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EXHIBIT 10-P
INDEMNITY AGREEMENT
THIS AGREEMENT made this ___ day of ____, 1998, between Veritas DGC
Inc., a Delaware corporation ("Company"), and __________, ("Indemnitee")
WHEREAS, the Company and Indemnitee desire that Indemnitee continue to
serve as a director and/or executive officer of the Company; and
WHEREAS, the Company desires and intends hereby to provide
indemnification (including advancement of expenses) against any and all
liabilities asserted against Indemnitee to the fullest extent permitted by the
General Corporation Law of the State of Delaware,
NOW, THEREFORE,
W I T N E S S E T H:
THAT for and in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Continued Service. Indemnitee will continue to serve, at the will of
the Company and under separate contract, if such exists, as a director and/or
executive officer so long as he is duly elected and qualified in accordance with
the Bylaws of the Company or until he tenders his resignation.
2. Indemnification. The Company shall indemnify Indemnitee as follows:
(a) The Company shall indemnify Indemnitee when he is a party
or is threatened to be made a party to any threatened, pending or completed
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 he is or was a director, executive officer, employee or agent
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of the Company, or is or was serving at the request of the Company as a
director, executive officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, executive officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlements actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee failed to 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, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(b) The Company shall indemnify Indemnitee when he is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Company to procure a judgment in its
favor by reason of the fact that he is or was a director, executive officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a director, executive officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company and except that no indemnification shall be made
in respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Company unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all
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the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnification for such expenses which the Court of Chancery or such other
court shall deem proper.
(c) Any indemnification under paragraphs (a) and (b) of this
Section 2 (unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination (in accordance with Section
3 hereof) that indemnification of Indemnitee is proper in the circumstances
because he has met the applicable standard of conduct set forth in paragraphs
(a) and (b) of this Section 2. Such determination shall be made (1) by a
majority vote of the board of directors who were not parties to such action,
suit or proceeding, even though less than a quorum, or (2) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(d) Expenses (including attorneys' fees) incurred by
Indemnitee in defending a civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding as authorized (in accordance with
Section 4 hereof) by the board of directors in the specific case upon receipt of
an undertaking by or on behalf of Indemnitee to repay such amount if it is
ultimately determined that he is not entitled to be indemnified by the Company
under this Agreement or otherwise.
(e) The indemnification and advancement of expenses provided
by this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under any statute, bylaw, insurance policy,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue after Indemnitee has ceased to be a
director, executive officer, employee or agent and shall inure to the benefit of
his heirs, executors and administrators.
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3. Determination of Right to Indemnification. For purposes of making
the determination in a specific case under paragraph (c) of Section 2 hereof
whether to make indemnification, the board of directors, independent legal
counsel, or stockholders, as the case may be, shall make such determination in
accordance with the following procedure:
(a) Indemnitee may submit to the board of directors a sworn
statement of request for indemnification substantially in the form of Exhibit 1
attached hereto and made a part hereof ("Indemnification Statement") averring
that he has met the applicable standard of conduct set forth in paragraphs (a)
and (b) of Section 2 hereof;
(b) Submission of the Indemnification Statement to the board
of directors shall create a rebuttable presumption that Indemnitee is entitled
to indemnification under this Agreement, and the board of directors, independent
legal counsel, or stockholders, as the case may be, shall within 60 days after
submission of the Indemnification Statement specifically determine that
Indemnitee is so entitled, unless it or they shall possess sufficient evidence
to rebut the presumption that Indemnitee has met the applicable standard of
conduct set forth in paragraph (a) or (b) of Section 2 hereof, which evidence
shall be disclosed to Indemnitee with particularity in a sworn written statement
signed by all persons who participated in the determination and voted to deny
indemnification.
4. Authorization of Advancement of Expenses. For purpose of determining
whether to authorize advancement of expenses in a specific case pursuant to
paragraph (d) of Section 2 hereof, the board of directors shall make such
determination in accordance with the following procedure:
(a) Indemnitee may submit to the board of directors a sworn
statement of request for advancement of expenses substantially in the form of
Exhibit 2 attached hereto and made a part hereof ("Undertaking"), averring that
(i) he has reasonably incurred or will reasonably incur actual
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expenses in defending a civil or criminal action, suit or proceedings, and (ii)
he undertakes to repay such amount if it is ultimately determined that he is not
entitled to be indemnified by the Company under this Agreement or otherwise;
(b) Upon receipt of the Undertaking the board of directors
shall within 14 days authorize immediate payment of the expenses stated in the
Undertaking.
