Exhibit 10.9
XXXXXX COMMUNICATIONS CORPORATION
DIRECTOR INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made this ___ day of ____________, _____, between
XXXXXX COMMUNICATIONS CORPORATION, an Oklahoma corporation (the
"Corporation") and ___________________________ (the "Director").
WITNESSETH THAT:
WHEREAS, the Director has agreed to serve as a director of the
Corporation; and
WHEREAS, the Director will be performing a valuable service for the
Corporation; and
WHEREAS, the stockholders of the Corporation have adopted bylaws (the
"Bylaws") providing for the indemnification of the directors, officers,
agents and employees of the Corporation to the maximum extent authorized by
Section 1031 of the Oklahoma General Corporation Act, as amended (the "State
Statute"); and
WHEREAS, the Bylaws and the State Statute specifically provide that
they are not exclusive, and thereby contemplate that contracts may be entered
into between the Corporation and the members of its Board of Directors with
respect to indemnification; and
WHEREAS, recent developments with respect to the application,
amendment and enforcement of statutory and by-law indemnification provisions
generally have raised questions concerning the adequacy and reliability of
the protection afforded to directors thereby; and
WHEREAS, in order to resolve such questions and thereby induce the
Director to serve and to continue to serve as a member of the Board of
Directors of the Corporation, the Corporation has determined and agreed to
enter into this contract with the Director;
NOW, THEREFORE, in consideration of the Director's willingness to
serve as a director and, if elected, to serve as a director, the parties have
entered into this agreement.
1. INDEMNITY OF DIRECTOR. The Corporation hereby agrees to hold
harmless and indemnify the Director to the fullest extent authorized or
permitted by the provisions of the State
Statute, or by any amendment thereof, or any other statutory provisions
authorizing or permitting such indemnification presently in existence or
which may be adopted after the date hereof. In this regard, the Corporation
agrees to indemnify the Director and to hold the Director harmless from and
against any and all claims, threats, investigations, actions and other
proceedings, whether civil, criminal, administrative or otherwise (any such
claim, threat, investigation, action or proceeding hereinafter referred to as
an "Action"), damages, judgments, penalties, fines, losses, liabilities,
settlement amounts, costs and expenses (including, without limitation,
reasonable legal fees, costs and disbursements) (collectively, "Losses")
incurred, suffered or expended by or threatened against the Director with
respect to any action or inaction taken in the course of (a) the Director's
nomination and standing for election as a director of the Corporation, (b) if
elected a director of the Corporation, the Director's duties as a director of
the Corporation, including without limitation any such Action or Loss to
which the Director may become subject under the Securities Act of 1933, as
amended (the "Securities Act"), the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), any state securities, takeover or corporate
law, or any other federal or state law or regulation or at common law, (c)
the Director's duties as an officer, employee or agent of the Corporation (if
he serves in such capacities) and (d) the Director's duties as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise if serving in such capacities at the
request of the Corporation. If the Director is entitled under any provision
of this Agreement to indemnification by the Corporation for some or a portion
of any losses in respect of an Action but not, however, for all of the total
amount thereof, the Corporation will nevertheless indemnify the Director for
the portion thereof to which the Director is entitled. Payment of any
indemnification pursuant to this Section 1 shall be made within thirty (30)
business days after request by the Director therefor. If requested by the
Director, payment of indemnification for any Losses shall be made as the same
are incurred notwithstanding that the Action in respect of which the Losses
were incurred has not been finally determined.
2. LIMITATIONS ON INDEMNITY. No indemnity pursuant to Section 1
hereof shall be paid by the Corporation:
2.1 In respect to remuneration paid to the Director if it shall
be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
2.2 On account of any suit in which judgment is rendered against
the Director for an accounting of profits made from the purchase or sale by
the Director of securities of the Corporation pursuant to the provisions of
Section 16(b) of the Exchange Act and the rules and regulations promulgated
thereunder or similar provisions of any federal, state or local statutory law;
2.3 On account of the Director's conduct which is finally
adjudged to have been knowingly fraudulent, deliberately dishonest, grossly
negligent or willful misconduct; or
2.4 If a final decision by a Court having jurisdiction in the
matter shall determine that such indemnification is not lawful;
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provided, however, notwithstanding any other provision of this agreement to
the contrary, to the extent the Director has been successful on the merits or
otherwise in defense of any or all actions relating in whole or in part to an
Action for which indemnification may be provided under this Agreement or in
defense of any issue or matter therein, including dismissal without
prejudice, the Director will be indemnified against all reasonable expenses
incurred in connection therewith.
3. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Corporation contained herein shall continue during the period the Director is
a director, officer, employee or agent 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, and shall continue thereafter so long as the Director shall be
subject to any possible claim or threatened, pending or completed action,
suit or proceeding, whether civil, criminal or investigative, by reason of
the fact that the Director was a director of the Corporation or serving in
any other capacity referred to herein.
4. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by the
Director of notice of the commencement of any Action, the Director will, if a
claim in respect thereof is to be made against the Corporation under this
Agreement, notify the Corporation of the commencement thereof; but the
failure so to notify the Corporation will not relieve it from any liability
which it may have to the Director otherwise than under this Agreement except
to the extent the Corporation is materially and adversely prejudiced or
affected by such failure. With respect to any such Action as to which the
Director notifies the Corporation of the commencement thereof:
4.1 The Corporation will be entitled to participate therein at
its own expense; and
4.2 Except as otherwise provided below, to the extent that it may
wish, the Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to the Director. After notice from the Corporation
to the Director of its election so to assume the defense thereof, the
Corporation will not be liable to the Director under this Agreement for any
legal or other expenses subsequently incurred by the Director in connection
with the defense thereof other than reasonable costs of investigation or as
otherwise provided below. The Director shall have the right to employ one
separate counsel in such Action but the fees and expenses of such counsel
incurred after notice from the Corporation of its assumption of the defense
thereof shall be at the expense of the Director unless (i) the employment of
counsel by the Director has been authorized by the Corporation, (ii) the
Director shall have reasonably concluded that there may be a conflict of
interest between the Corporation and the Director in the conduct of the
defense of such Action or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such Action, in each of which cases
the reasonable fees and expenses of such counsel shall be at the expense of
the Corporation. The Corporation shall not be entitled to assume the defense
of any Action brought by or on behalf of the Corporation or as to which the
Director shall have made the conclusion provided for in (ii) above.
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4.3 The Corporation shall not be liable to indemnify the Director
under this Agreement for any amounts paid in settlement of any Action
effected without its written consent. The Corporation shall not settle any
Action in any manner which would impose any penalty or liability on the
Director without the Director's written consent. Neither the Corporation nor
the Director will unreasonably withhold its consent to any proposed
settlement.
5. ADVANCE OF EXPENSES. The provisions of Section 1 of this
Agreement notwithstanding, the Corporation agrees to reimburse the Director
within ten (10) business days after request therefor, and in advance of the
final determination of any matter for which a claim for indemnification may
be made pursuant to this Agreement, to the fullest extent permitted by law
for any reasonable legal or other expenses incurred by the Director either in
connection with investigating, preparing to defend or defending, or providing
evidence in or preparing to serve or serving as a witness with respect to,
any Action arising in any manner out of or in connection with the Director's
nomination and standing for election as a director of the Corporation and, if
elected a director of the Corporation, the Director's acting as a director of
the Corporation including, without limitation, in connection with the
enforcement of this Agreement and the indemnification obligations set forth
herein. If requested by the Director, the Corporation shall, within ten (10)
business days after request therefor, advance to the Director any such
reasonable legal or other expenses which the Director reasonably anticipates
he will incur.
6. REPAYMENT OF EXPENSES. The Director agrees that the Director
will promptly, upon demand, reimburse the Corporation for all reasonable
expenses paid by the Corporation in defending any Action against the Director
in the event and to the extent that it shall be ultimately determined that
the Director is not entitled to be indemnified by or receive contribution
from the Corporation for such expenses under the provisions of the State
Statute, the Bylaws, this Agreement or otherwise.
7. CONTRIBUTION. If indemnification is not available to the
Director under the provisions of this Agreement for any reason, the Director
shall nevertheless be entitled to contribution toward Losses. Such
contribution shall be (i) in such proportion as is appropriate to reflect the
relative benefits received by the Director and the Corporation resulting from
the Director serving as a director of the Corporation of (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Director on the one hand and the Corporation on the other in connection with
the Action or other action, event or omission which resulted in such Losses,
as well as any other relevant equitable considerations. The Director and the
Corporation agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capital allocation. The
determination of relative benefits and, if applicable, relative faults as set
forth above shall be made by the Corporation in good faith.
