EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement"), effective as of March 1,
2001, by and among Newmark Homes Corp. (as more fully defined hereafter, the
"Company") and (the "Indemnitee"):
WHEREAS, the Indemnitee has been asked to serve on the Board of
Directors of the Company (the "Board"); and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify persons serving as directors of
the Company to the fullest extent permitted by applicable law so that they will
serve or continue to serve as directors of the Company free from undue concern
that they will not be so indemnified; and
WHEREAS, the Indemnitee is willing to serve and continue to serve on the
Board and on the Special Committee of the Company on the condition that he be so
indemnified; and
WHEREAS, to the extent permitted by law, this Agreement is a supplement to
and in furtherance of the Certificate of Incorporation of the Company and
provisions of the Bylaws or resolutions adopted pursuant thereto, and shall not
be deemed a substitute therefor, nor to diminish or abrogate any rights of the
Indemnitee thereunder;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and the Indemnitee do hereby covenant and agree as
follows:
Section 1. Services by the Indemnitee. The Indemnitee agrees to continue
to serve at the request of the Company as a director of the Company (including,
without limitation, service on one or more committees of the Board). The
Indemnitee may at any time and for any reason resign from any such position.
Section 2. Indemnification - General. The Company shall indemnify and
advance Expenses (as hereinafter defined) to the Indemnitee as provided in this
Agreement and to the fullest extent permitted by applicable law in effect on the
date hereof and to such greater extent as applicable law may thereafter from
time to time permit. The rights of the Indemnitee provided under the preceding
sentence shall include, but shall not be limited to, the rights set forth in the
other sections of this Agreement.
Section 3. Proceedings Other Than Proceeding by or in the Right of the
Company. The Indemnitee shall be entitled to the right of indemnification
provided in this Section 3 if, by reason of his Corporate Status (as hereinafter
defined), he is, or is threatened to be made, a party to or participant in any
threatened, pending or completed Proceeding (as hereinafter defined), other than
a Proceeding by or in the right of the Company. Under this Section 3, the
Company will indemnify the Indemnitee against Expenses, judgments, penalties,
fines and amounts paid in settlement (as and to the extent permitted hereunder)
actually and reasonably incurred by him or on his behalf in
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connection with such Proceeding or any claim, issue or matter therein, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
Proceeding, had no reasonable cause to believe this conduct was unlawful.
Section 4. Proceedings by or in the Right of the Company. The Indemnitee
shall be entitled to the rights of indemnification provided in this Section 4
if, by reason of his Corporate Status, he is, or is threatened to be made, party
to or participant in any threatened, pending or completed Proceeding brought by
or in the right of the Company to procure a judgment in its favor. Pursuant to
this Section 4, the Indemnitee shall be indemnified against Expenses actually
and reasonably incurred by him or on his behalf in connection with such
Proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company. Notwithstanding the
foregoing, no indemnification against such Expenses shall be made in respect of
any claim, issue or matter in such Proceeding as to which the Indemnitee shall
have been adjudged to be liable to the Company or if applicable law prohibits
such indemnification; provided, however, that if applicable law so permits,
indemnification against Expenses shall nevertheless be made by the Company in
such event if and to the extent that the court in which such Proceeding shall
have been brought or is pending, shall so determine.
Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful.
(a) To the extent that the Indemnitee is, by reason of his Corporate
Status, a party to and is successful, on the merits, in any Proceeding, the
Company will indemnify the Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf in connection therewith. If the
Indemnitee is not wholly successful in defense of any Proceeding but is
successful on the merits, as to one or more but less than all claims, issues or
matters in such Proceeding, the Company shall indemnify the Indemnitee against
all Expenses actually and reasonably incurred by him or on his behalf in
connection with each such successfully resolved claim, issue or matter. For
purposes of this Section 5(a) 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. The provisions of this Section 5(a) are subject to Section 5(b).
(b) In no event shall the Indemnitee be entitled to indemnification
under Section 5(a) with respect to a claim, issue or matter to the extent (i)
applicable law prohibits such indemnification, or (ii) an admission is made by
the Indemnitee in writing to the Company or in such Proceeding or a
determination is made in such Proceeding that the standard of conduct required
for Indemnification under this Agreement has not been met with respect to such
claim, issue or matter.
Section 6. Indemnification for Expenses as a Witness. Notwithstanding any
provisions herein to the contrary, to the extent that the Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith.
