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EXHIBIT 10.21
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT is made and entered into this ____ day of
_________, 19__ by and among XXXXXX INDUSTRIES, INC., a corporation organized
and existing under the laws of Delaware (the "Corporation") and XX. XXXXXX X.
XXXXXXXX (the "Director").
W I T N E S S E T H:
WHEREAS, the Corporation desires to have the Director serve as a
director of the Corporation; and
WHEREAS, the Director is willing to serve as a director of the
Corporation upon the execution and delivery by the Corporation of this Indemnity
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual promises herein contained, the parties hereby agree as follows:
1. Acceptance. The Director hereby accepts, effective the date hereof
(the "Effective Date"), the appointment as a director of the Corporation, and so
long as he continues to be a director of the Corporation, the Director shall
exercise all functions required by the Certificate of Incorporation and By-laws
of the Corporation, Delaware General Corporation Law and other relevant laws.
2. Indemnification.
(a) Defined Terms. For purposes of Sections 2 through 7
inclusive, the following terms shall have the meaning given here:
(i) "Change of Control" shall mean any of the
following events:
(A) Unless approved by the affirmative vote
of at least two-thirds (2/3) of those members of the
board of directors of the Company (the "Board") who
are in office immediately prior to the event(s) and
who are not employees of the Corporation:
(1) the merger or consolidation of the
Corporation with, or the sale of all or substantially
all of the assets of the Corporation to, any person
or entity or group of associated persons or entities;
or
(2) the direct or indirect beneficial
ownership in the aggregate of securities of the
Corporation representing twenty percent (20%) or more
of the total combined voting power of the
Corporation's then issued and outstanding securities
by any person or entity, or group of associated
persons or entities acting in concert, not affiliated
(within the meaning of the Securities Act of 1933, as
amended) with the Corporation as of the Effective
Date; or
(3) approval by the stockholders of the
Corporation of any plan or proposal for the
liquidation or dissolution of the Corporation.
(B) A change in the composition of the Board
at any time during any consecutive twenty-four (24)
month period such that the "Continuing Directors"
cease for any reason to constitute at least a seventy
percent (70%) majority of the Board.
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For purposes of this clause (B), the
"Continuing Directors" shall mean those members of
the Board who either:
(1) were directors at the beginning of such
consecutive 24-month period; or
(2) were elected by, or on the nomination or
recommendation of, at least a two-thirds (2/3)
majority (consisting of at least four directors) of
the then existing Board.
(ii) "Corporate Status" shall mean
the status of a person who is or was a
director, officer or fiduciary of the
Corporation or of any other corporation,
partnership, joint venture, trust, employee
benefit plan or other enterprise which such
person is or was serving at the express
written request of the Corporation.
(iii) "Disinterested Director" shall
mean a director of the Corporation who is
not and was not a party to the Proceeding in
respect of which indemnification is sought
by the Director.
(iv) "Enterprise" shall mean the
Corporation and any other corporation,
partnership, joint venture, trust, employee
benefit plan or other enterprise which the
Director is or was serving as a director,
officer or fiduciary at the express written
request of the Corporation.
(v) "Expenses" shall include all
reasonable attorneys' fees, retainers, court
costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone
charges, postage, delivery service fees, and
all other disbursements or expenses of the
types customarily incurred in connection
with prosecuting, defending, preparing to
prosecute or defend investigating or being
or preparing to be a witness in a
Proceeding.
(vi) "Good Faith" shall mean the
Director's having acted in good faith and in
a manner the Director reasonably believed to
be in, or not opposed to, the best interests
of the Corporation, and, with respect to any
criminal Proceeding, having had no
reasonable cause to believe his conduct was
unlawful.
(vii) "Independent Counsel" means a
law firm, or a member of a law firm, that is
experienced in matters of corporation law
and neither presently is, nor in the past
five (5) years has been, retained to
represent: (i) the Corporation or Director
in any matter material to either such party,
or (ii) any other party to the Proceeding
giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing,
the term Independent Counsel" shall not
include any person who, under the applicable
standards of professional conduct then
prevailing, would have a conflict of
interest in representing either the
Corporation or the Director in an action to
determine the Director's rights under this
Agreement.
