1
EXHIBIT 6.18
INDEMNIFICATION AGREEMENT, DATED MAY 29, 1996, BY
AND BETWEEN THE COMPANY AND XXXXXX XXXXXXX
2
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made by and between KCD
Holdings Incorporated, a Nevada Corporation ("KCD"), and Xxxxxx Xxxxxxx
("Director") as of May 29, 1996, with reference to the following facts:
A. KCD desires that Director serve as a member of KCD's Board of
Directors and Director is willing to do so provided that KCD indemnifies
Director against certain potential liability.
B. KCD is willing to provide such indemnity on the terms and
conditions set forth in this Agreement.
ACCORDINGLY, the parties now agree as follows.
Article 1
Definitions
Capitalized words and phrases used in this Agreement are defined as
follows:
1.1 "Agent" means any person who is or was a director, officer,
employee or other agent of KCD.
1.2 "Expenses" includes attorney's fees and other expenses actually and
reasonably incurred in establishing a right to indemnification under Article 2
or 3.
1.3 "Derivative Proceeding" means any threatened, pending or completed
action by or in the right of KCD to obtain a judgment in KCD's favor, in which
Director was or is or a defendant or is threatened to be made a defendant by
reason of the fact that Director is or was an Agent. The term does not include
an action by or in the right of KCD to obtain a judgment in KCD's favor.
1.4 "Primary Proceeding" means any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or investigative,
in which Director is or was a defendant, or is threatened to be made a defendant
by reason of the fact that Director is or was an Agent. The term does not
include an action by or in the right of KCD to obtain a judgment in KCD's favor.
Article 2
Indemnification
2.1 Primary Proceeding. KCD shall indemnify Director against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with a Primary Proceeding, but only if (a) Director acted in good
faith and in a manner that Director
3
reasonably believed to be in the best interests of KCD and (b) in the case of a
criminal proceeding, Director had no reasonable cause to believe that Director's
conduct was unlawful.
2.2 Termination. Termination of a Primary Proceeding by judgment,
order, settlement, conviction or plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that Director failed to satisfy the
conditions in clauses (a) and (b) of Section 2.1.
2.3 Derivative Proceeding. KCD shall indemnify Director against
expenses actually and reasonably incurred by Director in connection with the
defense or settlement of any Derivative Proceeding if Director acted in good
faith, in a manner that Director believed to be in the best interest of KCD's
shareholders.
2.4 Authorization. Except as provided in Article 3, KCD shall indemnify
Director under this Article 2 only upon authorization in the specific case, upon
a determination by any of the following that indemnification of Director is
proper in the circumstances because Director has met the applicable standard of
conduct set forth in Section 2.1 or 2.3:
a. A majority vote of a quorum of KCD's Board of Directors,
which quorum shall consist of directors who are not parties to the proceeding;
or, if such a quorum is not obtainable, by independent legal counsel in a
written opinion;
b. Approval of shareholders as provided in, or otherwise
complying with, Section 320 of the Nevada Business Corporation Act, with the
shares owned by Director not being entitled to vote thereon; or
c. The court where the proceeding is or was pending, upon
application by KCD, Director or the attorney or another person rendering
services in connection with the defense, whether or not such application is
opposed by KCD.
Article 3
Successful Defense
To the extent that Director is successful on the merits in defense of
any Primary Proceeding or Derivative Proceeding, or in defense of any claim,
issue or matter in such a proceeding, KCD shall indemnify Director against
expenses actually and reasonably incurred by Director in connection with it.
Article 4
Advances
KCD shall advance expenses incurred in defending any Primary Proceeding
or Derivative Proceeding prior to its final disposition upon receipt of a
written undertaking, by or on behalf of
2
4
Director, in form satisfactory to KCD, to repay such amount advanced if it shall
be determined ultimately that Director is not entitled to be indemnified as
provided in this Agreement.
Article 5
Additional Conditions and Exceptions
5.1 Effect of Section. Notwithstanding any other provision of this
Agreement, KCD's obligations under this Agreement to indemnify or make advances
to or on behalf of Director shall also be subject to the conditions and
exceptions in Sections 5.2 through 5.7.