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Section 7. Advancement of Expenses.
(a) The Company shall advance all reasonable Expenses incurred by or
on behalf of the Indemnitee in connection with any Proceeding within 10 days
after the receipt by the Company of a statement or statements from the
Indemnitee requesting such advance or advances from time to time, whether prior
to or after the final disposition of such Proceeding; provided, however, that
the person or persons or entity making the determination of the Indemnitee's
entitlement to indemnification under Section 8 (the "Reviewing Party") of this
Agreement has not determined that the Indemnitee would not be permitted to be
indemnified under applicable law. Such statement or statements shall reasonably
evidence the Expenses incurred by or on behalf of the Indemnitee and shall
include or be preceded or accompanied by an undertaking by or on behalf of the
Indemnitee to repay any Expenses advanced if it shall ultimately be determined
that the Indemnitee is not entitled to be indemnified against such Expenses. The
Company shall accept any such undertaking without reference to the financial
ability of the Indemnitee to make repayment and without regard to the prospect
of whether the Indemnitee may ultimately be found to be entitled to
indemnification under the provisions of this Agreement.
(b) The Company's obligation to advance Expenses pursuant to Section
7(a) shall be subject to the condition that, if, when and to the extent that the
Reviewing Party determines that the Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be reimbursed
by the Indemnitee (who agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if the Indemnitee has commenced or
thereafter commences legal proceedings pursuant to Section 10 of this Agreement
to secure a determination that Indemnitee should be indemnified under applicable
law, any determination made by the Reviewing Party to the contrary shall not be
binding and the Indemnitee shall not be required to reimburse the Company for
any Expenses advanced until a final judicial determination is made with respect
thereto. Any required reimbursement of Expenses by the Indemnitee shall be made
by the Indemnitee to the Company within 10 days following the determination that
the Indemnitee would not be entitled to indemnification.
Section 8. Procedure for Determination of Entitlement to Indemnification.
(a) To obtain indemnification under this Agreement, the Indemnitee
shall submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to the Indemnitee
and is reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification. The Secretary of the Company shall,
promptly upon receipt of such a request for indemnification, advise the Board of
Directors in writing that the Indemnitee has requested indemnification.
(b) Upon written request by the Indemnitee for indemnification
pursuant to the first sentence of Section 8(a) hereof, a determination, if
required by applicable law, with respect to the Indemnitee's entitlement thereto
shall be made in the specific case: (i) by the Board of Directors by a majority
vote of a quorum consisting of Disinterested Directors (has hereinafter
defined), or (ii) if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel (as
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hereinafter defined), as selected pursuant to Section 8(d), in a written opinion
to the Board of Directors, a copy of which shall be delivered to the Indemnitee.
Notwithstanding the foregoing, if the Indemnitee is named as a party to a
Proceeding for which indemnification is sought solely because he or she is a
member of the Special Committee and no members of the Board of Directors are
named as parties to such Proceeding other than members of the Special Committee,
then the Indemnitee's entitlement to indemnification pursuant to the first
sentence of Section 8(a) shall be determined by Independent Counsel, as selected
pursuant to Section 8(d), in a written opinion to the Board of Directors, a copy
of which shall be delivered to the Indemnitee. If it is so determined that the
Indemnitee is entitled to indemnification, payment to the Indemnitee shall be
made within 10 days after such determination. The Indemnitee shall cooperate
with the person, persons or entity making such determination with respect to the
Indemnitee's entitlement to indemnification, 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 Indemnitee and reasonably necessary to such
determination. Subject to the provisions of Section 10 hereof, any costs or
expenses (including reasonable attorneys' fees and disbursements) incurred by
the Indemnitee in so cooperating with the person, persons or entity making such
determination shall be borne by the Company and the Company hereby indemnifies
and agrees to hold the Indemnitee harmless therefrom.
(c) Notwithstanding the foregoing, if a Change of Control has
occurred, the Indemnitee may require a determination with respect to the
Indemnitee's entitlement to indemnification to be made by Independent Counsel,
as selected pursuant to Section 8(d), in a written opinion to the Board of
Directors, a copy of which shall be delivered to the Indemnitee.