(viii) "Proceeding" includes any
action, suit arbitration, alternate dispute
resolution mechanism, investigation,
administrative hearing or any other actual,
threatened or completed proceeding, whether
civil, criminal, administrative or
investigative, other than one initiated by
the Director.
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(b) In General. In connection with any Proceeding
involving acts or omissions occurring subsequent to the
Effective Date, the Corporation shall indemnify and advance
Expenses to the Director as provided in this Agreement to the
fullest extent permitted by applicable law in effect on the
Effective Date and to such greater extent as applicable law
may thereafter from time to time permit.
(c) Proceedings Other Than Proceedings by or in the Right of
Corporation. If, by reason of the Director's Corporate Status, the Director is
or is threatened to be made a party to any Proceeding other than a Proceeding by
or in the right of the Corporation, the Corporation shall indemnify the Director
against Expenses, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by the Director or in the Director's behalf in
connection with such Proceeding or any claim, issue or matter therein if the
Director acted in Good Faith.
(d) Proceedings by or in the Right of Corporation. If, by
reason of the Director's Corporate Status, the Director is, or is threatened to
be made a party to any Proceeding brought by or in the right of the Corporation
to procure a judgment in its favor, the Director shall be indemnified against
Expenses, judgments, penalties and amounts paid in settlement, actually and
reasonably incurred by the Director or on the Director's behalf in connection
with such Proceeding if the Director acted in Good Faith. Notwithstanding the
foregoing, no such indemnification shall be made in respect of any claim, issue
or matter in such Proceeding as to which the Director shall have been adjudged
to be liable to the Corporation if applicable law prohibits such
indemnification; provided, however that if applicable law so permits,
indemnification shall nevertheless be made by the Corporation in such event if
and only to the extent that the Court of Chancery of the State of Delaware or
the court in which such Proceeding shall have been brought or is pending shall
determine.
(e) Indemnification of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, to the extent
that the Director is, by reason of the Director's Corporate Status, a party to
and is successful on the merits or otherwise, in any Proceeding, the Director
shall be indemnified to the maximum extent permitted by law, against all
Expenses, judgments, penalties, fines and amounts paid in settlement, actually
and reasonably incurred by the Director or on the Director's behalf in
connection therewith. If the Director is not wholly successful on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding the Corporation shall indemnify the Director to the maximum extent
permitted by law against all Expenses, judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred by the Director on the
Director's behalf in connection with each successfully resolved claim, issue or
matter. For purposes of this paragraph (e) and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter, so long as there has been no finding (either adjudicated
or pursuant to this Section 2) that the Director did not act in Good Faith.
(f) Indemnification for Expenses of a Witness. Notwithstanding
any other provision of this Agreement, to the extent that the Director is, by
reason of the Director's Corporate Status, a witness in any Proceeding, the
Director shall be indemnified against all Expenses actually and reasonably
incurred by the Director or on the Director's behalf in connection therewith.
(g) Successors. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Agreement shall continue as
to the Director and shall inure to the benefit of the heirs, executors and
administrators of the Director.
3. Advancement of Expenses.
Notwithstanding any provision to the contrary in Section 2, the
Corporation shall advance all reasonable Expenses, which, by reason of the
Director's Corporate Status, were incurred by or on behalf of the Director in
connection with any Proceeding, within twenty (20) days after the receipt by the
Corporation of a
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statement or statements from the Director requesting such advance or advances,
whether prior to or after final disposition of such Proceeding. Such statement
or statements shall reasonably evidence the Expenses incurred by the Director
and shall include or be preceded or accompanied by an undertaking by or on
behalf of the Director to repay any Expenses if it shall ultimately be
determined that the Director is not entitled to be indemnified against such
Expenses. Any advance and undertakings to repay pursuant to this section 3 shall
be unsecured and interest-free.
4. Procedures For Determination of Entitlement to Indemnification.
(a) Initial Request. To obtain indemnification under this Agreement,
the Director shall submit to the Corporation a written request, including
therein or therewith such documentation and information as is reasonably
available to the Director and which is reasonably necessary to determine whether
and to that extent the Director is entitled to indemnification. The Secretary of
the Corporation shall promptly advise the Board in writing that the Director has
requested indemnification.