8. ENFORCEMENT.
8.1 The Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on the
Corporation hereby in order to
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induce the Director to stand for election as a director of the Corporation
and, if elected, to serve as a director of the Corporation, and acknowledges
that the Director is relying upon this Agreement. In connection with any
determination as to whether the Director is entitled to be indemnified under
this Agreement, the burden of proof will be on the Corporation to establish
that the Director is not so entitled.
8.2 In the event the Director is required to bring any action to
enforce rights or to collect monies due under this Agreement and is
successful in such action, the Corporation shall reimburse the Director for
all of the Director's reasonable fees and expenses in bringing and pursuing
such action.
9. SEPARABILITY. Each of the provisions 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 the other provisions hereof.
10. GOVERNING LAW; BINDING EFFECT; AMENDMENT AND TERMINATION.
10.1 This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Oklahoma.
10.2 This Agreement shall be binding upon the Director and upon
the Corporation, its successors and assigns, and shall inure to the benefit
of the Director, his heirs, personal representatives and assigns and to the
benefit of the Corporation, its successors and assigns.
10.3 The terms of this Agreement may be amended or modified only
an instrument in writing signed by the parties hereto.
11. NO PRESUMPTION. For purposes of this Agreement, the termination
of any Action by judgment, order, settlement (whether with or without court
approval), or conviction, or upon a plea of nolo contendere or its
equivalent, will not create a presumption that the Director did not meet any
particular standard of conduct or have any particular belief or that a court
has determined that indemnification is not permitted by applicable law.
12. LIABILITY INSURANCE. To the extent the Corporation maintains an
insurance policy or policies providing directors' liability insurance, the
Corporation will use its best efforts to cause the Director to be covered by
such policy or policies, in accordance with its or their terms, to the
maximum extent of the coverage available for any Director of the Corporation.
13. RESERVATION OF RIGHTS. The indemnification provided by this
Agreement shall not be deemed exclusive of any other rights to
indemnification to which the Director may be entitled under any statute,
certificate or articles of incorporation, by-law, agreement, vote of
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stockholders or disinterested directors or otherwise, and shall continue
after the Director has ceased to be a director or failed to be elected a
director.
14. NOTICES. For all purposes of this Agreement, all communications,
including without limitation notices, consents, requests, or approvals,
required or permitted to be given hereunder will be in writing and will be
deemed to have been duly given when hand delivered or dispatched by
electronic facsimile transmission (with receipt thereof orally confirmed), or
five (5) calendar days after having been mailed by United States registered
or certified mail, return receipt requested, postage prepaid, or one business
day after having been sent for next-day delivery by a nationally recognized
overnight courier service such as Federal Express, UPS, DHL or Airborne,
addressed to the Corporation (to the attention of the President or the
Secretary of the Corporation) at its address set forth below and to the
Director at his address set forth below, or to such other address as either
party may have furnished to the other in writing and in accordance herewith,
except that the notices of changes of address will be effective only upon
receipt.
15. WAIVER, ETC. No waiver or discharge of any provision of this
Agreement or a breach of any provision of this Agreement shall be effective
unless such waiver or discharge is agreed to in writing and signed by the
party to be charged. Any waiver on the part of any party hereto of any right
or interest under this Agreement shall not constitute the waiver of any other
right or interest or any subsequent waiver of such right or interest. The
failure of any party at any time to require performance of any provision of
this Agreement shall not affect the right of such party to require full
performance thereof at any time thereafter. Any waiver of any party of a
breach of any provision of this Agreement shall not constitute a waiver of
any subsequent breach thereof and shall not nullify the effectiveness of such
provision. The failure by any party to give notice of a breach of any
provision of this Agreement shall not constitute a waiver of such breach.
16. CAPTIONS; REFERENCES. The captions throughout this Agreement are
for convenience only and are not intended to limit or be used in the
interpretation of the provisions of this Agreement. References in this
Agreement to sections are references to Sections of this Agreement.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which
together will constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on and as of the day and year first above written.
CORPORATION: XXXXXX COMMUNICATIONS CORPORATION
By
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President
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00000 X. Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DIRECTOR:
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Director
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Address
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City State Zip
Telephone:
Facsimile:
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