(d) In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 8 hereof, the
Independent Counsel shall be selected as provided in this Section 8(d). If a
Change of Control shall not have occurred, the Independent Counsel shall be
selected by the Board of Directors (including a vote of a majority of the
Disinterested Directors if obtainable) and the Company shall given written
notice to the Indemnitee advising him of the identity of the Independent Counsel
so selected. If such a Change of Control shall have occurred, the Independent
Counsel shall be selected by the Indemnitee (unless the Indemnitee shall request
that such selection be made by the Board of Directors, in which event the
preceding sentence shall apply), and approved by the Company (which approval
shall not be unreasonably withheld). If (i) an Independent Counsel is to make
the determination of entitlement pursuant to Section 8, and (ii) within 20 days
after submission by the Indemnitee of a written request for indemnification
pursuant to Section 8(a) hereof, no Independent Counsel shall have been
selected, either the Company or the Indemnitee may petition the appropriate
court of the State (as hereafter defined) or other court of competent
jurisdiction ("Court") for the appointment as Independent Counsel of a person
selected by the Court or by such other person as the Court shall designate. The
Company shall pay any and all reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with acting pursuant
to Section 8 hereof, and the Company shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 8 hereof, and the Company shall pay
all reasonable fees and expenses incident to the procedures of this Section
8(d),
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regardless of the manner in which such Independent Counsel was selected or
appointed. Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 10(a)(iii) 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).
Section 9. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to whether the Indemnitee
is entitled to indemnification hereunder, the Reviewing Party making such
determination shall presume that the Indemnitee is entitled to indemnification
under this Agreement if the Indemnitee has submitted a request for
indemnification in accordance with Section 8(a) of this Agreement, and anyone
seeking to overcome this presumption shall have the burden of proof and the
burden of persuasion, by clear and convincing evidence.
(b) Subject to the terms of Section 15 below, 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 Indemnitee to indemnification or create a
presumption that the Indemnitee did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interest of the
Company or, with respect to any criminal Proceeding, that the Indemnitee had
reasonable cause to believe that his conduct was unlawful.
(c) For purposes of any determination of good faith, the Indemnitee
shall be deemed to have acted in good faith if the Indemnitee's action is based
on the records or books of account of the Company, including financial
statement, or on information supplied to the Indemnitee by the officers of the
Company in the course of their duties, or on the advice of legal or financial
counsel for the Company or the Board of Directors of the Company (or any
committee thereof) or on information or records given or reports made by an
independent certified public accountant or by an appraiser or other expert
selected by the Company or the Board of Directors of the Company (or any
committee thereof). The provisions of this Section 9(c) shall not be deemed to
be exclusive or to limit in any way the other circumstances in which the
Indemnitee may be deemed or found to have met the applicable standard of conduct
set forth in this Agreement. In addition, the knowledge and/or actions, or
failure to act, of any other director, trustee, partner, managing member,
fiduciary, officer, agent or employee of the Company shall not be imputed to the
Indemnitee for purposes of determining the right to indemnification under this
Agreement. Whether or not the foregoing provisions of this Section 9(c) are
satisfied, it shall in any event be presumed that the Indemnitee has acted in
good faith and in a manner he reasonably believed to be in the best interests of
the Company. Anyone seeking to overcome this presumption shall have the burden
of proof and the burden of persuasion, by clear and convincing evidence.
Section 10. Remedies of the Indemnitee.
(a) In the event (i) a determination is made pursuant to Section 8
of this Agreement that the Indemnitee is not entitled to indemnification under
this Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 7 of this Agreement, (iii) the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section 8(b) or
Section 8(c) of this Agreement and
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such determination shall not have been made and delivered in a written opinion
within forty-five (45) days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to Section
6 of this Agreement within 10 days after receipt by the Company of a written
request therefor, or (v) payment of indemnification is not made within 10 days
after a determination has been made that the Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to
Section 8 or 9 of this Agreement, the Indemnitee shall be entitled to an
adjudication in an appropriate court of the State of his entitlement to such
indemnification or advancement of Expenses. Alternatively, the Indemnitee, at
his option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration Association. The
Indemnitee shall commence such proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which the Indemnitee first has
the right to commence such proceeding pursuant to this Section 10(a); provided,
however, that the foregoing clause shall not apply in respect of a proceeding
brought by the Indemnitee to enforce his rights under Section 5 of this
Agreement.
