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Exhibit 10.8
INDEMNIFICATION AGREEMENT
This agreement, effective as of August 30, 1996 is between Bay Xxxxxxx
Operating Company, a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxxxx
("Indemnitee").
Whereas, it is essential to the Company to retain and attract as
directors the most capable persons available; and
Whereas, Indemnitee is a director of the Company; and
Whereas, both the Company and Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors and officers of
public companies; and
Whereas, in recognition of Indemnitee's need for substantial protection
against personal liability in order to maintain Indemnitee's continued service
to the Company in an effective manner and to provide Indemnitee with specific
contractual assurance that the protection will be available to Indemnitee, the
Company desires to provide in this Agreement for the indemnification of and the
advance of expenses to Indemnitee to the full extent (whether partial or
complete) permitted by law, as set forth in this Agreement and, to the extent
officers' and directors' liability insurance is maintained by the Company, to
provide for the continued coverage of Indemnitee under the Company's officers'
and directors' liability insurance policies;
Now, therefore, in consideration of the covenants contained in this
Agreement and of Indemnitee's continuing service to the Company, and intending
to be legally bound, the parties agree as follows:
ARTICLE I - DEFINITIONS
(a) Change in Control: shall be deemed to have occurred if (i) any
person (defined, for purposes of this Article I, 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, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under said Act), directly or indirectly, of securities of the Company
representing 10% or more of the total voting power represented by the Company's
then outstanding Voting Securities, or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors of the Company and any new director whose election by the Board of
Directors or nomination for election by the Company's stockholders was approved
by a vote of at least two thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority of the Board of Directors, or (iii) the stockholders of
the Company approve a merger or consolidation of the Company with any other
corporation, other than a merger
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or consolidation which would result in the Voting Securities of the Company
outstanding immediately prior to such a merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into Voting
Securities of the surviving entity) at least 90% 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 (iv) the
stockholders of the Company approve a plan of complete liquidation of the
Company, an agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially all the
Company's assets, or a plan pursuant to which (in one transaction or a series of
transactions) all or substantially all the Company's assets shall be transferred
to a person not wholly owned by the Company (including but not limited to a plan
pursuant to which all or substantially all of the Company's assets shall be
transferred to a partnership in which the Company has an interest).
(b) Claim: any threatened, pending or completed action suit,
investigation or proceeding, and any appeal, whether civil, criminal,
administrative or investigative and/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.
(c) Expenses: include, without limitation, attorneys' fees and all
other costs, expenses, 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.
(d) Indemnifiable Event: any event, occurrence or circumstance related
to the fact that Indemnitee is or was a director or officer of the Company, was
acting as a trustee or agent of the Company at its request, or by reason of
anything done or not done by Indemnitee in any such capacity.
(e) Reviewing Party: any appropriate person or body consisting of a
member or members of the Company's Board of Directors including the Special
Independent Counsel referred to in Article III (or, to the fullest extent
permitted by law, any other person or body appointed by the Board), who is not a
party to the particular claim for which Indemnitee is seeking indemnification.
(f) Voting Securities: any securities of the Company which vote
generally in the election of directors.
ARTICLE II - AGREEMENT TO INDEMNIFY
(a) 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 the Delaware General Corporation Law, as soon as practicable
but in any event no later than thirty days after written demand is presented to
the Company, against any and all expenses, judgments, fines and penalties
relating to or arising out of such Claim and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, judgments, fines, penalties or
amounts paid in settlement) of such Claim. The failure of Indemnitee to formally
notify the Company of an Indemnifiable Event or Claim within a reasonable amount
of time shall not be deemed a waiver of Indemnitee's rights under
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this Agreement if the Company has actual knowledge of such Indemnifiable Event
or Claim. Notwithstanding anything in this Agreement to the contrary, prior to a
Change in Control Indemnitee shall not be entitled to indemnification pursuant
to this Agreement in connection with any Claim initiated by Indemnitee against
the Company or any director or officer of the Company unless the Company has
joined in or consented to the initiation of such Claim. If so requested by
Indemnitee, the Company shall advance (within five business days of such
request) any and all Expenses to Indemnitee (an "Expense Advance").
