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EXHIBIT 10.9
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made as of the ____ day of
____________, 1999 between HomePlace of America, Inc., a Delaware corporation
(the "Corporation") and _____________________ ("Indemnitee").
WITNESSETH:
WHEREAS, the Corporation has adopted Sections 12.1 through 12.9 of
Article XII of its bylaws which grant to its officers, directors, employees and
agents the indemnification protection described in copies of these Sections of
the bylaws which are set forth on Schedule 1 attached hereto (the "Bylaw
Indemnification");
WHEREAS, Indemnitee is a director of the Corporation and as such is
performing valuable services for the Corporation; and
WHEREAS, pursuant to authority granted to the Corporation by its bylaws
and to induce Indemnitee to continue to serve as a director of the Corporation,
the Corporation is willing to contractually bind itself to extend to Indemnitee
the Bylaw Indemnification in accordance with and subject to the terms and
conditions of this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. COVENANT TO INDEMNIFY INDEMNITEE. The Corporation hereby
covenants and agrees to obligate itself to extend to the Indemnitee the Bylaw
Indemnification notwithstanding any modification or repeal of any bylaw
provision of the Corporation subsequent to the date hereof. Indemnitee agrees to
comply with the obligations imposed on him thereunder and, in the event that
expenses are to be advanced to Indemnitee by the Corporation pursuant to Section
12.2 of the attached provisions, Indemnitee shall sign and present to the
Corporation an undertaking to repay the advance if it shall ultimately be
determined that he is not entitled under this Agreement or under law
substantially in the form of Schedule 2 attached hereto.
2. LIMITATION ON IMPACT OF AGREEMENT. Notwithstanding anything
contained herein to the contrary, the Corporation shall not in any event be
required to indemnify Indemnitee in violation of any applicable provision of the
General Corporation Laws of the State of Delaware, as amended, nor shall any
provision of this Agreement be construed to deny Indemnitee any rights that he
may be entitled to under the laws of the State of Delaware or otherwise.
3. CONTINUED COVERAGE. The indemnification rights granted herein
shall continue after Indemnitee has ceased to be a director, officer, employee
or agent of the Corporation for all causes of action against Indemnitee arising
out of acts and events occurring prior to the termination of his relationship
with the Corporation.
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4. SEVERABILITY. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions and the invalid and unenforceable
provision shall be severed from this Agreement.
5. MISCELLANEOUS.
(a) This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of Delaware.
(b) This Agreement shall be binding upon Indemnitee and upon the
Corporation, its successors and assigns, and shall inure to the benefit of
Indemnitee, his heirs and personal representatives and to the benefit of the
Corporation, its successors and assigns.
(c) No amendment, modification, termination or cancellation of
this Agreement shall be effective, unless contained in a written instrument
signed by the parties hereto. No waiver of any breach or default hereunder shall
be deemed to constitute a waiver of any other breach or default nor of the same
breach or default on a future occasion.
(d) Any notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed duly delivered if hand
delivered or mailed, postage prepaid, by certified mail, return receipt
requested, addressed as set forth hereinafter or to such other address as the
party may designate in writing:
To the Corporation: HomePlace of America, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Attention: President
To Indemnitee:
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IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above written.
HOMEPLACE OF AMERICA, INC.
By:
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Its:
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Indemnitee
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SCHEDULE 1
ARTICLE XII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
SECTION 12.1. RIGHT TO INDEMNIFICATION.
(a) Each person who was or 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 Corporation), by reason of the fact that he or she is
or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, shall be
entitled to indemnification against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement to the fullest extent now or
hereafter permitted by applicable law as long as such person acted in good faith
and in a manner that such person reasonably believed to be in or not be opposed
to the best interests of the Corporation; provided, however, that the
Corporation shall indemnify any such person seeking indemnity in connection with
an action, suit or proceeding (or part thereof) initiated by such person only if
such action, suit or proceeding (or part thereof) was authorized by the Board of
Directors.
(b) The Corporation may, but shall not be obligated to, indemnify
any person who was or 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 Corporation), by reason of the fact that he or she is or was an
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, 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 settlement to
the fullest extent now or hereafter permitted by applicable law.
SECTION 12.2. ADVANCE PAYMENT OF EXPENSES. Expenses (including
reasonable attorneys' fees) incurred by any person who is or was an officer or
director of the corporation, or who is or was serving at the request of the
Corporation as an officer or director or another corporation, partnership, joint
venture, trust or other enterprise, in defending any civil, criminal,
administrative or investigative action, suit or proceeding, shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it is ultimately determined that he or she is not entitled
under applicable law to be indemnified by the corporation. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
SECTION 12.3. EMPLOYEES OR AGENTS. Persons who are not covered by
Section 12.1 and who are or were employees or agents of the Corporation, or who
are or were serving at the request of the Corporation as employees or agents of
another corporation, partnership, joint
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venture, trust, employee benefit plan or other enterprise, may be indemnified to
the extent authorized at any time or from time to time by the Board of
Directors.
SECTION 12.4. CONTRACT RIGHTS. The provisions of this Article shall be
a contract between the Corporation and each director or officer to which this
Article applies. No repeal or modification of these Bylaws shall invalidate or
detract from any right or obligations with respect to any state of facts
existing prior to the time of such repeal or modification.
SECTION 12.5. RIGHTS NON-EXCLUSIVE. The indemnification and advancement
of expenses provided by or granted pursuant to this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
SECTION 12.6. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him or her and incurred by him or her in any such capacity, or arising out of
his or her status as such, whether or not the Corporation would have the power
to indemnify him or her against such liability under the provisions of this
Article or of applicable law.
SECTION 12.7. DEFINITIONS. For purposes of this Article, references to
"the Corporation" shall include, in addition to the resulting corporation, any
constituent Corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this Article with respect to the
resulting or surviving Corporation as he or she would have with respect to such
constituent Corporation if its separate existence had continued, and references
to "other enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted in good faith and in
a manner he or she reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this Article.
SECTION 12.8. CONTINUED COVERAGE. The indemnification and advancement of
expenses
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provided by, or granted pursuant to this Article shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director or officer and shall inure to the benefit of the heirs, executors
and administrators of such person.
SECTION 12.9. CERTAIN LIMITATIONS. Notwithstanding any provision of
this Article XII to the contrary, no person who was a director or officer of
HomePlace Holding, Inc. or HomePlace of America, Inc., or any of their
respective subsidiaries, prior to the effective time of the merger of Waccamaw
Corporation with and into HomePlace of America, Inc. shall be entitled to
indemnification or advancement of expenses for events or occurrences that
occurred prior to such effective time solely by operation of this Article XII.
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SCHEDULE 2
UNDERTAKING TO REPAY
RE: [Description of Action]
I, ________________, by execution of this instrument do hereby promise
and agree to repay all defense costs and expenses advanced to me by HomePlace of
America, Inc. (the "Corporation") in connection with the above-referenced action
or proceeding if it shall be ultimately determined that I am not entitled under
this Agreement or applicable law to be indemnified by the Corporation.
IN WITNESS WHEREOF, I have hereunto affixed my hand this ___ day of
_________________.
__________________________________ (SEAL)
