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EXHIBIT 10.43
FORM OF
INDEMNIFICATION AGREEMENT
This Agreement is made as of the __________ day of
_____________________________, 1997, by and between Rent X Industries, Inc., a
Delaware Corporation ("the Company"), and the undersigned director and/or
officer of the Company (the "Indemnitee") with reference to the following
facts:
The Indemnitee is currently serving as a director and/or
officer of the Company and the Company wishes the Indemnitee to continue in
such capacity, and, if requested in the future, to serve in such other
positions with the Company and its subsidiaries as the Company may determine.
The Indemnitee is willing, under certain circumstances, to continue serving as
a director and/or officer of the Company.
The Indemnitee does not regard the indemnities available under
the Company's Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") and Amended and Restated Bylaws (the "Bylaws")
as adequate to protect the Indemnitee against the risks of personal liability
associated with the Indemnitee's service to the Company. In this connection
the Company and the Indemnitee now agree they should enter into this
Indemnification Agreement in order to provide greater protection to Indemnitee
against such risks of service to the Company.
Section 145 of the General Corporation Law of the State of
Delaware, under which law the Company is organized, empowers corporations to
indemnify a person serving as a director, officer, employee or agent of the
corporation and a person who serves at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, or other enterprise, and said Section 145, the Certificate of
Incorporation and the Bylaws specify that the indemnification set forth in said
Section 145, the Certificate of Incorporation and the Bylaws shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any agreement, vote of stockholders or disinterested
directors or otherwise.
In order to induce the Indemnitee to continue to serve as a
director and/or officer of the Company and in consideration of the Indemnitee's
continued service, the Company hereby agrees to indemnify the Indemnitee as
follows:
1. INDEMNITY. The Company will indemnify the
Indemnitee, the Indemnitee's executors, administrators or assigns, for any
Expenses (as defined below) which the Indemnitee is or becomes legally
obligated to pay in connection with any Proceeding. As used in this Agreement
the term "Proceeding" includes any threatened, pending or completed claim,
action, suit or proceeding, whether brought by or in the right of the Company
or otherwise and whether of a civil, criminal, administrative or investigative
nature, in which the Indemnitee may be or may have been involved as a party or
otherwise, by reason of the fact that Indemnitee is or was a director or
officer of the Company, by reason of any actual or alleged error or
misstatement or misleading statement made or suffered by the Indemnitee, by
reason of any action taken by the Indemnitee or of any inaction on the
Indemnitee's part while acting as such director or officer, or by reason of the
fact that the Indemnitee was serving at the request of the Company as a
director, trustee, officer, fiduciary,
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employee or agent of another corporation, partnership, joint venture, trust or
other enterprise; provided, that in each such case Indemnitee acted in good
faith and in a manner which the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, and, in the case of a criminal
proceeding, had no reasonable cause to believe that the Indemnitee's conduct
was unlawful. As used in this Agreement, the term "other enterprise" includes
(without limitation) employee benefit plans and administrative committees
thereof, and the term "fines" includes (without limitations) any excise tax
assessed with respect to any employee benefit plan.
2. EXPENSES. As used in this Agreement, the term
"Expenses" includes, without limitation, damages, judgments, fines, penalties,
settlements and costs, reasonable attorneys' fees and disbursements and costs
of attachment or similar bonds, and investigations in connection with
investigating, defending, being a witness or participating in any Proceeding,
and any expenses of establishing a right to indemnification under this
Agreement.
3. ENFORCEMENT. If a claim or request under this
Agreement is not paid by the Company, or on its behalf, within thirty days
after a written claim or request has been received by the Company, the
Indemnitee may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim or request and if successful in whole or in
part, the Indemnitee shall be entitled to be paid also the Expenses of
prosecuting such suit.
4. SUBROGATION. In the event of 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 shall do everything that may be necessary to secure such rights,
including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights; provided, however, that
neither this right of subrogation nor the exclusion set forth in Section 5(b)
below shall apply to any right of recovery of the Indemnitee or any payment
received by the Indemnitee from an entity that is the primary employer of the
Indemnitee or on whose behalf the Indemnitee serves as a director and/or
officer of the Company or an affiliate of any such entity.