(b) Notwithstanding the foregoing, (i) the obligations of the Company
under Article II(a) shall be subject to the condition that any Reviewing Party
shall not have determined (in a written opinion, in any case in which the
Special Independent Counsel referred to in Article III is involved) that
Indemnitee would not be permitted to be indemnified under applicable law, and
(ii) the obligation of the Company to make an Expense Advance pursuant to
Article II(a) shall be subject to the condition that if, when and to the extent
that any Reviewing Party determines that Indemnitee would not be permitted to be
so indemnified under applicable law, the Company shall be entitled to be
reimbursed by Indemnitee (who hereby undertakes to reimburse the Company in such
a case) for all such amounts paid; provided, however, that if Indemnitee
commences, or 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 a Reviewing Party that
Indemnitee would not be permitted to be indemnified under applicable law shall
not be binding and Indemnitee shall not be required to reimburse the Company for
any Expense Advance until a final judicial determination is made (as to which
all rights of appeal have been exhausted or lapsed). If there has not been a
Change in Control, a Reviewing Party shall be selected by the Board of
Directors, and if there has been such a Change in Control, a Reviewing Party
shall be Special Independent Counsel referred to in Article III. If there has
been no appointment or no determination by a Reviewing Party or if a 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 California or Delaware having
subject matter jurisdiction and in which venue is proper seeking an initial
determination by the court or challenging any such determination by the court or
challenging any such determination by the Reviewing Party, including the legal
or factual basis, and the Company 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.
(c) Notwithstanding the foregoing and as a condition to making Expense
Advances to Indemnitee for legal fees, the Company shall, in its sole
discretion, select the attorney or attorneys to represent and defend Indemnitee
unless (i) the Company fails to fulfill its obligations make Expense Advances;
(ii) the Company, in its sole discretion, agrees to permit Indemnitee to select
his or her own attorney or attorneys; or (iii) a conflict of interest arises
between the Company and Indemnitee, in which case Indemnitee shall select his or
her own attorney, subject to the Company's reasonable approval.
ARTICLE III - CHANGE IN CONTROL
The Company agrees that if there is a Change in 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
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thereafter arising concerning the rights of Indemnitee to indemnity payments and
Expense Advances under this Agreement or any other agreement, the Company's
Articles of Incorporation, or the Company's Bylaws 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 or Indemnitee within the last five years
(other than in connection with such matters). Such Special Independent Counsel,
among other things, shall render its written opinion to the Company and
Indemnitee as to whether and to what extent the Indemnitee would be permitted to
be indemnified under applicable law. The Company agrees to pay the reasonable
fees of the Special Independent Counsel referred to above and may fully
indemnify such Special Independent Counsel against any and all expenses
(including attorneys' fees), claims, liabilities and damages arising out of or
relating to this Agreement.
ARTICLE IV - ESTABLISHMENT OF LETTER OF CREDIT
The Company's obligations to make indemnity payments and Expense
Advances to Indemnitee under this Agreement shall be secured by a letter of
credit in the amount of $1,000,000 which shall also secure the Company's
indemnity payment and expense advance obligations to Xxxxxx X. Xxxxxxxx, Xx.,
Xxxx X. Xxxxxx, F. Xxxx Xxxxxx, Xxx Xxxxxx and Xxxxxxx X. Xxxxxx (along with
Indemnitee, the "Current Directors") and Xxxxx Xxxxxxxx, each of whom, along
with Indemnitee, shall be named a beneficiary of the letter of credit. Such
letter of credit shall be established no later than ten (10) days after the date
of this Agreement and shall remain in place for an initial period of one year
or, if less, until any four of the Current Directors, one of which may but need
not be the Indemnitee, at their sole election, consent to the termination of
such letter of credit. If, after the initial or any subsequent period, such
letter of credit is not renewed for a subsequent period, any four of the Current
Directors shall have the right to draw the full amount thereof to hold as cash
collateral securing the obligations under this Agreement. The letter of credit
shall additionally provide that draws may be made by any four of the Current
Directors, one of which may but need not be the Indemnitee, upon their
certification that (a) Indemnitee is entitled to indemnity or Expenses Advances
under this Agreement, (b) Indemnitee has demanded the amount being drawn from
the Company in writing, and (c) the Company has not paid the full amount within
the time required by this Agreement. Recourse to the letter of credit shall be
in addition to, and not in lieu of, any manner otherwise available for
enforcement of this Agreement and nothing in this Article shall relieve the
Company of any of its obligations under this Agreement.
