EXHIBIT 10.16
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT ("Agreement"), made this 6th day of March,
2000 between RDO Equipment Co. ("Indemnitor") and Deere & Company ("Deere").
WHEREAS, Indemnitor is a Deere dealer; and
WHEREAS, in January 1997 Indemnitor completed its initial public
offering of its Class A Common Stock; and
WHEREAS, Deere is willing to consider Indemnitor's possible future
acquisitions of Xxxx Deere dealerships or distributors on certain conditions,
including a condition that Deere and certain others be indemnified as set forth
herein; and
WHEREAS, Indemnitor is willing to provide such indemnity as provided
herein;
NOW, THEREFORE, in consideration of the promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. INDEMNITY
Indemnitor hereby agrees to indemnify and hold harmless Deere, its subsidiary
and affiliated corporations, and their respective directors, officers, employees
and agents (collectively, "Indemnitees") from and against any and all losses,
liabilities, judgments, penalties, amounts paid in settlement, claims, damages
and expenses whatsoever, including but not limited to any and all reasonable
expenses whatsoever (excluding the time and costs of Indemnitee employees and
other internal costs of Indemnitees) incurred in investigating, preparing or
defending against any litigation or any investigation or proceeding by any
governmental body or agency, whether commenced or threatened, to which an
Indemnitee may become subject under the Securities Act of 1933 as amended (the
"Act"), the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the securities laws of any state, any other statute, or at common law or
otherwise, or under the laws of any foreign country, arising in connection with,
arising out of, or resulting from:
(a) the registration, listing, offer, sale, distribution or resale
of any Indemnitor security,
(b) an untrue statement or omission, whether actual or alleged, in
connection with any Indemnitor security, or
(c) an allegation that an Indemnitee is a "controlling person" of
Indemnitor within the meaning of the Act or the Exchange Act.
The foregoing are hereafter referred to as "Losses." The indemnity provided for
herein shall be enforceable without regard to the negligence of the Indemnitee;
provided that Indemnitor shall have no obligation to defend or indemnify
hereunder with respect to a particular Loss if and to the limited extent such
Loss results directly from an untrue statement or omission by Indemnitor based
upon, and in reasonable reliance upon, a written statement of fact (not
prediction or opinion) directed to Indemnitor and signed by an officer of Deere
or one of Deere's equipment divisions, but only if such statement was false when
so signed.
In the event that the foregoing indemnity is unavailable to an Indemnitee other
than in accordance with this Agreement, the Indemnitor shall contribute to the
Losses paid or payable by such Indemnitee in such proportion as is appropriate
to reflect (i) the relative benefits to the Indemnitor, on the one hand, and to
the Indemnitee, on the other hand, of the matters contemplated by this Agreement
or (ii) if the allocation provided by the immediately preceding clause is not
permitted by applicable law, not only such relative benefits but also the
relative fault of the Indemnitor, on the one hand, and the Indemnitee, on the
other hand, in connection with the matters as to which such Losses relate, as
well as any other relevant equitable considerations.
2. NOTIFICATION AND DEFENSE OF CLAIM
(a) If any litigation is commenced against an Indemnitee in
respect of which indemnity may be sought pursuant to this
Agreement, Deere shall promptly notify Indemnitor in writing
of the commencement of litigation, and Indemnitor shall then
assume the defense of such litigation, including but not
limited to the employment and fees of counsel (reasonably
satisfactory to Deere) and the payment of all expenses of the
litigation.
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If, with respect to litigation commenced against one or more
Indemnitees for the recovery of damages and defended by
Indemnitor pursuant hereto, a court or arbitrator (in binding
arbitration) of competent jurisdiction finally (including all
rights of appeal) determines that an Indemnitee is liable to
the claimant for such damages as a result of that Indemnitee's
own intentional or reckless misconduct, then Indemnitor shall
have no obligation hereunder to indemnify the Indemnitees with
respect to any judgement rendered against the Indemnitees in
such litigation, and Deere shall promptly reimburse Indemnitor
for the reasonable expenses Indemnitor actually incurred
(excluding the time and costs of Indemnitor employees and
other internal costs of Indemnitor) in defending the
Indemnitee(s) in such litigation.
