Exhibit 10.12
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is made as of
__________________, 19_____ by and between Xxxx'x International, Inc., a
Delaware corporation (the "Company"), and ___________________________ (the
"Indemnitee"), an officer of the Company.
R E C I T A L S
A. The Indemnitee is currently serving or has agreed to serve as an
officer of the Company and in such capacity has rendered or will render valuable
services to the Company.
B. The Company has investigated the availability and sufficiency of
liability insurance and Delaware statutory indemnification provisions to provide
its directors and officers with adequate protection against various legal risks
and potential liabilities to which such individuals are subject due to their
position with the Company and has concluded that such insurance and statutory
provisions may provide inadequate and unacceptable protection to certain
individuals requested to serve as its directors and officers.
C. In order to induce and encourage highly experienced and capable
persons such as the Indemnitee to continue to serve as an officer of the
Company, the Board of Directors has determined, after due consideration and
investigation of the terms and provisions of this Agreement and the various
other options available to the Company and the Indemnitee in lieu hereof, that
this Agreement is reasonable and prudent and in the best interests of the
Company and its stockholders.
A G R E E M E N T
NOW, THEREFORE, in consideration of the continued services of the
Indemnitee and in order to induce the Indemnitee to serve as an officer, the
Company and the Indemnitee do hereby agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit or proceeding, whether brought in the name of the
Company or otherwise and whether of a civil, criminal or administrative or
investigative nature, by reason of the fact that the Indemnitee is or was
an officer of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of
another enterprise, whether or not he is serving in such capacity at the
time any liability or expense is incurred for which indemnification or
reimbursement is to be provided under this Agreement.
(b) The term "Expenses" includes, without limitation, attorneys'
fees, disbursements and retainers, accounting and witness fees, travel and
deposition costs, expenses of investigations, judicial or administrative
proceedings or appeals, amounts paid in settlement by or on behalf of the
Indemnitee, and any expenses of establishing a right to indemnification
pursuant to this Agreement or otherwise including reasonable compensation
for time spent by the Indemnitee in connection with the investigation,
defense or appeal of a Proceeding or action for indemnification for which
he is not otherwise compensated by the Company or any third party. The
term "Expenses" does not include the amount of judgments, fines, penalties
or ERISA excise taxes actually levied against the Indemnitee.
2. AGREEMENT TO SERVE. The Indemnitee agrees to continue to serve
as an officer of the Company at the will of the Company for so long as he is
duly elected or appointed or until such time as he tenders his resignation in
writing.
3. INDEMNIFICATION IN THIRD PARTY ACTIONS. The Company shall
indemnify the Indemnitee in accordance with the provisions of this section if
the Indemnitee is a party to or threatened to be made a party to or otherwise
involved in any Proceeding (other than a Proceeding by or in the name of the
Company to procure a judgment in its favor), by reason of the fact that the
Indemnitee is or was an officer of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of another
enterprise against all Expenses, judgments, fines, penalties and ERISA excise
taxes actually and reasonably incurred by the Indemnitee in connection with the
defense or settlement of such Proceeding, to the fullest extent permitted by
Delaware law; provided that any settlement be approved in writing by the
Company.
4. INDEMNIFICATION IN PROCEEDINGS BY OR IN THE NAME OF THE COMPANY.
The Company shall indemnify the Indemnitee in accordance with the provisions of
this section if the Indemnitee is a party to or threatened to be made a party to
or otherwise involved in any Proceeding by or in the name of the Company to
procure a judgment in its favor by reason of the fact that the Indemnitee was or
is an officer of the Company, or is or was serving at the request of the Company
as a director, officer, employee or agent of another enterprise, against all
Expenses actually and reasonably incurred by the Indemnitee in connection with
the defense or settlement of such Proceeding, to the fullest extent permitted by
Delaware law.
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5. CONCLUSIVE PRESUMPTION REGARDING STANDARD OF CONDUCT. The
Indemnitee shall be conclusively presumed to have met the relevant standards of
conduct as defined by Delaware law for indemnification pursuant to this
Agreement, unless a final determination is made by a court of competent
jurisdiction that the Indemnitee has not met such standards.
6. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding
any other provisions of this Agreement, to the extent that the Indemnitee has
been successful in defense of any Proceeding or in defense of any claim, issue
or matter therein, on the merits or otherwise, including the dismissal of a
Proceeding without prejudice, the Indemnitee shall be indemnified against all
Expenses incurred in connection therewith to the fullest extent permitted by
Delaware law.
7. ADVANCES OF EXPENSES. The Expenses incurred by the Indemnitee in
any Proceeding shall be paid promptly by the Company in advance of the final
disposition of the Proceeding at the written request of the Indemnitee to the
fullest extent permitted by Delaware law; provided that as long as Delaware law
requires such an undertaking, the Indemnitee shall undertake in writing to repay
such amount to the extent that it is ultimately determined that the Indemnitee
is not entitled to indemnification.
8. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, judgments, fines, penalties or ERISA excise taxes
actually and reasonably incurred by him in the investigation, defense, appeal or
settlement of any Proceeding but not, however, for the total amount thereof, the
Company shall nevertheless indemnify the Indemnitee for the portion of such
Expenses, judgments, fines, penalties or ERISA excise taxes to which the
Indemnitee is entitled.
9. INDEMNIFICATION PROCEDURE; DETERMINATION OF RIGHT TO
INDEMNIFICATION.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of any Proceeding, the Indemnitee will, if a claim in respect
thereof is to be made against the Company under this Agreement, notify the
Company of the commencement thereof. The omission so to notify the Company
will not relieve it from any liability which it may have to the Indemnitee
under this Agreement or otherwise.
(b) If a claim under this Agreement is not paid by the Company within
thirty (30) days of receipt of written notice, the right
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to indemnification as provided by this Agreement shall be enforceable by
the Indemnitee in any court of competent jurisdiction. The burden of
proving by clear and convincing evidence that indemnification or advances
are not appropriate shall be on the Company. Neither the failure of the
directors or stockholders of the Company or its independent legal counsel
to have made a determination prior to the commencement of such action that
indemnification or advances are proper in the circumstances because the
Indemnitee has met the applicable standard of conduct, nor an actual
determination by the directors or stockholders of the Company or its
independent legal counsel that the Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable standard of
conduct.
(c) The Indemnitee's Expenses incurred in connection with any
proceeding concerning his right to indemnification or advances in whole or
in part pursuant to this Agreement shall also be indemnified by the Company
regardless of the outcome of such proceeding, unless a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in such proceeding was not made in good faith or was frivolous.
(d) With respect to any Proceeding for which indemnification is
requested, the Company will be entitled to participate therein at its own
expense and, except as otherwise provided below, to the extent that it may
wish, the Company may assume the defense thereof, with counsel satisfactory
to the Indemnitee. After notice from the Company to the Indemnitee of its
election to assume the defense of a Proceeding, the Company will not be
liable to the Indemnitee under this Agreement for any legal or other
expenses subsequently incurred by the Indemnitee in connection with the
defense thereof, other than reasonable costs of investigation or as
otherwise provided below. The Company shall not settle any Proceeding in
any manner which would impose any penalty or limitation on the Indemnitee
without the Indemnitee's written consent. The Indemnitee shall have the
right to employ his own counsel in any 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 the Indemnitee, unless (i)
the employment of counsel by the Indemnitee has been authorized by the
Company, (ii) the Indemnitee shall have reasonably concluded that there may
be a conflict of interest between the Company and the Indemnitee in the
conduct of the defense of a Proceeding, or (iii) the Company shall not in
fact have employed counsel to assume the defense of a Proceeding, in each
of which cases the fees and expenses of the Indemnitee's counsel shall be
at the expense of the Company. The
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Company shall not be entitled to assume the defense of any Proceeding
brought by or on behalf of the Company or as to which the Indemnitee has
made the conclusion that there may be a conflict of interest between the
Company and the Indemnitee.