(b) Method of Determination. A determination (if required by
applicable law) with respect to the Director's entitlement to indemnification
shall be made as follows:
(i) if a Change in Control has occurred, unless the Director
shall request in writing that such determination be made in accordance with
paragraph (b)(ii) of this Section 4, the determination shall be made by
Independent Counsel in a written opinion to the Board, a copy of which shall be
delivered to the Director;
(ii) if a Change of Control has not occurred, the determination
shall be made by the Board by a majority vote of a quorum consisting of
Disinterested Directors. In the event that a quorum of the Board consisting of
Disinterested Directors is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, the determination shall- be made by
Independent Counsel in a written opinion to the Board, a copy of which shall be
delivered to the Director.
(c) Selection, Payment and Discharge of Independent Counsel. In the
event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 4(b) of this Agreement, the Independent
Counsel shall be selected, paid and discharged in the following manner:
(i) If a Change of Control has not occurred, the Independent
Counsel shall be selected by the Board and the Corporation shall give written
notice to the Director advising the Director of the identity of the Independent
Counsel so selected.
(ii) If a Change of Control has occurred, the Independent
Counsel shall be selected by the Director (unless the Director shall request
that such selection be made by the Board, in such event clause (i) of this
Section shall apply), and the Director shall give written notice to the
Corporation advising it of the identity of the Independent Counsel so selected.
(iii) Following the initial selection described in clauses (i)
and (ii) of this Section 4(c), the Director or the Corporation, as the case may
be, may, within seven (7) days after such written notice of selection has been
given, deliver to the other party a written objection to such selection. Such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of "Independent Counsel" and the
objection shall set forth with particularity the factual basis of such
assertion. Absent a proper and timely objection, the person so selected shall
act as Independent Counsel. If such written objection is made, the Independent
Counsel so selected may not serve as Independent Counsel unless and until a
court has determined that such objection is without merit.
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(iv) Either the Corporation or the Director may petition the
Court of Chancery of the State of Delaware or any other court of competent
jurisdiction if the parties have been unable to agree on the selection of
Independent Counsel within twenty (20) days after submission by the Director of
a written request for indemnification pursuant to Section 4(a) of this
Agreement. Such petition may request a determination whether an objection to the
party's selection is without merit and/or seek the appointment as Independent
Counsel of a person selected by the Court or by such other person as the Court
shall designate. A person so appointed shall act as Independent Counsel under
Section 4(b) of this Agreement.
(v) The Corporation shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to this Agreement, and the Corporation shall pay
all reasonable fees and expenses incident to the procedures of this Section
4(c), regardless of the manner in which such Independent Counsel was selected or
appointed.
(vi) Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 6(b) of this Agreement, Independent Counsel
shall be discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then prevailing).
(d) Cooperation. The Director shall cooperate with the person,
persons or entity making the determination with respect to the Director's
entitlement to indemnification under this Agreement, including providing to such
person, persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to the Director and reasonably necessary to such
determination. Any costs or expenses (including attorneys' fees and
disbursements) incurred by the Director in so cooperating with the person,
persons or entity making such determination shall be borne by the Corporation
(irrespective of the determination as to the Director's entitlement to
indemnification) and the Corporation hereby indemnifies and agrees to hold the
Director harmless therefrom.
(e) Payment. If it is determined that the Director is entitled to
indemnification, payment to the Director shall be made within ten (10) days
after such determination.
5. Presumption and Effect of Certain Proceedings.
(a) Burden of Proof. In making a determination with respect to
entitlement of indemnification hereunder, the person or persons or entity making
such determination shall presume that the Director is entitled to
indemnification under this Agreement if the Director has submitted a request for
indemnification in accordance with Section 4(a) of this Agreement, and the
Corporation shall have the burden of proof to overcome that presumption in
connection with the making of any person, persons or entity of any determination
contrary to that presumption.
(b) Effect of Other Proceedings. The termination of any Proceeding
or of any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself adversely
affect the right of the Director to indemnification or create a presumption that
the Director did not act in Good Faith.