5.2 Notice and Information. Director shall give KCD (a) notice in
writing as soon as possible of any claim made against Director for which
indemnity will or could be sought under this Agreement and (b) such information
and cooperation (including executing documents and instruments) as KCD may
reasonably request in connection with any Primary Proceeding or Derivative
Proceeding.
5.3 Consent. No costs, charges or expenses for which indemnity shall be
sought under this Agreement shall be incurred without KCD's consent, which
consent shall not be unreasonably withheld.
5.4 Court Decisions. KCD shall not indemnify Director in respect of any
claim, issue or matter as to which a court adjudges Director liable to KCD in
performing Director's duty to KCD and KCD's shareholders, unless the court shall
determine upon application that, in view of all the circumstances of the case,
Director is fairly and reasonably entitled to indemnify for expenses, and then
only to the extent that the court shall determine.
5.5 Settlements
a. KCD shall not indemnify Director for amounts paid in
settling or otherwise disposing of a pending action without court approval, or
for expenses incurred in defending a pending action that is settled or otherwise
disposed of without court approval.
b. KCD shall not be obligated to indemnify Director for
amounts paid in connection with any settlement to which KCD has not consented or
agreed.
c. If Director unreasonably fails to enter into a settlement
offered or assented to by the opposing party or parties in any Primary
Proceeding or Derivative Proceeding and the settlement is acceptable to KCD,
then, notwithstanding any provision of this Agreement, KCD's obligations to
indemnify or advance expenses to or on behalf of Director shall not exceed the
amount at which settlement could have been made, plus expenses incurred by
Director before the settlement could reasonably have been effected.
3
5
5.6 Conflict with Other Provisions. Except as provided in Article 3 or
with the approval of shareholders as described in Section 2.4(b), this Agreement
shall not obligate KCD to indemnify or advance expenses to or on behalf of
Director in any circumstances where it reasonably appears to KCD that:
a. It would be inconsistent with a provision of KCD's Articles
of Incorporation, Bylaws, a resolution of shareholders, or an agreement in
effect at the time of the accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred of other amounts were paid, which
prohibits or otherwise permits indemnification; or
b. It would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
5.7 Other Limitations. KCD shall have no obligation under this
Agreement to indemnify or advance expenses to or on behalf of Director:
a. For amounts for which payment is made to Director under a
valid and collectible insurance policy or other source, except in respect of any
deductible amount or excess beyond the amount of payment under such policy or
other sources;
b. For amounts for which Director is indemnified by KCD other
than pursuant to this Agreement;
c. For acts or omissions of Director that involve intentional
misconduct or knowing and culpable violation of law;
d. Based upon or attributable to any transaction from which
Director derived improper personal benefit or advantage to which Director was
not legally entitled;
e. For acts or omissions that show a reckless disregard for
Director's duty to KCD or KCD's shareholders in circumstances in which Director
was aware, or should have been aware in the ordinary course of performing
Director's duties, of a risk of serious injury to KCD or KCD's shareholders;
f. For acts or omissions that constitute an unexcused pattern
of inattention amounting to abdication of Director's duty to KCD or KCD's
shareholders;
g. For transactions governed by Section 140 or 300 of the
Nevada Business Corporation Act;
h. For an accounting of profits made from the purchase or sale
by Director of securities of KCD within the meaning of Section 16(b) of the
Securities Exchange Act of 1934 or similar provisions of any state law; or
4
6
i. If in KCD's reasonable judgment Director fails to cooperate
with KCD or to provide all information reasonably requested by KCD in connection
with the defense of any action in which KCD or Director are defendants.
Article 6
Other Provisions
6.1 Subrogation. In the event of payment to Director under this
Agreement, KCD is hereby subrogated to the extent of such payment to all
Director's rights of recovery.
6.2 Reports. KCD shall have the right to make all reports to
shareholders or others regarding indemnification and/or advances relating to
this Agreement, as KCD deems necessary or appropriate.