(b) In the event that a determination is made pursuant to Section 8
of this Agreement that the Indemnitee is not entitled to indemnification, any
judicial proceeding or arbitration commenced pursuant to this Section 10 shall
be conducted in all respects as a de novo trial, or arbitration, on the merits
and the Indemnitee shall not be prejudiced by reason of that adverse
determination. In any judicial proceeding or arbitration commenced pursuant to
this Section 10, the Company shall have the burden of proving that the
Indemnitee is not entitled to indemnification or advancement of Expenses, as the
case may be, and the Company shall be precluded from referring to or offering
into evidence a determination made pursuant to Section 8 of this Agreement that
is adverse to the Indemnitee's right to indemnification or advancement of
expenses, as the case may be. If the Indemnitee commences a judicial proceeding
or arbitration pursuant to this Section 10, the Indemnitee shall not be required
to reimburse the Company for any advances pursuant to Section 7 until a final
determination is made with respect to the Indemnitee's entitlement to
indemnification (as to which rights of appeal have been exhausted or lapsed).
(c) If a determination is made or deemed to have been made pursuant
to Section 8 or 9 of this Agreement that the Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 10, absent
(i) a misstatement by the Indemnitee of a material fact, or an omission by the
Indemnitee of a material fact necessary to make the Indemnitee's statement not
materially misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 10 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement.
(e) In the event that the Indemnitee, pursuant to this Section 10,
seeks a judicial adjudication of an award in arbitration to enforce his rights
under, or to recover damages for breach of, this Agreement, the Indemnitee shall
be entitled to
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recover from the Company, and shall be indemnified by the Company against, any
and all Expenses (of the types described in the definition of Expenses in
Section 18 of this Agreement) actually and reasonably incurred by him in such
judicial adjudication or arbitration; provided, however, if the court or
arbitrator confirms the decision that the Indemnitee is not entitled to recover
from the Company, then the Expenses incurred by the Indemnitee in the judicial
adjudication or arbitration shall be borne by the Indemnitee.
(f) Any judicial adjudication or arbitration determined under this
Section 10 shall be find and binding on the parties.
Section 11. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which the Indemnitee may at any time be entitled under
applicable law, the Certificate of Incorporation, the Bylaws, any agreement, a
vote of stockholders or a resolutions of directors, or otherwise. No amendment,
alteration or repeal of this Agreement or any provision hereof shall be
effective as to the Indemnitee with respect to any action taken or omitted by
the Indemnitee in his Corporate Status prior to such amendment, alteration or
repeal.
(b) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors or officers of the Company
or of any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which such person serves at the request of the Company,
the Indemnitee shall be covered by such policy or policies in accordance with
its or their terms to the maximum extent of the coverage available for any such
director or officer under such policy or policies.
(c) In the event of any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee, 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 Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
the Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
Section 12. Duration of Agreement. This Agreement shall continue for so
long as the Indemnitee may have any liability or potential liability by virtue
of serving as a director of the Company, including, without limitation, the
final termination of all pending Proceedings in respect of which the Indemnitee
is granted rights of indemnification or advancement of Expenses hereunder and of
any Proceeding commenced by the Indemnitee pursuant to Section 10 of this
Agreement relating thereto. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors (including any director or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets
of the Company), assigns, spouses, heirs, executors and personal and legal
representatives.
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Section 13. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions of
this Agreement (including, without limitation, each portion of any section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; (b) such
provision or provisions will be deemed reformed to the extent necessary to
conform to applicable law and to give maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or enforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
Section 14. Exception to Right of Indemnification or Advancement of
Expenses. Notwithstanding any other provision of this Agreement, the Indemnitee
shall not be entitled to indemnification or advancement of Expenses under this
Agreement with respect to any Proceeding, or any claim therein, brought or made
by him against the Company except for any claim or Proceeding in respect of this
Agreement and/or the Indemnitee's rights hereunder.
Section 15. Settlement of Claims. The Company shall not be liable to
indemnify the Indemnitee under this Agreement for any amounts paid in settlement
of any Proceeding effected without the Company's written consent. The Company
will not unreasonably withhold its consent to any proposed settlement. The
Company shall furthermore not be liable to indemnify the Indemnitee under this
Agreement with regard to any judicial award if the Company was not given a
reasonable and timely opportunity, at its expense, to participate in the defense
of such action.