(c) Reliance as Safe Harbor. For purposes of any determination of
Good Faith, the Director shall be deemed to have acted in Good Faith if the
Director's action is based on the records or books of account of the Enterprise,
including financial statements, or on information supplied to the Director by
the officers of the Enterprise in the course of their duties, or on information
or records given or reports made to the Enterprise by an independent certified
public accountant or by an appraiser or other expert selected with reasonable
care by the Enterprise. The provisions of this Section 5(c) shall not be deemed
to be exclusive or to limit in any way the other circumstances in which the
Director may be deemed to have met the applicable standard of conduct set forth
in this Agreement.
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(d) Actions of Others. The knowledge and/or actions, or failure to
act, of any director, officer, agent or employee of the Enterprise shall not be
imputed to the Director for purposes of determining the right to indemnification
under this Agreement.
6. Remedies of the Employee.
(a) Application. This Section 6 shall apply in the event of a
Dispute. For purposes of this Section, "Dispute" shall mean any of the following
events:
(i) a determination is made pursuant to Section 4 of this
Agreement that the Director is not entitled to indemnification under
this Agreement;
(ii) advancement of Expenses is not timely pursuant to Section 3
of this Agreement;
(iii) the determination of entitlement to be made pursuant to
Section 4(b) of this Agreement has not been made within ninety (90)
days after receipt by the Corporation of the request for
indemnification;
(iv) payment of indemnification is not made pursuant to Section
2(f) of this Agreement within ten (10) days after receipt by the
Corporation of a written request therefor; or
(v) payment of indemnification is not made within ten (10) days
after a determination has been made that the Director is entitled to
indemnification or such determination is deemed to have been made
pursuant to Section 4 of this Agreement.
(b) Adjudication. In the event of a Dispute, the Director shall be
entitled to an adjudication in an appropriate court of the State of Delaware, or
in any other court of competent jurisdiction, of the Director's entitlement to
such indemnification or advancement of Expenses. Alternatively, the Director at
the Director's option, may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the rules then obtaining of the American
Arbitration Association. The Director shall commence such proceeding seeking an
adjudication or an award in arbitration within one hundred eighty (180) days
following the date on which the Director first has the right to commence such
proceeding pursuant to this Section 6(b). The Corporation shall not oppose the
Director's right to seek any such adjudication or award in arbitration.
(c) De Novo Review. In the event that a determination shall have
been made pursuant to Section 4 of this Agreement that the Director is not
entitled to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 6 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and the Director shall not be prejudiced by
reason of that adverse determination. In any such proceeding or arbitration, the
Company shall have the burden of proving that the Director is not entitled to
indemnification or advancement of Expenses, as the case may be.
(d) Corporation Bound. If a determination shall have been made or
deemed to have been made pursuant to Section 4 of this Agreement that the
Director is entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding or arbitration absent (i) a
misstatement by the Director of a material fact, in connection with the request
for indemnification or a failure to disclose facts which would make Director's
statement not materially misleading, or (ii) a prohibition of such
indemnification under applicable law.
(e) Procedures Valid. The Corporation shall be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this
Section 6 that the procedures and presumptions of Sections 4 and 5 are not
valid, binding and enforceable and shall stipulate in any such court or before
any such arbitrator that the Corporation is bound by all the provisions of this
Agreement.
(f) Expenses of Adjudication. In the event that the Director,
pursuant to this Section 6, seeks a judicial adjudication of or an award in
arbitration to enforce the Director's rights under, or to recover damages for
breach of, this
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Agreement, the Director shall be entitled to recover from the Corporation, and
shall be indemnified by the Corporation against, any and all Expenses actually
and reasonably incurred by the Director in such adjudication or arbitration, but
only if and to the extent that the Director prevails therein.
7. Non-Exclusivity Insurance, Subrogation.
(a) Non-Exclusivity. The rights of Director to be indemnified and to
receive advancement of Expenses as provided by this Agreement shall not be
deemed exclusive of any other rights to which the Director may at any time be
entitled under applicable law, the Certificate of Incorporation, the By-Laws,
any agreement, a vote of stockholders, a resolution of directors or otherwise.
No amendment, alteration, rescission or replacement of this Agreement or any
provision hereof shall be effective as to the Director with respect to any
action taken or omitted by such the Director in the Director's Corporate Status
prior to such amendment, alteration, rescission or replacement.