6.3 Termination. This Agreement shall terminate upon any of the
following events:
a. Mutual agreement of the parties; or
b. Director's resignation or termination, for any reason, as a
director of KCD.
6.4 Effect of Termination. KCD shall have no obligation to Director
under this Agreement for any event, act or omission arising after termination of
this Agreement. Director's rights under this Agreement arising from events, acts
and/or omissions prior to termination shall survive termination of this
Agreement under Section 6.3(b).
6.5 Assignment and Third Parties. Director shall have no right or power
to assign or delegate any rights or obligation under this Agreement. This
Agreement is not intended to confer any benefits or rights on any other or
successor member of KCD's Board of Directors or on any other third party.
6.6 Notices. All notice or other communications provided for in this
Agreement shall be in writing and shall be deemed delivered upon personal
delivery or 48 hours after deposit with the United States Postal Service as
registered or certified mail, postage prepaid and addressed as follows:
a. If to KCD, to the principal office of KCD in the State of
California, marked "Attention: President"; or
b. If to Director, to the most recent address for Director
appearing in KCD's records.
5
7
6.7 Entire Agreement. This Agreement, including the attached exhibit,
constitutes the entire agreement between the parties pertaining to the subject
matter of this Agreement and completely supersedes all other agreements, all
summaries and drafts of agreements, understanding, negotiations and discussions
among the parties pertaining to such subject matter, whether oral or written.
6.8 Governing Law. Nothing in this Agreement shall diminish or
otherwise restrict Director's right to indemnification under any provision of
the Articles of Incorporation or Bylaws of KCD, as amended, or under Nevada law.
This Agreement and any agreement to adopt or amend this Agreement shall be
construed and enforced in accordance with laws applicable to contracts made and
to be performed within the State of Nevada.
6.9 Severable Provisions. The provisions of this Agreement are
severable, and if any provision is determined to be illegal or otherwise
unenforceable, in whole or in part, then the remaining provisions, and any
partially unenforceable provisions to the extent enforceable, shall nevertheless
be binding and enforceable and shall be construed as closely as possible to
their original meanings.
6.10 Rules of Construction. This Agreement has been negotiated by the
parties and is to be interpreted according to its fair meaning as if the parties
had prepared it together and not strictly for or against any party. References
in this Agreement to "ARTICLES" and "SECTIONS" refer to Articles and Sections of
this Agreement, unless the context expressly indicates otherwise. References to
"PROVISIONS" of this Agreement refer to the terms, conditions and promises
contained in this Agreement. References in this Agreement to laws and
regulations refer to such laws and regulations as in effect on this date and to
the corresponding provisions, if any, of any successor law or regulation. At
each place in this Agreement where the context so requires, the masculine,
feminine or neuter gender includes the others and the singular or plural number
includes the other. Forms of the verb "INCLUDING" mean "including without
limitation." "OR" is inclusive and includes "and." The introductory headings at
the beginning of Articles and Section of this Agreement are solely for the
convenience of the parties and do not affect any provisions of this Agreement.
6.11 Amendment or Waiver. No amendment or waiver of any provision of
this Agreement shall be effective unless and until an instrument reflecting the
amendment or waive has been signed by the party against whom it is sought to be
enforced.
6.12 Arbitration. If a dispute arises, those involved in the dispute
shall first consult together in good faith to try to settle such dispute. If the
dispute is not settled after consultation, or if the parties fail to enter into
such consultation, then they shall arbitrate in accordance with the procedures
set forth in the attached Exhibit A. For purposes of this Section 6.12, a
"DISPUTE" includes any disagreement concerning the formation, construction or
interpretation of this Agreement or concerning matters related to or in
connection with this Agreement, but which matter is not covered by this
Agreement.
6
8
6.13 Litigation Costs. If any party takes legal action or initiates an
arbitration proceeding concerning this Agreement, the unsuccessful party to such
action or proceeding shall pay the successful party's expenses, including fees
or attorneys and expert witnesses, actually and reasonably incurred in such
action.