ARTICLE V - ADDITIONAL EXPENSES
To the fullest extent permitted by law, the Company shall indemnify
Indemnitee against any and all Expenses (including attorneys' fees) and, if
requested by Indemnitee, shall (within five business days of such request)
advance such Expenses to Indemnitee, which are incurred by Indemnitee in
connection with any Claim asserted against or action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Company under this
Agreement or any other agreement, the Company's Bylaws or Articles of
Incorporation now or hereafter in effect relating to Claims for Indemnifiable
Events and/or (ii) recovery under any directors' and officers' liability
insurance policies maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, Expense advance
or insurance recovery, as the case may be.
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ARTICLE VI - PARTIAL INDEMNITY AND CONTRIBUTION
(a) 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 and amounts paid in settlement of a Claim but not, however, for
all of the total amount, the Company shall nevertheless indemnify Indemnitee for
the portion to which Indemnitee is entitled. Moreover, notwithstanding 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,
including dismissal without prejudice, Indemnitee shall be indemnified against
all Expenses incurred in connection with those defenses. In connection with any
determination by the Reviewing Party or otherwise as to whether Indemnitee is
entitled to be indemnified, the burden of proof shall be on the Company to
establish that Indemnitee is not so entitled.
(b) In the event that the Company is not obligated to make indemnity
payments and Expense Advances under this Agreement, the Company's Bylaws or the
Delaware General Corporation Law, contribution as between the Company and
Indemnitee toward any judgment or settlement relating to a Claim by reason of
(or arising in part out of) an Indemnification Event shall be based upon the
relative benefits to and faults of each of the parties involved.
ARTICLE VII - NO PRESUMPTIONS
For purposes of this Agreement, to the fullest extent permitted by law,
the termination of any 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 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.
ARTICLE VIII - NONEXCLUSIVITY
The rights of the Indemnitee hereunder shall be in addition to any
other rights Indemnitee may have under the Company's Articles of Incorporation,
Bylaws, the Delaware General Corporation Law or otherwise. To the extent that a
change in the Delaware General Corporation Law (whether by statute or judicial
decision) permits greater indemnification by agreement than would be afforded
currently under the Company's Articles of Incorporation or Bylaws or this
Agreement, to the fullest extent permitted by law it is the intent of the
parties to that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change immediately upon the occurrence of such change without
further action by the Company or Indemnitee.
ARTICLE IX - INSURANCE
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 director or officer of the
Company. The Company agrees to make demand on such policies or all of such
policies which may be applicable in the event it may also have an
indemnification obligation under this Agreement.
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ARTICLE X - LIMITATIONS PERIOD
No legal action shall be brought and no cause of action shall be
asserted by or in the right 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.
ARTICLE XI - AMENDMENTS
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both of the parties. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions (whether or not similar) nor shall such waiver constitute a
continuing waiver.
ARTICLE XII - SUBROGATION
The Company shall not be liable under this 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,
Bylaw or otherwise) of the amounts otherwise indemnifiable.
ARTICLE XIII - BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties and their respective successors, assigns, including
any direct or indirect successors 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, substantially all or a substantial
part, of the business and/or assets of the Company, by written agreement in form
and substance satisfactory to the Indemnitee, expressly to assume and agree to
perform this Agreement in the same 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 an officer or director of the Company or continues to act as a trustee
or agent of the Company at its request.
ARTICLE XIV - SEVERABILITY
The provisions of this Agreement shall be severable in 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 unenforceable in any respect, and the validity and
enforceability of any such provision in every other respect and of the remaining
provisions shall not be in any way impaired, and shall remain enforceable to the
fullest extent permitted by law.
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ARTICLE XV - NOTICES
All notices, requests, demands, and other communications 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:
If to Indemnitee, to:
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If to Company, to: Bay Xxxxxxx Operating Company
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: President
or to such other address as may have been furnished to the Indemnitee by the
Company or to the Company by the Indemnitee, as the case may be.
ARTICLE XVI - GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of California applicable to contracts made and to be
performed in such State without giving effect to the principles of conflicts of
laws.
In Witness Whereof, the parties have duly executed and delivered this
Agreement this 30th day of August, 1996.
BAY XXXXXXX OPERATING COMPANY
By:
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Title:
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INDEMNITEE
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
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