10. LIMITATIONS ON INDEMNIFICATION. No payments pursuant to this
Agreement shall be made by the Company:
(a) To indemnify or advance Expenses to the Indemnitee with respect
to Proceedings initiated or brought voluntarily by the Indemnitee and not
by way of defense, except with respect to Proceedings brought to establish
or enforce a right to indemnification under this Agreement or any other
statute or law or otherwise as required under Delaware law, but such
indemnification or advancement of Expenses may be provided by the Company
in specific cases if the Board of Directors finds it to be appropriate;
(b) To indemnify the Indemnitee for any Expenses, judgments, fines,
penalties or ERISA excise taxes for which payment is actually made to the
Indemnitee under a valid and collectible insurance policy, except in
respect of any excess beyond the amount of payment under such policy;
(c) To indemnify the Indemnitee for any Expenses, judgments, fines or
penalties sustained in any Proceeding for an accounting of profits made
from the purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Securities Exchange Act
of 1934, the rules and regulations promulgated thereunder and amendments
thereto or similar provisions of any Federal, state or local statutory law;
(d) To indemnify the Indemnitee for any Expenses, judgments, fines,
penalties or ERISA excise taxes resulting from the Indemnitee's conduct
which is finally adjudged to have been willful misconduct, knowingly
fraudulent or deliberately dishonest; or
(e) If a court of competent jurisdiction shall finally determine that
any indemnification hereunder is unlawful.
11. MAINTENANCE OF LIABILITY INSURANCE.
(a) The Company hereby covenants and agrees that, as long as the
Indemnitee shall continue to serve as an officer of the Company and
thereafter so long as the Indemnitee shall be subject to any possible
Proceeding, the Company, subject to subsection (c), shall
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promptly obtain and maintain in full force and effect directors' and
officers' liability insurance ("D&O Insurance") in reasonable amounts from
established and reputable insurers.
(b) In all D&O Insurance policies, the Indemnitee shall be named as
an insured in such a manner as to provide the Indemnitee the same rights
and benefits as are accorded any other officer of the Company.
(c) Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain D&O Insurance if the Company determines in
good faith that such insurance is not reasonably available, the premium
costs for such insurance are, in the opinion of the Company,
disproportionate to the amount of coverage provided, the coverage provided
by such insurance is so limited by exclusions that it provides an
insufficient benefit, or the Indemnitee is covered by similar insurance
maintained by a subsidiary of the Company.
12. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. The indemnification
provided by this Agreement shall not be deemed exclusive of any other rights to
which the Indemnitee may be entitled under the Certificate of Incorporation, the
Bylaws, any other agreement, any vote of stockholders or disinterested
directors, Delaware law, or otherwise, both as to action in his official
capacity and as to action in another capacity on behalf of the Company while
holding such office.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon,
and shall inure to the benefit of the Indemnitee and his heirs, personal
representatives and assigns, and the Company and its successors and assigns.
14. SEPARABILITY. Each provision 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 any other provision hereof. To the extent required, any provision of this
Agreement may be modified by a court of competent jurisdiction to preserve its
validity and to provide the Indemnitee with the broadest possible
indemnification permitted under Delaware law.
15. SAVINGS CLAUSE. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify the Indemnitee as to Expenses, judgments,
fines, penalties or ERISA excise taxes with respect to any Proceeding to the
full extent permitted by any applicable portion of this
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Agreement that shall not have been invalidated or by any applicable provision of
Delaware law.
16. INTERPRETATION; GOVERNING LAW. This Agreement shall be construed
as a whole and in accordance with its fair meaning. Headings are for
convenience only and shall not be used in interpreting the provisions hereunder.
This Agreement shall be governed by and interpreted in accordance with the laws
of the State of Delaware.
17. AMENDMENTS. No amendment, waiver, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
the party against whom enforcement is sought. The indemnification rights
afforded to the Indemnitee hereby are contract rights and may not be diminished,
eliminated or otherwise affected by amendments to the Company's Certificate of
Incorporation, Bylaws or other agreements, including D&O Insurance policies.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other.
19. NOTICES. Any notice required to be given under this Agreement
shall be directed to Xxxx'x International, Inc., 000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, Attention: General Counsel, and
to Indemnitee at _________________________________________ or to such other
address as either shall designate in writing.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INDEMNITEE
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XXXX'X INTERNATIONAL, INC.
By:
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Title: Chairman of the Board
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