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EXHIBIT 6.8
FORM OF INDEMNIFICATION AGREEMENT
FOR EACH OF THE FOLLOWING LIST OF
OFFICERS AND DIRECTORS
NAME POSITION
---- --------
Xxxx X. Xxxxxx Chairman of the Board, Chief Executive
Officer, Chief Financial Officer and
Secretary
Xxxxxx Xxxxx President
Xxxxxxxxx Xxxxxxxxxxx Director
Xxxxxxx X. Xxxxx Director
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INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is dated as of
September 6, 2000, by and between BANNER CENTRAL FINANCE COMPANY, a Delaware
corporation (the "Company"), and the director and/or officer of the Company
whose name appears on the signature page of this Agreement ("Indemnitee").
WHEREAS, highly competent persons are becoming more reluctant to serve
publicly-held corporations as directors, officers, or in other capacities unless
they are provided with reasonable protection through insurance or
indemnification against risks of claims and actions against them arising out of
their service to and activities on behalf of the corporations;
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that the Company should act to assure such persons that there will be
increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent, and necessary for the Company
contractually to oblige itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified; and
WHEREAS, Indemnitee is willing to serve and to take on additional
service for or on behalf of the Company on the condition that Indemnitee be so
indemnified.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, the parties agree as follows:
1. Definitions. For purposes of this Agreement:
a. "Disinterested Director" shall mean a director of the Company
who is not or was not a party to the Proceeding in respect of which
indemnification is being sought by Indemnitee.
b. "Expenses" shall include all reasonable attorneys' fees and
costs, retainers, court costs, transcripts, 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
customarily incurred in connection with asserting or defending claims.
c. "Independent Counsel" shall mean a law firm or lawyer that
neither is presently nor in the past five years has been retained to represent:
(i) the Company or Indemnitee 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 firm or person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an action to
determine Indemnitee's right to indemnification
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under this Agreement. All fees and expenses of the Independent Counsel incurred
in connection with acting pursuant to this Agreement shall be borne by the
Company.
d. "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative, provided,
however, that the term "Proceeding" shall include any action instituted by an
Indemnitee (other than an action to enforce indemnification rights under this
Agreement) only if such action is authorized by the Board.
2. Service by Indemnitee. Indemnitee agrees to begin or to continue to
serve the Company or other corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise affiliated with the Company (all of
which are collectively referred to as an "Affiliate") as an officer, director,
advisory director, or board committee member. Notwithstanding anything contained
herein, this Agreement shall not create a contract of employment between the
Company and Indemnitee and the termination of Indemnitee's relationship with the
Company or an Affiliate by either party hereto shall not be restricted by this
Agreement.
3. Indemnification. The Company shall indemnify indemnitee for, and hold
Indemnitee harmless from and against, any losses, liabilities, claims,
judgments, fines or Expenses at any time incurred by or assessed against
Indemnitee arising out of or in connection with the service of Indemnitee as an
officer, director, advisory director or board committee member of the Company or
of an Affiliate (collectively referred to as an "Officer or Director") to the
fullest extent permitted by the laws of the State of Delaware in effect on the
date hereof or as such laws may from time to time hereafter be amended to
increase the scope of such permitted indemnification; provided, however, the
Company shall indemnify Indemnitee in connection with a Proceeding instituted by
Indemnitee (other than an action to enforce indemnification rights under this
agreement), only if such proceeding is authorized by the Board. Without
diminishing the scope of the indemnification provided by this Section 3, the
rights of indemnification of Indemnitee provided hereunder shall include but
shall not be limited to those rights set forth hereinafter.
4. Action or Proceeding Other Than an Action by or in the Right of the
Company. Indemnitee shall be entitled to the indemnification rights provided
herein if Indemnitee is a person who was or is made a party or is threatened to
be made a party to any pending, completed or threatened Proceeding, other than
an action by or in the right of the Company, by reason of (a) the fact that
Indemnitee is or was an Officer or Director of the Company or any other entity
which Indemnitee is or was serving at the request of the Company, or (b)
anything done or not done by Indemnitee in any such capacity. Pursuant to this
Section, Indemnitee shall be indemnified against Expenses, losses, claims,
liabilities, judgments, fines and amounts paid in settlement incurred by
Indemnitee or on Indemnitee's behalf in connection with any Proceeding, if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company, did not receive an
improper personal benefit, and, with respect to any criminal proceeding, had no
reasonable cause to believe his conduct was unlawful.