(b) Insurance. The Corporation may maintain an insurance policy or
policies against liability arising out of this Agreement or otherwise. However,
nothing contained in this Agreement shall obligate the Corporation to maintain
any directors' and officers' liability insurance.
(c) Subrogation. In the event of any payment under this Agreement,
the Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Director, who shall execute all papers required and
take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Corporation to bring suit to enforce
such rights, subject to any conflicting rights of an insurer pursuant to a
policy obtained under Section 7(b) above.
(d) No Duplicative Payment. The Corporation shall not be liable
under this Agreement to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that the Director has otherwise actually received
such payment under any insurance policy, contract, agreement or otherwise.
8. Reliance. The Corporation acknowledges that in the course of the
Director's duties as such the Director shall at all times be entitled to rely on
and to comply with any request or direction, whether oral or written, of any
director, officer or employee of the Corporation, or person he reasonably
believes to be such director, officer or employee, and in no event shall the
exercises of the Director's duties as such pursuant to such request or direction
constitute willful misconduct or gross negligence on the part of the Director.
9. Director's Individual Capacity. The corporation further acknowledges
that the Director is undertaking to act as a director of the Corporation at the
request of the Corporation and solely in the Director's individual capacity and
not in any capacity as a director, officer, member, partner, employee, trustee
or other representative of any other corporation, partnership, association,
business trust, trust or similar organization or entity. The Corporation further
covenants and agrees to indemnify any such organization or entity from and
against any and all claims, threats, suits (whether instituted by the
Corporation or any other person or entity), damages, penalties, liabilities,
costs and expenses (including, without limitation, legal fees, costs and
disbursements) incurred, suffered or expended by or threatened against such
organization with respect to any action or inaction taken in the course of the
Director's duties as such director, including such claims, threats, suits,
damages, penalties, liabilities, costs or expenses as were caused by willful
misconduct or gross negligence on the part of the Director; provided, however,
that the foregoing shall not be deemed to limit any right of action the
Corporation may have against the Director for contribution or otherwise.
10. Reservation of Rights. The indemnification provided by this
Agreement shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under statute, agreement, vote of
stockholders or disinterested directors or otherwise, and shall continue after
the Director has ceased to be a director of the Corporation.
11. Amendment. The terms of this Agreement may be enlarged, modified or
altered only by an instrument in writing executed by all of the parties hereto.
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12. Waiver, Etc. Any waiver on the part of any party hereto of any
right or interest under this Agreement shall not constitute the waiver of any
other right or interest or any subsequent waiver of such right or interest. The
failure of any party at any time to require performance of any provision of this
Agreement shall not affect the right of such party to require full performance
thereof at any time thereafter. Any waiver by any party of a breach of any
provision of this Agreement shall not constitute a waiver of any subsequent
breach thereof and shall not nullify the effectiveness of such provision. The
failure by any party to give notice of a breach of any provision of this
Agreement shall not constitute a waiver of such breach.
13. Binding Effect. Each reference herein to any party shall be deemed
to include his or its successors and assigns, legal representatives, executors
or administrators.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
15. Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and this Agreement shall continue in full force and
effect except for any such invalid or unenforceable provision.
16. Captions. The captions throughout this Agreement are for
convenience only and are not intended to limit or be used in the interpretation
of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date hereinabove mentioned.
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Xxxxxx Industries, Inc. has entered into Indemnity Agreements in substantially
the form attached hereto with each of the directors listed below, each effective
as of the date set forth beside the director's name:
NAME EFFECTIVE DATE
Xxxxxxxx, Xxxxxx 3/5/91
Xxxxxxxx, Xxxxxxx 3/5/91
Xxxxxxx, Xxxxxx X. 3/5/91
Xxxxxx, Xxxx 3/5/91
Xxxxxx, Xxxxxx 3/5/91
Xxxxxxx, Xxxx 1/15/91, as amended
4/12/91 to clarify
effective date of
Indemnity Agreement
Xxxxx, Xxxxx 3/5/91
Xxxxxxxxx, Xxxxx 3/5/91
XxXxxxxxx, Xxxxxx 3/5/91
Xxxxxxxx, Xxxxxxx X. 12/10/91