6.14 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and which together shall constitute a
single agreement.
EXECUTED at Westlake Village, California, on the date first above
written.
DIRECTOR
-----------------------------
Xxxxxx Xxxxxxx
KCD HOLDINGS INCORPORATED
-----------------------------
Wellington Ewen, President
7
9
EXHIBIT A
ARBITRATION PROCEDURES
A-1. Submission to Arbitration. Any dispute (as defined in Section 6.12
(Arbitration)) shall, if demanded by any party, be finally resolved and
determined by arbitration to be held in the County of Los Angeles, State of
California, in accordance with the law of the State of Nevada and the rules of
the American Arbitration Association (collectively, the "RULES") and under the
administration of the American Arbitration Association.
A-2. Selection of Arbitrators. There shall be three arbitrators. If
there are two parties to the arbitration, each party shall choose one
arbitrator, with the third arbitrator to be chosen by the two chosen
arbitrators, which third arbitrator shall serve as the "neutral arbitrator" for
purposes of the Rules. If there are more than two parties to the arbitration,
the two arbitrators shall be chosen pursuant to the Rules, with the third
arbitrator chosen as above, which third arbitrator shall serve as the "neutral
arbitrator" for purposes of the Rules.
A-3. The Panel. The three arbitrators so chosen shall serve as the
arbitration panel which shall resolve the dispute (the "PANEL"). The powers and
duties reserved to the neutral arbitrator under the Rules, shall be exercised by
a majority of the members of the Panel after due consideration and in accordance
with the Rules.
A-4. Proceedings. Subject to appropriate protective orders, the parties
to the arbitration shall facilitate the arbitration by: (a) making available to
one another and to the Panel for inspection, copying and extraction all
documents, books, and records under the control of such party which are relevant
to the subject matter of the arbitration proceeding; (b) conducting arbitration
hearings to the greatest extent possible on successive days; (c) observing
strictly the periods established by the Rules or by the Panel for the submission
of evidence or briefs; and (d) making reasonably available to one another in
arbitration discovery and to the Panel all personnel who are under the control
of such party or who control such party and who have information relevant to the
arbitration proceeding.
A-5. Discovery. In the arbitration proceeding, depositions may be taken
and discovery obtained in accordance with the Rules. The Panel, in its
discretion, may impose sanctions to enforce discovery or may limit discovery.
A-6. Awards. Any award rendered by the Panel shall be final and binding
upon each party to the arbitration and judgment on the award may be entered in
any court of competent jurisdiction. The arbitral award, where appropriate, may
be enforced by such court through injunctive or other equitable relief, as well
as all relief at law, including damages. The Panel also may issue decisions for
interim, interlocutory, provisional or partial relief, including temporary
restraining orders, preliminary injunctions, orders to compel discovery, orders
of attachment, or
A-1
10
protective orders, any of which may be enforced as an arbitral award by any
court of competent jurisdiction. Any arbitral award for money shall be made and
shall be payable in U.S. dollars. The Panel may award interest from the date of
any breach of this Agreement and shall fix the rate of interest on any amount
awarded for the date of the award to the date the award is paid in full.
A-7. Arbitration Costs. During the course of the arbitration
proceedings, all costs, charges and expenses of the arbitration (including the
fees, charges and expenses of the Panel and the American Arbitration
Association) shall be borne equally by the parties to the arbitration. However,
upon the issuance of the arbitral award, the losing party to the arbitration
shall bear the entire costs of the arbitration.
A-8. Interim Appeals. No party to the arbitration shall have any right
to apply or appeal to any court in connection with any question of law arising
in the course of the arbitration except for purposes of enforcing Section 6.12
(Arbitration) or a resulting arbitral award, except that any such party may
apply to any court of competent jurisdiction for an injunction or other
provisional or interim relief in support of arbitration or pursuant to Section
A-5 and any such application shall not be deemed incompatible with or a waiver
of this agreement to arbitrate.
A-2