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5. Actions by or in the Right of the Company. Indemnitee shall be
entitled to the indemnification rights provided herein if Indemnitee is a person
who was or is made a party or is threatened to be made a party to any pending,
completed or threatened Proceeding brought by or in the right of the Company to
procure a judgment in its favor by reason of (a) the fact that Indemnitee is or
was an Officer or Director of the Company or any other entity which Indemnitee
is or was serving at the request of the Company, or (b) anything done or not
done by Indemnitee in any such capacity. Pursuant to this Section, Indemnitee
shall be indemnified against Expenses, losses, claims, liabilities, judgments,
fines and amounts paid in settlement incurred by Indemnitee or on Indemnitee's
behalf in connection with any Proceeding if Indemnitee acted in good faith and
in a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company. Notwithstanding the foregoing provisions of this
Section, no such indemnification shall be made in respect of any claim, issue or
matter as to which Delaware law expressly prohibits such indemnification by
reason of an adjudication of liability of Indemnitee to the Company; provided,
however, that in such event such indemnification shall nevertheless be made by
the Company to the extent that the Court of Chancery of the State of Delaware or
the court in which such action or suit was brought shall determine equitable
under the circumstances.
6. Indemnification for Costs, Charges and Expenses of Party Who is
Wholly or Partly Successful. Notwithstanding any provision of this Agreement, to
the extent that Indemnitee has been wholly successful on the merits or otherwise
involved in any Proceeding on any claim, issue or matter, Indemnitee shall be
indemnified against all Expenses incurred by Indemnitee or on Indemnitee's
behalf in connection therewith to the extent permitted by Delaware law. If
Indemnitee is not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims, issues or
matters in such Proceeding, the Company shall indemnify Indemnitee to the
maximum extent permitted by law, against all Expenses, judgments, penalties,
fines and amounts paid in settlement, incurred by Indemnitee with each
successfully resolved claim, issue or matter. For purposes of this Section and
without limitation, the termination of any such claim, issue or matter by
dismissal with or without prejudice shall be deemed to be a successful result as
to such claim, issue or matter.
7. Indemnification for Expenses of a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is a witness in any
Proceeding in which the Indemnitee is not a party by reason of the fact that
Indemnitee is or was an Officer or Director of the Company or any other entity
which Indemnitee is or was serving at the request of the Company, Indemnitee
shall be indemnified by the Company against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee's behalf in connection therewith.
8. Advancement of Expenses and Costs. All Expenses incurred by or on
behalf of Indemnitee (or reasonably expected by Indemnitee to be incurred by
Indemnitee within three months) shall be paid by the Company in advance of the
final disposition of such proceeding within twenty days after the receipt by the
Company of a statement or statements from Indemnitee requesting from time to
time such advance or advances. Indemnitee's entitlement to such advancement of
Expenses shall include those incurred in connection with any proceeding by
Indemnitee seeking an adjudication or award in arbitration pursuant to this
Agreement. Such statement or statements shall reasonably evidence such Expenses
incurred (or reasonably expected to be incurred) by Indemnitee in connection
therewith and shall include or
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be accompanied by a written undertaking by or on behalf of Indemnitee to repay
such amount if it shall ultimately be determined that Indemnitee is not entitled
to be indemnified therefor pursuant to the terms of this Agreement.
9. Procedure for Determination of Entitlement to Indemnification.
a. When seeking indemnification under this Agreement, Indemnitee
shall submit a written request for indemnification to the Company. Such request
shall include documentation or information which is reasonably necessary for the
Company to make a determination of Indemnitee's entitlement to indemnification
hereunder and which is reasonably available to Indemnitee. Determination of
Indemnitee's entitlement to indemnification shall be made not later than 30 days
after receipt by the Company of Indemnitee's written request for
indemnification. The Secretary of the Company shall, promptly upon receipt of
Indemnitee's request for indemnification, advise the Board that Indemnitee has
made such request for indemnification.
b. The entitlement of Indemnitee to indemnification under this
Agreement shall be determined in each specific case by the Board by a majority
vote of a quorum consisting of Disinterested Directors. If such a quorum is not
obtainable or if the Board by the majority vote of Disinterested Directors so
directs, the determination shall be made by Independent Counsel.