5. Merger, Consolidation or Change in Control. In the event that the
Company shall be a constituent corporation in a consolidation or merger, whether
the Company is the resulting or surviving corporation or is absorbed, or if
there is a change in control of the Company as defined in Section 6 hereof,
Indemnitee shall stand in the same position under this Agreement with respect to
the resulting, surviving or changed corporation as he would have with respect to
the Company if its separate existence had continued or if there had been no
change in the control of the Company.
6. Certain Definitions. For purposes of this Agreement, the following
definitions apply herein:
"other enterprises" shall include employee benefit plans, and civic,
non-profit, or charitable organizations, whether or not incorporated;
"fines" shall include any excise taxes assessed on Indemnitee with
respect to any employee benefit plan;
"serving at the request of the Company" shall include any service at
the request or with the express or implied authorization of the Company, as a
director, executive officer, employee or agent of the Company which imposes
duties on, or involves services by, Indemnitee with respect to a corporation or
"other enterprises," its participants or beneficiaries; and if Indemnitee acted
in good faith and in a manner he reasonably believed to be in the interest of
the participants and
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beneficiaries of such "other enterprises," he shall be deemed to have acted in a
manner "not opposed to the best interests of the Company" as referred to in this
Agreement; and
"change of control" shall include any change in the ownership of
a majority of the capital stock of the Company or in the composition of a
majority of the members of the board of directors of the Company.
7. Attorneys' Fees. In the event that Indemnitee institutes any legal
action to enforce his rights under, or to recover damages for breach of this
Agreement, Indemnitee, if he prevails in whole or in part, shall be entitled to
recover from the Company all attorneys' fees and disbursements incurred by him.
8. Severability. If any provision of this Agreement or the application
of any provision hereof to any person or circumstances is held invalid, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its conflict
of laws rules.
10. Modification; Survival. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof. This Agreement
may be modified only by an instrument in writing signed by both parties hereto.
The provisions of this Agreement shall survive the termination of Indemnitee's
service as a director and/or executive officer of the Company.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement and the Company has set its seal as of the date first above written.
Veritas DGC Inc.
By:
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Xxxxx X. Xxxxxx,Chief Executive Officer
(Corporate Seal)
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EXHIBIT 1
STATEMENT OF REQUEST FOR INDEMNIFICATION
STATE OF TEXAS )
COUNTY OF XXXXXX )
I, _________________, being first duly sworn do depose and say as
follows:
1. This Statement is submitted pursuant to the Indemnity Agreement
dated ________________, between Veritas DGC Inc., a Delaware corporation
("Company"), and the undersigned.
2. I am requesting indemnification against expenses (including
attorneys' fees) and, with respect to any action not by or in the right of the
Company, judgments, fines and amounts paid in settlement, all of which have been
actually and reasonably incurred by me in connection with a certain action, suit
or proceeding to which I am a party or am threatened to be made a party by
reason of the fact that I am or was a director and/or executive officer of the
Company.
3. With respect to all matters related to any such action, suit or
proceeding, I acted in good faith and in a manner I reasonably believed to be or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, I had no reason to believe that my conduct was
unlawful.
4. I am requesting indemnification against the following liabilities
____________________________________________________.
____________________________________________
Subscribed and sworn to before me this ___ day of _____________, 19__.
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Notary Public in and for the State of Texas
My Commission expires:
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EXHIBIT 2
STATEMENT OF UNDERTAKING
STATE OF TEXAS )
COUNTY OF XXXXXX )
I, _______________, being first duly sworn do depose and say as
follows:
1. This Statement is submitted pursuant to the Indemnity Agreement
dated ________________, between Veritas DGC Inc., a Delaware corporation
("Company"), and the undersigned.
2. I am requesting advancement of certain actual expenses which I have
reasonably incurred or will reasonably incur in defending a civil, criminal,
administrative or investigative action, suit or proceeding.
3. I hereby undertake to repay this advancement of expenses if it is
ultimately determined that I am not entitled to be indemnified by the Company.
4. The expenses for which advancement is requested are as follows:
____________________________________________________.
____________________________________________
Subscribed and sworn to before me this ___ day of ___________, 19___.
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Notary Public in and for the State of Texas
My Commission expires:
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