(b) Deere shall have the right to employ its own counsel, at its
own expense, in connection with any claim, litigation,
investigation, or proceeding covered by Section 1 to oversee
the matter on behalf of Deere, to consult with the attorneys
engaged by Indemnitor as to the proper handling of the matter
and to take such actions in connection with the matter as are
reasonably necessary to protect Deere's interests. Employment
of such counsel by Deere shall not affect Indemnitor's duty
hereunder to defend the matter, at Indemnitor's own expense,
on behalf of the Indemnitees.
(c) Indemnitor shall promptly notify Deere of the commencement of
any litigation covered by Section 1. Indemnitor and Deere
agree to cooperate with each other in the defense of any such
litigation. Indemnitor shall not be obligated to indemnify, or
provide further defense for, an Indemnitee other than Deere
who does not cooperate with Indemnitor, Deere, and their
respective counsel as may be reasonably requested in the
defense of any such litigation provided such failure to
cooperate presents a real and substantial risk to the
interests of Indemnitor or an Indemnitee in connection with
the litigation. The preceding sentence shall not relieve
Indemnitor of any obligation hereunder unless the failure to
cooperate involved continues after both Deere and the
non-cooperating Indemnitee receive written notice of, and a
reasonable opportunity to cure, the failure to cooperate.
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(d) Indemnitor shall not be obligated to indemnify an Indemnitee
under this Agreement for any amounts paid by the Indemnitee in
settlement of any claim or litigation covered by Section 1 if
such settlement is effected by the Indemnitee without
Indemnitor's prior written consent. Indemnitor shall not, in
the defense of any claim, litigation, investigation or
proceeding covered by Section 1, except with Deere's prior
written consent, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional
term thereof a release of all the Indemnitiees from all
liability in respect to such matter.
3. ENFORCEMENT
(a) Indemnitor expressly confirms and agrees that it has entered
into this Agreement and assumed the obligations imposed on it
hereunder in order to induce Deere to consider Indemnitor as a
candidate for future dealerships or distributorships.
Indemnitor acknowledges that Deere is relying upon this
Agreement, and other promises.
(b) In the event an Indemnitee is required to bring any action to
enforce rights or to collect moneys due under this Agreement
and is successful in such action, Indemnitor shall reimburse
such Indemnitee for all of such Indemnitee's reasonable fees
and expenses in bringing and pursuing such action (excluding
the time and costs of Indemnitee employees and other internal
costs of Indemnitees); provided that if the Indemnitee is not
successful in such action, the Indemnitee shall reimburse
Indemnitor for all of Indemnitor's reasonable fees and
expenses incurred in defending such action (excluding the time
and costs of Indemnitor employees and other internal costs of
Indemnitor).
4. MISCELLANEOUS
(a) The obligations of Indemnitor under this Agreement shall be in
addition to any liability that Indemnitor may otherwise have
and shall extend, upon
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the same terms and conditions, to each person, if any, who
controls and Indemnitee within the meaning of Section 15 of
the Act.
(b) This Agreement shall be binding upon and inure to the benefit
of Indemnitor and the Indemnitees and their respective legal
representatives, successors and assigns. This Agreement shall
not be assignable by Indemnitor without Deere's prior written
consent.
(c) This Agreement shall be enforceable regardless of whether
Indemnitor acquires any additional Xxxx Deere dealerships or
distributorships.
(d) No amendment, modification or termination of this Agreement
shall be effective unless in writing and signed by both
Indemnitor and Deere.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
RDO Equipment Co.
By: /s/ Xxxx X. Xxxx
Title: President
Deere & Company
By: /s/ Xxxxxx X. Xxxxxx
Title: Sr. V.P .N.A. Marketing
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