c. In the event the determination of entitlement is to be made by
Independent Counsel, such Independent Counsel shall be selected by the Board and
approved by Indemnitee. Upon failure of the Board to so select such Independent
Counsel or upon failure of Indemnitee to so approve, such Independent Counsel
shall be selected by the Court of Chancery of the State of Delaware or such
other person as the Court of Chancery shall designate to make such selection.
d. If the Board or Independent Counsel shall have determined that
Indemnitee is not entitled to indemnification to the full extent of Indemnitee's
request, Indemnitee shall have the right to seek entitlement to indemnification
in accordance with the procedures set forth in Section 10 hereof.
10. Effect of Certain Proceedings.
a. If the person or persons empowered to make a determination
with respect to entitlement to indemnification shall have failed to make the
requested determination within 30 days after receipt by the Company of such
request, the requisite determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be absolutely entitled to such
indemnification, absent (i) misrepresentation by Indemnitee of a material fact
in the request for indemnification or (ii) a final judicial determination that
all or any part of such indemnification is expressly prohibited by law. The
termination of any Proceeding by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
adversely affect the rights of Indemnitee to indemnification hereunder except as
may be specifically provided herein, or create a presumption that Indemnitee did
not act in good faith, receive an improper personal benefit or act in a manner
which Indemnitee reasonably
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believed to be in or not opposed to the best interests of the Company or create
a presumption that (with respect to any criminal action or proceeding)
Indemnitee had reasonable cause to believe that Indemnitee's conduct was
unlawful.
b. For purposes of any determination of good faith hereunder,
Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is
based on the records or books of account of the Company or an Affiliate,
including financial statements, or on information supplied to Indemnitee by the
officers of the Company or an Affiliate in the course of their duties, or on the
advice of legal counsel for the Company or an Affiliate or on information or
records given or reports made to the Company or an Affiliate by an independent
certified public accountant or by an appraiser or other expert selected with
reasonable care by the Company or an Affiliate. The provisions of this Section
10(b) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have met the applicable
standard of conduct set forth in this Agreement.
c. The knowledge and/or actions, or failure to act, of any
director, officer, agent or employee of the Company or an Affiliate shall not be
imputed to Indemnitee for purposes of determining the right to indemnification
under this Agreement.
11. Remedies in Cases of Determination not to Indemnify or to Advance
Expenses.
a. In the event that (i) a determination is made that Indemnitee
is not entitled to indemnification hereunder, (ii) advances are not made
pursuant to Section 8 or (iii) payment has not been timely made following a
determination of entitlement to indemnification pursuant to Sections 9 and 10,
Indemnitee shall be entitled to seek a final adjudication in an appropriate
court of the State of Delaware or any other court of competent jurisdiction of
Indemnitee's entitlement to such indemnification in advance. Alternatively,
Indemnitee at Indemnitee's option may seek an award in arbitration to be
conducted by a panel of three arbitrators in Los Angeles County, California,
pursuant to the rules of the American Arbitration Association then prevailing,
such award to be made within sixty days following the filing of the demand for
arbitration. The Company shall not oppose Indemnitee's right to seek arbitration
of any such claim.
b. In the event a determination has been made, in whole or in
part, that Indemnitee is not entitled to indemnification, any such judicial
proceeding or arbitration shall be made de novo and Indemnitee shall not be
prejudiced by reason of any prior determination that Indemnitee is not entitled
to indemnification.
c. If a determination is made or deemed to have been made
pursuant to the terms of Section 10 or Section 11 hereof that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration in the absence of (i) a misrepresentation
of a material fact by Indemnitee or (ii) a final judicial determination that all
or any part of such indemnification is expressly prohibited by law.
d. The Company and Indemnitee agree that they shall be precluded
from asserting that the procedures and presumptions of this Agreement are not
valid, binding and
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enforceable. The Company and Indemnitee further agree to stipulate in any such
court or before any such arbitrators that the Company and Indemnitee are bound
by all the provisions of this Agreement and are precluded from making any
assertion to the contrary.
e. To the extent deemed appropriate by the arbitrators or the
court, interest shall be paid by the Company to Indemnitee at a reasonable
interest rate, for amounts which the Company indemnifies the Indemnitee.
