Exhibit 10(q)
Indemnification Agreement
THIS AGREEMENT is made and entered into this ___ day of November, 1996 between
Xxxxxx Corporation, a Delaware corporation ("Corporation"), and
______________("Officer").
Witnesseth That:
WHEREAS, Officer, an officer of Corporation, performs a valuable service in such
capacity for Corporation; and
WHEREAS, Corporation has adopted By-Laws (the "By-Laws") providing for the
indemnification of the officers and directors of Corporation pursuant to the
Delaware General Corporation Law, as amended (the "Code"); and
WHEREAS, the Code by its non-exclusive nature and the By-Laws by express
provision, permit contracts between Corporation and its directors and officers
with respect to indemnification of such officers; and
WHEREAS, in accordance with the authorization as provided by the Code,
Corporation has purchased and presently maintains a policy or policies of
Directors and Officers Liability Insurance ("D & O Insurance"), covering certain
liabilities which may be incurred by its directors and officers in their
performance as directors and officers of Corporation; and
WHEREAS, there exists general uncertainty as to the extent of protection which
will be afforded officers of the Corporation by such D & O Insurance and by
statutory and bylaw indemnification provisions; and
WHEREAS, in order to induce Officer to continue to serve as an officer of
Corporation, Corporation has determined and agreed to enter into this contract
with Officer;
NOW, THEREFORE, in consideration of Officer's continued service as an officer
after the date hereof, the parties hereto agree as follows:
1. Indemnity of Officer. Pursuant to the By-Laws and subject only to the
exclusions set forth in Section 2 hereof, Corporation hereby agrees to hold
harmless and indemnify Officer against any and all expenses and loss
(including
inter alia, attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) actually and reasonably incurred
by Officer in connection with the investigation, defense or appeal of any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including an action by or in the
right of Corporation) to which Officer is, was or at any time becomes a
party, or is threatened to be made a party, by reason of the fact that
Officer is or was an officer of Corporation, or is or was serving or at any
time serves at the request of Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise.
2. Limitations on Indemnity. No indemnity pursuant to Section 1 hereof shall
be paid by Corporation:
(a) except to the extent the aggregate of losses to be indemnified
pursuant to Section 1 exceeds the amount of such losses for which
Officer is indemnified either pursuant to the Code or pursuant to any
D & O Insurance purchased and maintained by Corporation;
(b) in respect to remuneration paid to Officer if such remuneration was in
violation of law;
(c) on account of any suit in which judgment is rendered against Officer
for an accounting of profits made from the purchase or sale by Officer
of securities of Corporation pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any federal, state or local statutory law;
(d) on account of Officer's conduct which Corporation's Board of Directors
determines was knowingly fraudulent, deliberately dishonest, knowingly
contrary to Corporation's policies, or constituted willful misconduct;
or
(e) if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
3. Continuation of Obligations. All agreements and obligations of Corporation
contained herein shall continue during the period Officer is an officer of
Corporation (or is or was serving at the request of Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise) and shall continue thereafter so
long as Officer shall be subject to any possible claim or threatened,
pending or completed action, suit or proceeding whether civil, criminal,
administrative or investigative, by reason of the fact that Officer was an
officer of Corporation or serving in any other capacity referred to herein.
4. Notification and Defense of Claim. Promptly after receipt by Officer of
notice of the commencement of any action, suit or proceeding, Officer will,
if a claim in respect thereof is to be made against Corporation under this
Agreement, notify Corporation of the commencement thereof; but the omission
so to notify Corporation will not relieve it from any liability which it
may have to Officer otherwise than under this Agreement. With respect to
any such action, suit or proceeding as to which Officer notifies
Corporation of the commencement thereof:
(a) Corporation will be entitled to participate therein at its own
expense;
(b) except as otherwise provided below, to the extent that it may wish,
Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
satisfactory to Officer. After notice from Corporation to Officer of
its election so as to assume the defense thereof, Corporation will not
be liable to Officer under this Agreement for any legal or other
expenses subsequently incurred by Officer in connection with the
defense thereof other than reasonable costs of investigation or as
otherwise provided below. Officer shall have the right to employ its
counsel in such action, suit or proceeding but the fees and expenses
of such own counsel incurred after notice from Corporation of its
assumption of the defense thereof shall be at the expense of Officer
unless (i) the employment of counsel by Officer has been authorized by
Corporation, (ii) Corporation shall have reasonably concluded that
there may be a conflict of interest between Corporation and Officer in
the conduct of the defense of such action or (iii) Corporation shall
not in fact have employed counsel to assume the defense of such action
for which indemnification is provided by this Agreement, in each of
which cases the fees and expenses of counsel shall be at the expense
of Corporation. Corporation shall not be entitled to assume the
defense of any action, suit or proceeding brought by or on behalf of
Corporation or as to which Corporation shall have made the conclusion
provided for in (ii) above; and
(c) Corporation shall not be liable to indemnify Officer under this
Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. Corporation shall not settle any
action or claim in any manner which would impose any penalty or
limitation on Officer without Officer's written consent. Neither
Corporation nor Officer will unreasonably withhold its consent to any
proposed settlement.
5. Advancement and Repayment of Expenses.
(a) In the event that Officer employs his own counsel pursuant to Section
4(b) (i) through (iii) above in any action other than one by
Corporation (except a shareholders' derivative action), Corporation
shall advance to Officer, prior to any final disposition of any
threatened or pending action, suit or proceeding, whether civil,
criminal, administrative or investigative, and prior to any
determination by Corporation's Board of Directors pursuant to Section
2(d) above, any and all reasonable expenses (including legal fees and
expenses) incurred in investigating or defending any such action, suit
or proceeding within ten (10) days after receiving copies of invoices
presented to Officer for such expenses.
(b) Officer agrees that Officer will reimburse Corporation for all
reasonable expenses paid by Corporation in defending any civil or
criminal action, suit or proceeding against Officer in the event and
only to the extent it shall be ultimately determined that Officer is
not entitled, under the provisions of the Code, the By-Laws, this
Agreement or otherwise, to be indemnified by Corporation for such
expenses.
6. Enforcement. Corporation expressly confirms and agrees that it has entered
into this Agreement and assumed the obligations imposed on Corporation
hereby in order to induce Officer to continue as an officer of Corporation,
and acknowledges that Officer is relying upon this Agreement in continuing
in such capacity.
7. Separability. 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 hereof.
8. Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
9. Binding Effect. This Agreement shall be binding upon Officer and upon
Corporation, its successors and assigns, and shall inure to the benefit of
Officer, his heirs, personal representatives and assigns and to the benefit
of Corporation, its successors and assigns.
10. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed
by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of
the day and year first above written.
XXXXXX CORPORATION
By:
[ ]
Chairman of the Board
and
[ ]
Officer