5. EXCLUSIONS. The Company shall not be liable under
this Agreement to make any payment in connection with any claim made against
the Indemnitee:
(a) to the extent that payment is actually made
to the Indemnitee under a valid, enforceable and collectible
insurance policy;
(b) to the extent that the Indemnitee is
indemnified and actually paid otherwise than pursuant to this
Agreement, subject to Section 4;
(c) in connection with a judicial action by or in
the right of the Company, in respect of any claim, issue or
matter as to which the Indemnitee shall have been adjudged to
be liable for knowingly fraudulent, dishonest or willful
misconduct in the performance of the Indemnitee's duty to the
Company;
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(d) if it is proved by final judgment in a court
of law or other final adjudication to have been based upon or
attributable to the Indemnitee's having gained any personal
profit or advantage to which the Indemnitee was not legally
entitled;
(e) for a disgorgement of profits made from the
purchase and sale by the Indemnitee of securities pursuant to
Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any state
statutory law or common law;
(f) brought about or contributed to by the
dishonesty of the Indemnitee; provided, however,
notwithstanding the foregoing, the Indemnitee shall be
protected under this Agreement as to any claims upon which
suit may be brought against the Indemnitee by reason of any
alleged dishonesty on the Indemnitee's part, unless a judgment
or other final adjudication thereof adverse to the Indemnitee
shall establish that the Indemnitee committed (i) acts of
active and deliberate dishonesty, (ii) with actual dishonest
purpose and intent, (iii) which acts were material to the
cause of action so adjudicated; or
(g) for any judgment, fine or penalty which the
Company is prohibited by applicable law from paying as
indemnity or for any other reason.
6. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding or in defense of any claim, issue or matter therein, including
dismissal without prejudice, Indemnitee shall be indemnified against any and
all Expenses incurred in connection therewith.
7. PARTIAL INDEMNIFICATION. If the Indemnitee is
entitled under any provision of this Agreement to indemnification by the
Company for a portion of any Expenses, but not for the total amount thereof,
the Company shall indemnify the Indemnitee for the portion of such Expenses to
which the Indemnitee is entitled.
8. ADVANCE OF EXPENSES. Expenses reasonably and
necessarily incurred by the Indemnitee in connection with any Proceeding,
except the amount of any settlement, shall be paid by the Company in advance
upon request of the Indemnitee that the Company pay such Expenses. The
Indemnitee hereby undertakes to repay to the Company the amount of any Expenses
theretofore paid by the Company to the extent that it is ultimately determined
that such Expenses were not reasonable or that the Indemnitee is not entitled
to indemnification in respect thereof.
Such advances shall be made by the Company unless: (a) the
Board of Directors determines, by a majority vote of a quorum of disinterested
directors based on clear and convincing evidence known to the Board of
Directors at the time such determination is made, that the
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Indemnitee would not be entitled to indemnification under applicable law, or
(b) if such a quorum is not obtainable or a quorum of disinterested directors
so directs, independent legal counsel determines, based on clear and convincing
evidence known to the counsel at the time such determination is made, that
Indemnitee would not be entitled to indemnification under applicable law.
9. NOTICE AND DEFENSE OF CLAIM. The Indemnitee, as a
condition precedent to the Indemnitee's right to be indemnified under this
Agreement, shall give to the Company notice in writing as soon as practicable
of any claim made against the Indemnitee for which indemnity will or could be
sought under this Agreement. Notice to the Company shall be given at its
principal office, shall be directed to the Corporate Secretary (or such other
address as the Company shall designate in writing to the Indemnitee) and shall
be effective only upon actual receipt. In addition, the Indemnitee shall give
the Company such information and cooperation as it may reasonably require and
as shall be within the Indemnitee's power.
