REPRESENTATIVE
OFFICER INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and effective as of this ____ day of __________,
1999, between Xxxxxxxx Financial, Inc., a Delaware corporation
("Corporation") and ___________________ ("Officer").
WHEREAS, Officer is an officer of Corporation and in such capacity may
be exposed to risks of undue personal liability; and
WHEREAS, the Amended and Restated Certificate of Incorporation (the
"Certificate") of the Corporation, which requires the Corporation to
indemnify and advance expenses to Officer to the fullest extent permitted by
the Delaware General Corporation Law, is subject to change by amendment; and
WHEREAS, the directors' and officers' liability insurance obtained by
the Corporation may not provide complete protection to Officer against all
risks of undue personal liability; and
WHEREAS, Officer is serving the Corporation in part in reliance upon
the continued availability of effective protection against undue personal
liability arising out of or in connection with Officer's service to the
Corporation; and
WHEREAS, to supplement the Corporation's directors' and officers'
liability insurance and to provide Officer with specific contractual
assurance that the protection provided by the Corporation's Certificate will
continue to be available to Officer regardless of, among other things, an
amendment of the Certificate or a change in management or control of the
Corporation, the Corporation has agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the above premises and of Officer's
continued service to the Corporation, the parties hereto agree as follows:
1. INDEMNITY OF OFFICER. In the event Officer was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he or she is or
was a director, officer, employee, agent, trustee, committee member or
representative of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee, agent, trustee, committee
member or representative of another corporation or other entity, including,
without limitation, any Subsidiary (as defined in the Certificate),
partnership, joint venture, limited liability company, limited liability
partnership, unincorporated organization or similar company, trust or other
enterprise, including service with respect to any employee benefit plan,
whether the basis of such Proceeding is alleged action in an official
capacity or in any other capacity while serving as a director, officer,
employee, agent, trustee, committee member or representative (an
"Indemnifiable Event"), Officer shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by reason of Officer acting in any such capacity;
PROVIDED, HOWEVER, that with respect to Proceedings to enforce rights to
indemnification, the Corporation shall indemnify Officer in connection with a
Proceeding (or part thereof) initiated by Officer only if such Proceeding (or
part thereof) is conducted as provided in Section 3 below or if such
Proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation.
2. ADVANCEMENT OF EXPENSES. The right to indemnification conferred
in Section 1 hereof shall include the right to have the Corporation pay the
expenses incurred in defending any Proceeding in advance of its final
disposition (an "Advancement of Expenses"); PROVIDED, HOWEVER, that, if the
Delaware General Corporation Law so requires, an Advancement of Expenses
incurred by Officer shall be made only upon delivery to the Corporation of an
undertaking (an "Undertaking"), by or on behalf of Officer, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (a "Final
Adjudication"), that Officer is not entitled to be indemnified for such
expenses under this Section or otherwise.
3. ENFORCEMENT. If a claim under Section 1 hereof is not paid in
full by the Corporation within sixty (60) days after a written claim has been
received by the Corporation, or a claim under Section 2 hereof for an
Advancement of Expenses is not paid in full by the Corporation within twenty
(20) days after a written claim has been received by the Corporation, Officer
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such
suit, or in a suit brought by the Corporation to recover an Advancement of
Expenses pursuant to the terms of an Undertaking, Officer shall also be
entitled to be paid the expense of prosecuting or defending such suit,
including any reasonable attorneys' fees. In any suit by the Corporation to
recover an Advancement of Expenses pursuant to the terms of an Undertaking,
the Corporation shall be entitled to recover such expenses upon a Final
Adjudication that Officer has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law as the same
exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment). Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of Officer is proper in the circumstances because
Officer has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that Officer has not met such applicable standard of conduct,
shall create a presumption that Officer has not met the applicable standard
of conduct or, in the case of such a suit brought by Officer, be a defense to
such suit. In any suit brought by Officer to enforce a right to
indemnification or to an Advancement of Expenses hereunder, or by the
Corporation to recover an Advancement of Expenses pursuant to the terms of an
Undertaking, the burden of proving that Officer is not entitled to be
indemnified, or to such Advancement of Expenses, under this Article or
otherwise shall be on the Corporation.
4. CHANGE IN CONTROL.
(a) Upon the Trigger Date (as defined in the Certificate in
effect on the date hereof), the Corporation shall seek legal advice
concerning the rights of Officer to indemnity payments under this
Agreement, the Certificate, or any other bylaw or agreement now or
hereafter in effect, only from special independent counsel selected by
Officer and approved by the Corporation (which approval shall not be
unreasonably withheld). Such counsel shall not have otherwise
performed services for the Corporation (except in connection with
similar questions about payments of indemnity), and the Corporation
shall not engage such counsel for any purpose other than with respect
to rights under this or similar agreements. Such counsel, among other
things, shall determine whether and to what extent Officer is permitted
to be indemnified under applicable law and shall render its written
opinion to the Corporation and Officer to such effect.