Section 16. Identical Counterparts. This Agreement may be executed in one
or more counterparts (whether by original, photocopy or facsimile signature),
each of which shall for all purposes be deemed to be an original but all of
which together shall constitute one and the same Agreement. Only one such
counterpart executed by the party against whom enforceability is sought needs to
be produced to evidence the existence of this Agreement.
Section 17. Headings. The headings of the sections or paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part of this Agreement or to affect the construction thereof.
Section 18. Definitions. For purposes of this Agreement:
(a) "Affiliate" means, with respect to any person or entity, any
person or entity directly or indirectly controlling, controlled by or under
common control with such person or entity. For purposes hereof, "control"
(including, with correlative meaning, the terms "controlling", "controlled by"
and "under common control with") means the possession, directly or indirectly,
of the power to direct or cause the direction of management and policies of such
Person, by contract or otherwise.
(b) a "Change of Control" shall mean the happening after the date of
this Agreement of any of the following events:
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(i) the acquisition by any individual, entity or group (within
the meaning of Section13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) (a "Person"), other than
Technical Olympic USA, Inc. or an Affiliate of Technical Olympic USA,
Inc., of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 50% or more of either (A) the then
outstanding shares of common stock of the Company (the "Outstanding
Company Common Stock") or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally
in the election of directors (the "Outstanding Company Voting Power");
provided, however, that for purposes of this subsection (i), the
following acquisitions shall not constitute a Change in Control: (1) any
acquisition by the Company or (2) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company; or
(ii) individuals who, as of the date of this Agreement,
constitute the board of directors (the "Incumbent Board") cease for any
reason not to constitute at least a majority of the board of directors;
provided, however, that any individual becoming a director subsequent to
the date hereof whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption
of office occurs as a result of an actual or threatened election contest
with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the board of directors; and provided further, that any
change in the composition of the board of directors instituted or
approved by the holder, either directly or indirectly, of a majority of
the Outstanding Company Voting Power on the date hereof shall not
constitute a Change of Control; or
(iii) consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of
the assets of the Company (a "Business Combination"), in each case,
unless, following such Business Combination all or substantially all of
the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Power immediately prior to such Business Combination, or
their respective Affiliates, beneficially own, directly or indirectly,
more than 50% of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially all
of the Company's assets either directly or through one or more
subsidiaries); or
(iv) approval by the shareholders of the Company of a
liquidation or dissolution of the Company.
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(c) "Corporate Status" describes the status of a person who is or
was a director of the Company or a member of the Company's Special Committee on
which such person is or was serving in such capacity at the request of the
Company.
(d) "Disinterested Director" means a director of the Company who is
not and was not a party to, or otherwise involved in, the Proceeding for which
indemnification is sought by the Indemnitee.
(e) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs and 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.
(f) "Company" means Newmark Homes Corp., a Nevada corporation, and
its successor by merger, Newmark Homes Corp., a Delaware corporation.
(g) "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
Company or the 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 person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Company or the Indemnitee in an action to determine the Indemnitee's
rights under this Agreement.
(h) "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative.
(i) "State" means the State of Texas.
Section 19. Maintenance of Insurance. The Company shall use commercially
reasonable efforts to obtain and maintain in effect during the entire period for
which the Company is obligated to indemnify the Indemnitee under this Agreement,
one or more policies of insurance with reputable insurance companies to provide
the directors of the Company with coverage for losses from wrongful acts and
omissions and to ensure the Company's performance of its indemnification
obligations under this Agreement. In all such insurance policies, the Indemnitee
shall be named as an insured in such a manner as to provide the Indemnitee with
the same rights and benefits as are accorded to the most favorably insured of
the Company's directors and officers. Notwithstanding the foregoing, the Company
shall have no obligation to obtain or maintain such insurance if the Company
determines in good faith that if the Indemnitee is covered by similar insurance
maintained by a subsidiary or parent of the Company.
Section 20. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or
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shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
Section 21. Notice by Indemnitee. The Indemnitee agrees promptly to notify
the Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder.
Section 22. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and received for by the party to whom said
notice or other communication shall have been directed, or (ii) mailed by U.S.
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed: (a) if to the Company: Newmark Homes
Corp., 0000 Xxxxxxxx Xxxxx Xxxxx, Xxxxx Xxxx, Xxxxx, 00000, Attention:
President; and (b) if to any other party hereto, including the Indemnitee, to
the address of such party set forth on the signature page hereof; or to such
other address as may have been furnished by any party to the other(s), in
accordance with this Section.