With respect to any such Proceeding: (a) the Company will be
entitled to participate therein at its own expense; and (b) except as otherwise
provided below, to the extent that it may wish, the Company jointly with any
other indemnifying party similarly notified will be entitled to assume the
defense thereof, with counsel reasonably satisfactory to Indemnitee. After
notice from the Company to Indemnitee, given within a reasonable time, of its
election so to assume the defense thereof, the Company will not be liable to
Indemnitee under this Agreement for any legal or other expenses subsequently
incurred by Indemnitee in connection with the defense of such Proceeding except
as otherwise provided below. Indemnitee shall have the right to employ the
Indemnitee's own counsel in such Proceeding but the fees and expenses of such
counsel incurred after notice from the Company of its assumption of the defense
thereof shall be at the expense of Indemnitee unless (i) the employment of
counsel by Indemnitee has been authorized by the Company, or (ii) Indemnitee
shall have obtained the written opinion of reputable counsel with expertise in
such matters (such counsel to be reasonably satisfactory to a majority of
disinterested directors) that there may be one or more defenses available to
Indemnitee that could reasonably be expected to result in a conflict of
interest between the Company and Indemnitee in the conduct of the defense of
such action, in each of which cases the reasonable fees and expenses of
Indemnitee's counsel shall be at the expense of the Company. The Company shall
not be entitled to assume the defense of any Proceeding brought by or on behalf
of the Company or that is the subject of the opinion provided by Indemnitee
under clause (ii) above.
The Company shall not be liable to indemnify Indemnitee under
this Agreement for any amounts paid in settlement of any Proceeding effected
without its prior written consent. Indemnitee shall execute and deliver such
agreements, releases and other documents as the Company may reasonably request
to effect a settlement of any Proceeding. Without Indemnitee's consent, the
Company shall not enter into any settlement that provides for any action by
Indemnitee other than the payment of amounts against which Indemnitee is
entitled to indemnification hereunder. In the event that the Company proposes
to settle any Proceeding by the payment of damages against which Indemnitee is
entitled to indemnification hereunder and in an amount that the plaintiff has
indicated
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would be acceptable, and the Indemnitee refuses to enter into a reasonable
settlement agreement, the Company shall not thereafter be responsible for any
costs of defense or the amount by which any judgment or settlement thereafter
paid exceeds the damages that the Company proposed to pay in settlement.
Neither the Company nor Indemnitee will unreasonably withhold their consent to
any proposed settlement.
10. NO EMPLOYMENT AGREEMENT. Nothing contained herein
shall be deemed to create a contract of employment between the Company and
Indemnitee.
11. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
instrument.
12. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. Nothing
herein shall be deemed to diminish or otherwise restrict the Indemnitee's right
to indemnification under any provision of the Certificate of Incorporation or
Bylaws of the Company and amendments thereto or under law.
13. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with Delaware law without giving effect to the
principles of conflicts of laws.
14. COVERAGE. The provisions of this Agreement shall
apply with respect to the Indemnitee's service in any of the capacities
described in Section 1 above prior to as well as after the date of this
Agreement. The right of Indemnitee to be indemnified hereunder shall continue
after the termination of Indemnitee's service as an officer and/or director of
the Company with respect to all periods prior to such termination.
15. AMENDMENTS; WAIVERS. 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 shall constitute a waiver of any other provision hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
16. BINDING EFFECT. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by both of the parties hereto
and their respective successors, assignees (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company), heirs,
executors and personal and legal representatives.
17. SEVERABILITY. If any provision of this Agreement
(including any provision within a single section, paragraph or sentence) is
held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable in any respect, the validity and enforceability of any such
provision in every other respect and of the remaining provisions of this
Agreement shall not be in any way impaired and shall remain enforceable to the
full extent permitted by law.
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18. NOTICES. All notices, requests, demands and other
communications which are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given when delivered in person
(by express courier or otherwise), by telecopier or three days after being
deposited in the United States mail, certified mail, return receipt requested,
first class postage prepaid, as follows:
If to the Company: RENTX Industries, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Secretary
Telecopier: (000) 000-0000
If to Indemnitee:
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and signed as of the day and year first above
written.
RENTX INDUSTRIES, INC.
By
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(Name of Director/Officer)
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