Exhibit 13.1
INDEMNITY AGREEMENT
This Agreement is made as of the ______ day of ______________, 19___ by
Ameritrans Capital Corporation, a Delaware corporation (the "Corporation"), and
____________ ("Indemnitee"), a Director or Officer of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
Directors and Officers the most capable persons available, and
WHEREAS, the substantial increase in corporate litigation subjects
Directors and Officers to expensive litigation risks at the same time that the
availability of Directors' and Officers' liability insurance has been severely
limited, and
WHEREAS, it is now and has always been the express policy of the
Corporation to indemnify its Directors and Officers so as to provide them with
the maximum possible protection permitted by law, and
WHEREAS, Indemnitee is concerned about protection from expenses of
litigation and may not be willing to serve or continue to serve as a Director or
Officer without adequate protection, and the Corporation desires Indemnitee to
serve in such capacity.
NOW, THEREFORE, the Corporation and Indemnitee do hereby agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to serve as
a Director or Officer of the Corporation for so long as he is duly
elected or appointed or until such time as he tenders his resignation
in writing.
2. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending, or
completed action, suit, or proceeding, whether brought by or in
the right of the Corporation or otherwise and whether of a civil,
criminal, administrative, or investigative nature, in which the
Corporation 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 Corporation, by reason of any action
taken by his or of any inaction on his part while acting as such
a Director or Officer, or by reason of the fact that he is or was
serving at the request of the Corporation as a director, officer,
employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise; in each case whether or not
he is acting or serving in any such capacity at the time any
liability or expense is incurred for which indemnification or
reimbursement can be provided under this Agreement.
(b) The term "Expenses" shall include, without limitation, expenses
of investigations, judicial or administrative proceedings or
appeals, amounts paid in settlement by or on behalf of
Indemnitee, attorneys' fees and disbursements, and any expenses
of establishing a right to indemnification under Paragraph (7) of
this Agreement,
but shall not include the amount of judgments, fines, or
penalties against Indemnitee.
(c) References to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any excise tax
assessed with respect to any employee benefit plan; references to
"serving at the request of the Corporation" shall include any
service as a Director, Officer, employee, or agent of the
Corporation which imposes duties on, or involves services by,
such Director, Officer, employee, or agent with respect to an
employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner he reasonably
believed to be in the interests of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Agreement.
3. Indemnity in Third-Party Proceedings. The Corporation shall indemnify
Indemnitee in accordance with the provisions of this Paragraph 3 if
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 right of the Corporation to procure a judgment in its favor) by
reason of the fact that Indemnitee is or was a Director or Officer of
the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise,
against all Expenses, judgments, fines, and penalties, actually and
reasonably incurred by Indemnitee in connection with the defense or
settlement of such Proceeding, but only if Indemnitee acted in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation and, in the case of a
criminal proceeding, in addition, did not have reasonable cause to
believe that his conduct was unlawful. The termination of any such
Proceeding by judgment, order of court, settlement, conviction, or
upon a plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good faith
and in a manner which he reasonably believed to be in or not opposed
to the best interests of the Corporation, and with respect to any
criminal proceeding, that such person had reasonable cause to believe
that his conduct was unlawful.
4. Indemnity in Proceedings by or in the Right of the Corporation. The
Corporation shall indemnify Indemnitee in accordance with the
provisions of this Paragraph 4 if Indemnitee is a party to or
threatened to be made a party to any Proceeding by or in the right of
the Corporation to procure a judgment in its favor by reason of the
fact that Indemnitee is or was a Director or Officer of the
Corporation, or is or was serving at the request of the Corporation as
a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against all
Expenses actually and reasonably incurred by Indemnitee in connection
with the defense or settlement of such Proceeding, but only if he
acted in good faith and in a manner which he reasonably believed to be
in or not opposed to the best interests of the Corporation, except
that no indemnification for Expenses shall be made under this
Paragraph 4 in respect of any claim, issue, or matter as to which
Indemnitee shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation, unless
and only to the extent that any court in which such Proceeding was
brought shall determine
-2-
upon application that, despite the adjudication of liability and in
view of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for such Expenses or such court shall
otherwise deem proper the payment of such Expenses.
5. Indemnification of Expenses of Successful Party. Notwithstanding any
other provision of this Agreement, to the extent that 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 all Expenses incurred in connection therewith.