(b) The Corporation agrees to pay the reasonable fees of the
special independent counsel referred to above and to fully indemnify
such counsel against any and all expenses (including attorneys' fees),
claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto except for such counsel's
willful misconduct or gross negligence.
5. DEFENSE. The Corporation shall have the right to participate at
its own expense in any action, suit, proceeding, inquiry or investigation
against Officer with respect to an Indemnifiable Event and to assume the
defense thereof with counsel satisfactory to Officer. Officer shall have the
right to employ separate counsel in any such action, suit, proceeding,
inquiry or investigation and the fees and expenses of such separate counsel
shall be borne by Officer; provided that, all fees and expenses of such
separate counsel shall be borne by the Corporation if: (i) the Corporation
shall have authorized the engagement of such separate counsel, (ii) the
Corporation shall have failed to employ any counsel to represent Officer in
such matter, or (iii) such separate counsel shall have reasonably advised
Officer that there may be a conflict of interest between Officer and
Corporation in the defense or investigation of such matter.
6. ADDITIONAL INDEMNITY. The Corporation shall indemnify Officer to
the fullest extent permitted by law against any and all expenses (including
attorneys' fees) and, if requested by Officer, shall (within twenty business
days of such request) advance such expenses to Officer, which are incurred in
connection with any claim asserted or action brought by Officer for (i)
indemnification or advance payment of expenses by the Corporation under this
Agreement, the Certificate or any other bylaw or agreement hereafter in
effect relating to claims for Indemnifiable Events and/or (ii) recovery under
any directors' and officers' liability insurance policies maintained by the
Corporation; provided that, if Officer ultimately is determined in the manner
provided for herein not to be entitled to such indemnification, advance
payment of expenses or insurance recovery, Officer shall, and Officer hereby
undertakes to, reimburse the Corporation for all such amounts received by
Officer promptly after receipt of a written demand therefor from the
Corporation.
7. ADDITIONAL RIGHTS. The rights of Officer hereunder shall be in
addition to any other rights Officer may have under the Certificate as in
effect on the date of this Agreement or the Delaware General Corporation Law
or otherwise. To the extent a change in the Delaware General Corporation Law
(whether by statute or judicial decision) or in the Certificate permits
greater indemnification by agreement than would be afforded currently, it is
the intent of the parties hereto that Officer shall enjoy by this Agreement
the greater benefits afforded by such change.
8. INSURANCE COVERAGE. To the extent the Corporation maintains an
insurance policy or policies providing directors' and officers' liability
insurance, Officer shall be covered by such policy or policies, in accordance
with the terms thereof, to the maximum extent of the coverage available for
any director or officer of the Corporation.
9. MODIFICATION OF AGREEMENT. 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
provisions hereof nor shall such waiver constitute a continuing waiver.
10. SUBROGATION. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Officer. Officer shall do everything reasonably
necessary to enable the Corporation to secure and enforce such rights,
provided any costs incurred by Officer in connection therewith shall be
advanced or promptly reimbursed by the Corporation.
11. LIMITS OF CORPORATION'S LIABILITY. The Corporation shall not be
liable under this Agreement to make any payment in connection with any claim
made against Officer to the extent Officer has otherwise actually received
payment (under any insurance policy, bylaw or otherwise) of the amounts
otherwise indemnifiable hereunder.
12. BINDING EFFECT. This Agreement shall be binding upon Officer and
upon the Corporation, its successors and assigns, and shall inure to the
benefit of Officer, such Officer's heirs, personal representatives and
assigns and to the benefit of Corporation, its successors and assigns. This
Agreement shall continue in effect regardless of whether Officer continues to
serve the Corporation or any other enterprise at the Corporation's request.
13. SEVERABILITY. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, and 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.
14. GOVERNING LAW. This Agreement shall be interpreted and enforced
in accordance with the laws of the State of Delaware, without regard to
conflicts of law rules or principles which might refer such interpretation or
enforcement to the laws of another state or country.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
XXXXXXXX FINANCIAL, INC.
By -------------------------------
Title:----------------------------
----------------------------------
Officer
SCHEDULE
TO
REPRESENTATIVE OFFICER INDEMNIFICATION AGREEMENT
------------------------------------------------
In accordance with the instructions to Item 601 of Regulation S-K, this
schedule supplements the Representative Officer Indemnification Agreement
(the "Officer Indemnification Agreement"). The Officer Indemnification
Agreement was entered into by the following individual officers on the
following dates. There are no other material differences between the Officer
Indemnification Agreement and the agreements entered into by such
individuals.
OFFICER DATE
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Xxxxxx X. Xxxxxxx ________, 1999
Xxxxxx X. Xxxxxxx ________, 1999
Xxxxx X. Xxxxxxxxx ________, 1999
Xxxxxxx X. XxXxxxxx ________, 1999
