New York ($10 million in excess of $90 million). The scope of such insurance
is described in the "Executive Summary" attached hereto as Exhibit IV. The
Company shall maintain such insurance coverage for so long as Indemnitee's
services are covered hereunder, provided and to the extent that such insurance
is available on a basis acceptable to the Company. In the event that such
insurance becomes unavailable in the amount of the present policy limits or in
the present scope of coverage at premium costs and on other terms acceptable to
the Company, then the Company may forego maintenance of all or a portion of such
insurance coverage. However, in the event of any reduction in (or cancellation
of) such insurance coverage (whether voluntary or involuntary), the Company
shall, and hereby agrees to, stand as a self-insurer with respect to the
coverage, or portion thereof, not retained and shall indemnify the Indemnitee
against any loss arising out of the reduction in or cancellation of such
insurance coverage; provided that the Company's obligation as a self-insurer and
indemnitor hereunder shall only extend to the first $60 million of such
coverage.
8. Escrow Fund. As collateral security for its obligations hereunder
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(including specifically its indemnity obligations (other than Judgments) and
other obligations pursuant to Sections 2, 6 and 7) and under similar agreements
with other directors, officers and representatives, in the event of a Change in
Control, the Company shall dedicate and maintain, for a period of five years
following the Change in Control, an escrow account in the aggregate of TEN
MILLION DOLLARS ($10,000,000) by depositing assets or bank letters of credit in
escrow or reserving lines of credit that may be drawn down by an escrow agent in
said amount (the "Escrow Reserve"). The Company shall promptly, following
establishment of the Escrow Reserve, provide Indemnitee with a true and complete
copy of the agreement relating to the establishment and operation of the Escrow
Reserve, together with such additional documentation or information with respect
to the Escrow Reserve as Indemnitee may from time to time reasonably request.
The Company shall promptly, following establishment of the Escrow Reserve,
deliver an executed copy of this Agreement to the escrow agent for the Escrow
Reserve to evidence to that agent that Indemnitee is a beneficiary of the Escrow
Reserve and shall deliver to Indemnitee the escrow agent's signed receipt
evidencing that delivery. Notwithstanding anything to the contrary contained in
this Section 8, any assets deposited by the Company in the
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Escrow Reserve shall at all times be and remain subject to the claims of the
general creditors of the Company.
9. Period of Limitations. No legal action shall be brought and no cause of
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action shall be asserted by or on behalf of the Company or any affiliate of the
Company against Indemnitee, Indemnitee's spouse, heirs, executors or personal or
legal representatives after the expiration of two years from the date of accrual
of such cause of action, and any claim or cause of action of the Company or its
affiliate shall be extinguished and deemed released unless asserted by the
timely filing of a legal action within such two year period; provided, however,
that if any shorter period of limitations is otherwise applicable to any such
cause of action such shorter period shall govern.
10. Liability Standards. This Agreement shall be construed on the basis of
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the duties owed by Indemnitee as a director of the Company, and the standards
for determining liability in damages for a breach thereof, which apply to each
particular Claim. The parties acknowledge that changes in such duties or such
liability standards may result in an expansion or contraction of the Company's
indemnification exposure hereunder.
11. Amendments, Etc. No supplement, modification or amendment of this
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Agreement shall be binding unless executed in writing by both of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
12. Subrogation. In the event of payment under this Agreement, the Company
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shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
13. No Duplication of Payments. The Company shall not be liable under this
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Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, the Company's Regulations or otherwise) of the
amounts otherwise indemnifiable hereunder.
14. Binding Effect, Etc. This Agreement shall be binding upon and inure to
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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, personal and legal
representatives. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as a director of the Company or as a director,
trustee, officer, agent or representative of any other enterprise at the
Company's request.
15. Severability. The provisions of this Agreement shall be severable in
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the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise
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unenforceable, and the remaining provisions shall remain enforceable to the
fullest extent permitted by law.
16. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the state of Ohio applicable to
contracts made and to be performed in such state without giving effect to the
principles of conflicts of laws.
Executed and effective this 26th day of June, 1997.
By /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chairman of the Board
/s/ J. Xxxxxxxx Xxxxxx
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J. Xxxxxxxx Xxxxxx
Director
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Exhibit I
Special, Independent, Counsel
Xxxx, Xxxxxxxxxx & Xxxxxxxxx Xxxxxxxx & Xxxxx
1800 Star Bank Center 000 Xxxx Xxxxxxxx Xx.
000 Xxxxxx Xxxxxx Xxxxxxx, XX 00000
Xxxxxxxxxx, Xxxx 00000-0000 (000) 000-0000
(000) 000-0000
Xxxxx & Xxxxxxxxx Xxxx & Xxxx, Ltd.
3200 National City Center 000 Xxxxx Xxxxxx Xx.
0000 Xxxx Xxxxx Xxxxxx Xxxxx 0000
Xxxxxxxxx, Xxxx 00000 Xxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Vorys, Xxxxx, Xxxxxxx and Xxxxx
00 Xxxx Xxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
(000) 000-0000
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Exhibit IV
EXECUTIVE SUMMARY
Director & Officer
Indemnification & Insurance
Xxxx provides two methods of protecting its directors and officers:
indemnification and insurance.
Indemnification
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Under Xxxx'x indemnification, the Company must reimburse a director for expenses
----
and attorneys fees if he or she prevails in the defense of a claim. In addition,
the Company may reimburse a director for expenses, attorneys' fees, settlement
---
amounts, fines and judgments (even if he or she does not prevail on the claim),
if Xxxx'x Board, Xxxx'x legal counsel, Xxxx'x shareholders or an appropriate
court decides that the director acted in good faith and in a manner he believed
was in, or not opposed to, Xxxx'x best interests. In a criminal matter the
director must have had no reason to believe his conduct was unlawful. Xxxx'x
Board may also indemnify a director (regardless of whether he or she prevails in
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the defense of a claim), against expenses, attorneys fees, fines,
settlement amounts and judgments if the Board decides such indemnification is in
the best interest of Xxxx.
Under Ohio law, Xxxx may not, however, indemnify a director against fines,
settlement amounts and judgments in an action brought by Xxxx or in a derivative
action brought by a shareholder on behalf of Xxxx, if the director is judged to
be negligent or guilty of misconduct. Xxxx does have insurance to protect a
director in such event.
Xxxx may advance expenses to a director, provided he or she agrees to repay Xxxx
if it is later determined that indemnification is not available.
Insurance
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Xxxx carries insurance which provides two types of coverage: indemnification
coverage and "D&O" coverage. Under the indemnification coverage, the
insurance carrier(s) reimburse Xxxx for amounts paid to indemnify directors and
officers. Under the D&O, the insurance carrier
pays amounts directly to the director or officer involved in the claim for
nonindemnifiable acts.
These coverages, called D&O Insurance, have a $100 million aggregate limit.
Defense costs are included within the limit. The indemnification coverage has a
$500,000 per incident deductible.
The D&O coverage has no deductible. Xxxx currently pays $70,000 for the
coverage, and this premium is renegotiated annually.
The following matters, among others, are excluded from coverage under the
policies:
. Libel and slander.
. Gains attributable to personal profit to which a director was not
entitled.
. Xxxxxxx xxxxxxx liability.
. Active and deliberate dishonesty with actual dishonest purpose and
intent.
. Any claim related to or arising from pollution.
. Bodily injury to or sickness, disease or death of a person.
. Injury or destruction to tangible property.
. Illegal payments.
. Suit brought by a director or officer of Xxxx.
Xxxx'x coverage does protect the directors for acts and omissions related to
takeover situations, subject to policy exclusions.