6. Advances of Expenses. Expenses incurred by the Indemnitee pursuant to
Paragraphs 3 and 4 in any Proceeding shall be paid by the Corporation
in advance of the final disposition of such Proceeding upon the
written request of Indemnitee if Indemnitee shall undertake to repay
such amount to the extent that it is ultimately determined that
Indemnitee is not entitled to indemnification, provided that as a
condition to any such advance, either (a) such Indemnitee provides a
security for such undertaking, (b) the Corporation is insured against
losses arising from any lawful advances, or (c) a majority of the
disinterested directors of the Corporation or any independent legal
counsel in a written opinion, determines, based on a review of readily
available facts, that there is a reason to believe that such
Indemnitee will be found entitled to indemnification hereunder.
7. Right of Indemnitee to Indemnification Upon Application; Procedure
Upon Application. Any indemnification under Paragraphs 3 and 4 shall
be made no later than 60 days after receipt by the Corporation of the
written request of Indemnitee, unless a determination is made within
said 60-day period by (1) the Board of Directors by a majority vote of
directors who were not parties to such Proceeding, (2) by a committee
of such directors designated by a majority of such directors, or (3)
independent legal counsel in a written opinion (which counsel shall be
appointed if such a quorum is not obtainable because of the absence of
the requisite number of disinterested directors), that the Indemnitee
has not met the relevant standards for indemnification set forth in
Paragraphs 3 and 4.
The right to indemnification or advances as provided by this Agreement
shall be enforceable by Indemnitee in any court of competent
jurisdiction. The burden of proving the indemnification is not
appropriate shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors or independent legal
counsel) to have made a determination prior to the commencement of
such action that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor an
actual determination by the Corporation (including its Board of
Directors or independent legal counsel) that Indemnitee has not met
such applicable standard of conduct, shall be a defense to the action
or create a presumption that Indemnitee has not met the applicable
standard of conduct. Indemnitee's expenses reasonably incurred in
connection with successfully establishing his right to
indemnification, in whole or in part, in any such Proceeding shall
also be indemnified by the Corporation.
8. Indemnification Hereunder Not Exclusive. The indemnification provided
by this Agreement shall not be deemed exclusive of any other rights to
which Indemnitee may be entitled under the Corporation's Certificate
of Incorporation, as amended, its By-
-3-
Laws, as amended, any agreement, any vote of shareholders or
disinterested Directors, the General Corporation Law of the State of
Delaware, or otherwise, both as to action in his official capacity and
as to action in another capacity while holding such office.
The indemnification under this Agreement shall continue as to
Indemnitee even though he may have ceased to be a Director or Officer
of the Corporation and shall inure to the benefit of the heirs and
personal representatives of Indemnitee.
9. Partial Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines, or penalties 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 Corporation shall nevertheless indemnify Indemnitee for
the portion of such Expenses, judgments, fines, or penalties to which
Indemnitee is entitled.
10. Saving Clause. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, the
Corporation shall, nevertheless, indemnify Indemnitee as to Expenses,
judgments, fines, and penalties with respect to any Proceeding to the
full extent permitted by any applicable portion of this Agreement that
shall not have been invalidated or by any other applicable law.
11. Notice. Indemnitee shall, as a condition precedent to his right to be
indemnified under this Agreement, give to the Corporation notice in
writing as soon as practicable of any claim made against him for which
indemnity will or could be sought under this Agreement. Notice to the
Corporation shall be directed to Ameritrans Xxxxxxx Xxxxxxxxxxx, 0xx
Xxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
President (or such other address as the Corporation shall designate in
writing to Indemnitee), together with a copy thereof to Xxxxxx
Xxxxxxxxx, Esq., Stursberg & Xxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000. Notice delivered by mail, by hand, or by overnight
delivery services shall be deemed received (i) three days after the
date postmarked if sent by prepaid mail, properly addressed or (ii)
upon delivery by hand or by overnight delivery service. In addition,
Indemnitee shall give the Corporation such information and cooperation
as it may reasonably require and shall be within Indemnitee's power.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
-4-
14. Successors and Assigns. This Agreement shall be binding upon the
Corporation and its successors and assigns.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
duly executed and signed as of the day and year first above written.
AMERITRANS CAPITAL CORPORATION
By:
---------------------------------
INDEMNITEE
------------------------------------
-5-