12. Expenses Incurred by Indemnitee to Enforce this Agreement.
Reasonable Expenses incurred by Indemnitee in connection with the preparation
and submission of Indemnitee's request for indemnification hereunder shall be
borne by the Company. In the event that Indemnitee is a party to or intervenes
in any proceeding in which the validity or enforceability of this Agreement is
at issue or seeks an adjudication or award in arbitration to enforce
Indemnitee's rights under, or to recover damages for breach of, this Agreement,
Indemnitee, if Indemnitee prevails in whole in such action, shall be entitled to
recover from the Company and shall be indemnified by the Company against, any
Expenses incurred by Indemnitee. If it is determined that Indemnitee is entitled
to indemnification of part (but not all) of the indemnification so requested,
Expenses incurred in seeking enforcement of such partial indemnification shall
be reasonably prorated among such claims, issues or matters.
13. Non-Exclusivity. The rights of indemnification and to receive
advances as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under applicable
law, certificate of incorporation, the Bylaws, any agreement, a vote of
stockholders or a resolution of Directors, or otherwise. No amendment,
alteration, rescission or replacement of this Agreement or any provision hereof
shall be effective as to Indemnitee with respect to any action taken or omitted
by such Indemnitee in Indemnitee's position with the Company or an Affiliate or
any other entity which Indemnitee is or was serving at the request of the
Company prior to such amendment, alteration, rescission or replacement.
14. Duration of Agreement. This Agreement shall apply to any claim
asserted and any Expenses incurred in connection with any claim asserted on or
after the effective date of this Agreement and shall continue until and
terminate upon the later of: (a) 10 years after Indemnitee has ceased to occupy
any of the positions or have any of the relationships described in Sections 3, 4
or 5 of this Agreement; or (b) the final termination of all pending or
threatened Proceedings of the kind described herein with respect to Indemnitee.
This Agreement shall be binding upon the Company and its successors and assigns
and shall inure to the benefit of Indemnitee and Indemnitee's spouse, assigns,
heirs, devisee, executors, administrators or other legal representatives.
15. Severability. Should any part, term or condition hereof be declared
illegal or unenforceable or in conflict with any other law, the validity of the
remaining portions or provisions of this Agreement shall not be affected
thereby, and the illegal or unenforceable portions of the Agreement shall be and
hereby are redrafted to conform with applicable law, while leaving the remaining
portions of this Agreement intact.
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16. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same document.
17. Headings. Section headings are for convenience only and do not
control or affect the meaning or interpretation of any terms or provisions of
this Agreement.
18. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto, provided, however, that any such mutually agreed upon
supplement, amendment or modification shall not require stockholder approval if
such modification, amendment or supplement is made to conform to any amendment
or revision of the Delaware General Corporation Law which expands the
Indemnitee's right to indemnification thereunder or is otherwise beneficial to
Indemnitee or in the sole judgment of the Board of the Company, does not
materially and adversely affect the rights and protection of the Company.
19. No Duplicative Payment. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.
20. Notices. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing (including telecopier or
similar writing) and shall be deemed to have been given at the time when mailed
in any general or branch office of the United States Postal Service, enclosed in
a registered or certified postpaid envelope, or sent by Federal Express or other
similar overnight courier service, addressed to the address of the parties
stated below or to such changed address as such party may have fixed by notice
or, if given by telecopier, when such telecopy is transmitted and the
appropriate answerback is received.
a. If to Indemnitee, to the address appearing on the signature
page hereof.
b. If to the Company to:
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Secretary
21. Governing Law. This Agreement shall be governed by the laws of the
State of California without giving effect to the principles of conflicts of law.
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22. Entire Agreement. This Agreement sets forth the entire agreement
among the parties with respect to its subject matter. No waiver of any provision
or breach of this Agreement shall be effective unless such waiver is in writing
and signed by the party against which enforcement of such waiver is sought. A
waiver by any party of any breach or violation of this Agreement shall not be
deemed or construed as a waiver of any subsequent breach or violation thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
BANNER CENTRAL FINANCE COMPANY:
By:
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Xxxx X. Cypress
Chief Executive Officer
and President
INDEMNITEE:
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Signature
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Print Name
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Address and Telephone
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