Section 23. Governing Law; Venue, Etc.
(a) THE PARTIES AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE.
(b) ANY "ACTION OR PROCEEDING" (AS SUCH TERM IS DEFINED BELOW)
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE FILED IN AND LITIGATED
SOLELY BEFORE THE COURTS LOCATED IN XXXXXX COUNTY IN THE STATE OF TEXAS AND EACH
PARTY TO THIS AGREEMENT: (1) GENERALLY AND UNCONDITIONALLY ACCEPTS THE EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND VENUE THEREIN, AND WAIVES TO THE
FULLEST EXTENT PROVIDED BY LAW ANY DEFENSE OR OBJECTION TO SUCH JURISDICTION AND
VENUE BASED UPON THE DOCTRINE OF "FORUM NON CONVENIENS"; AND (2) GENERALLY AND
UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
BY DELIVERY OF CERTIFIED OR REGISTERED MAILING OF THE SUMMONS AND COMPLAINT IN
ACCORDANCE WITH THE NOTICE PROVISIONS OF THIS AGREEMENT. FOR PURPOSES OF THIS
SECTION, THE TERM "ACTION OR PROCEEDING" IS DEFINED AS ANY AND ALL CLAIMS,
SUITS, ACTIONS, HEARINGS, ARBITRATIONS OR OTHER SIMILAR PROCEEDINGS, INCLUDING
APPEALS AND PETITIONS THEREFROM, WHETHER FORMAL OR INFORMAL, GOVERNMENTAL OR
NON-GOVERNMENTAL, OR CIVIL OR CRIMINAL. THE FOREGOING CONSENT TO JURISDICTION
SHALL NOT CONSTITUTE GENERAL CONSENT TO SERVICE OF PROCESS IN THE STATE FOR ANY
PURPOSE EXCEPT AS PROVIDED ABOVE, AND SHALL NOT BE DEEMED TO CONFER RIGHTS ON
ANY PERSON OTHER THAN THE PARTIES TO THIS AGREEMENT.
(c) The Company acknowledges that the Indemnitee may, as a result of
the Company's breach of its covenants and obligations under this Agreement,
sustain immediate and long-term substantial and irreparable injury and damage
which cannot be reasonably or adequately compensated by damages at law.
Consequently, the
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Company agrees that the Indemnitee shall be entitled, in the event of the
Company's breach or threatened breach of its covenants and obligations
hereunder, to obtain equitable relief from a court of competent jurisdiction,
including enforcement of each provision of this Agreement by specific
performance and/or temporary, preliminary and/or permanent injunctions enforcing
any of the Indemnitee's rights, requiring performance by the Company, or
enjoining any breach by the Company, all without proof of any actual damages
that have been or may be caused by the Indemnitee by such breach or threatened
breach and without the posting of bond or other security in connection
therewith. The Company waives the claim or defense therein that the Indemnitee
has an adequate remedy at law, and the Company shall not allege or otherwise
asset the legal position that any such remedy at law exists. The Company agrees
and acknowledges that: (i) the terms of this Section 23(c) are fair, reasonable
and necessary to protect the legitimate interests of the Indemnitee; (ii) this
waiver is a material inducement to the Indemnitee to enter into the transactions
contemplated hereby; (iii) the Indemnitee relied upon this waiver in entering
into this Agreement; and will continue to rely on this waiver in its future
dealings with the Company. The Company warrants and represents that it has
reviewed this provision with its legal counsel, and that it has knowingly and
voluntarily waived its rights referenced in this Section 23 following
consultation with such legal counsel.
Section 24. Miscellaneous. Use of the masculine pronoun shall be deemed to
include usage of the feminine pronoun where appropriate.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
ATTEST: NEWMARK HOMES CORP.
By: By:
------------------------ ------------------------------
Name: Name:
------------------------ ------------------------------
Title: Title:
----------------------- -----------------------------
INDEMNITEE:
------------------------------------
Name:
------------------------------
Address:
------------------------
------------------------
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SCHEDULE TO
FORM OF INDEMNIFICATION AGREEMENT
The Form of Indemnification Agreement effective March 1, 2001 was entered into
by the Company and the following directors:
Xxxxxxxxxxx Stengos
Andreas Stengos
Yannis Delikanakis
Xxxxx Xxxx
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxxx Xxxxxx
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