Exhibit 10.25
Indemnification Agreement
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This AGREEMENT, made and entered into as of the 10/th/ day of July,
2001, by and between KAISER VENTURES LLC., a Delaware limited liability company
(the "Company") and ___________________("Manager").
W I T N E S S E T H:
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WHEREAS, Manager in the course of his current and future service to the
Company may be made a party to a legal action or other proceeding which may
result in personal economic loss to Manager; and
WHEREAS, the Company desires to retain the current and future services
of Manager and to reimburse Manager for any such personal economic losses of
Manager resulting from the good faith performance of Manager's duties; and
WHEREAS, the indemnification provisions of the Operating Agreement of
the Company, as it may be amended from time to time, may be subject to reduction
or elimination at any time without the consent of Manager, and Company desires
to provide indemnification to Manager to the fullest extent permitted by law
despite any such change.
NOW, THEREFORE, in consideration of the services of Manager to the
Company, Company and Manager agree as follows:
1. Indemnification. The Company agrees to indemnify Manager according
to the terms, conditions and procedures of this Agreement and Exhibit A attached
hereto and incorporated herein by this reference from the effective date hereof
in perpetuity. Any Capitalized Terms not defined herein shall be as defined in
Exhibit A.
2. Notice; Right to Counsel. Within 30 days after receiving notice of
any claim or threatened claim against Manager by reason of the fact that he is
or was a manager, officer, employee or agent of the Company or is or was serving
at the request of the Company as a manger, director, officer, employee or agent
of another Person, Manager shall notify the Company in writing. Failure to so
notify the Company shall not relieve the Company form any liability under this
Agreement, except to the extent that the failure to give such notice is
detrimental to the Company. Furthermore, Manager shall have the right to select
his or her own legal counsel in the defense of any such claim or threatened
claim; provided, however, in the event that any other Indemnified Person(s) are
not known to be in any substantially different legal position with respect to
such claim or threatened claim, the Company will reimburse Manager and all such
other Indemnified Persons for the cost of only one counsel, who shall be
reasonably selected by the majority of the Indemnified Persons to be so
represented.
3. Amendments to Limited Liability Operating Agreement. Any
amendments to Limited Liability Operating Agreement of the Company ("Operating
Agreement") which reduce or eliminate indemnification rights of persons there
under shall have no effect with respect to this Agreement or the rights granted
hereunder, and thereafter Manager shall continue to have all the rights granted
hereunder, regardless of such amendments to the Operating Agreement [for future
acts as well?]. However, if the Operating Agreement of the Company or the
Delaware Limited Liability Company Act (the "Act") are amended to provide for
greater indemnification
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rights or privileges, this Agreement shall not be construed so as to limit
Manager's rights and privileges to the terms hereof, and Manager shall be
entitled to the full benefit of any such additional rights and privileges.
Furthermore, to the extent that the Act or other applicable law now or hereafter
establishes that indemnification cannot be made by the Company according to this
Agreement in any respect, this Agreement shall be interpreted as being
simultaneously amended to provide indemnification hereunder to the fullest
extent permitted by law.
4. Successors and Assigns. This Agreement shall be binding upon and
shall inure to any and all successors, assigns, heirs, estates, representatives
and administrators of the parties hereto.
5. No Amendments. This Agreement may not be amended, modified or
terminated except by the express written consent thereto by both parties hereto.
6. Other Agreement. This Agreement is supplementary to and not
exclusive of other agreements between the Company and Manager, which may exist
now, or in the future to the extent such agreements are not inconsistent
herewith.
7. Survival. The rights of Manager under this Agreement shall survive
and continue in effect after the termination of services to the Company by
Manager, whether by death, retirement or otherwise.
8. Severability. If any provision or application of this Agreement is
held unlawful or unenforceable in any respect, such illegality or
unenforceability shall not affect other provisions or applications which can be
given effect, and this Agreement shall be construed as if the unlawful or
unenforceable provision or application had never been contained herein or
prescribed hereby.
9. Governing Law. This Agreement shall be interpreted and governed by
the laws of the State of Delaware.
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement effective as of, notwithstanding the actual date of execution.
"Company" "Manager"
Kaiser Ventures LLC
By:
_____________________________________ __________________________
Xxxxxxx X. Xxxxxxxx, CEO & President Manager
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Exhibit "A"
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1. Definitions. In addition to any other term defined in this Agreement,
the following terms shall have the meaning specified below.
1.1 "Board" means the Board of Managers of the Company.
1.2 "Company" means Kaiser Ventures LLC, a Delaware limited liability
company.
1.3 "Expenses" includes reasonable attorneys' fees, disbursements and
retainers, court costs, transcript costs, fees of accountants, experts and
witnesses, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery, service fees, and all other expenses of
the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, or being or preparing to be a
witness or other participant in a Proceeding.
1.4 "Indemnified Person" means a manager, officer or employee of the
Company.
1.5 "Liabilities" means (i) any Expenses and (ii) any other judgments,
fines, penalties, ERISA excise taxes, and amounts paid in settlement of any
claim, in connection with any Proceeding.
1.6 "Person or "person" means an individual, general partnership,
limited partnership, limited liability company, corporation, trust, estate, real
estate investment trust association or any other entity.
1.7 "Proceeding" means any action, suit, arbitration, alternative
dispute resolution mechanism, investigation, administrative hearing or other
proceeding, whether civil, criminal, administrative or investigative in nature,
except a proceeding initiated by a Person pursuant to Section 2.
2. Indemnification of Indemnified Persons.
2.1 General. The Company shall indemnify any Indemnified Person
against all Liabilities that he or she has actually and reasonably incurred or
paid in connection with a Proceeding described in Section 3.1 if he or she (i)
meets the standard of conduct described in Section 2.2, and (ii) properly makes
application for indemnification as described in Section 3. The Board may, in its
sole discretion, indemnify any other Person, who is not an Indemnified Person,
against all Liabilities that such Person has actually and reasonably incurred or
paid in connection with a Proceeding on terms determined by the Board at that
time, which terms may be less favorable to the indemnitee than those described
in the mandatory indemnification provisions below.
2.2 Standard of Conduct. The Company shall only indemnify a Person if,
in connection with his or her actions which are the subject of the Proceeding,
(i) he or she shall have acted in good faith and in a manner he or she
reasonably believed was consistent with the best interests of the Company, and
(ii) if the Proceeding is a criminal Proceeding, he or she had no reasonable
cause to believe that his or her conduct was unlawful. The Company shall not
indemnify any Person if that Person's action is finally adjudged to have been
willful misconduct, knowingly fraudulent or deliberately dishonest.
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2.3 Burden of Proof. An Indemnified Person shall be conclusively
presumed to have met these standards of conduct unless a court of competent
jurisdiction finally determines to the contrary. The Company shall bear the
burden of proof of establishing by clear and convincing evidence that such
Indemnified Person failed to meet the applicable standard of conduct. The
termination of any Proceeding, whether by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that an Indemnified Person did not meet the
applicable standard of conduct.
2.4 Payment of Expenses. Expenses incurred by an Indemnified Person
in connection with a Proceeding shall be paid by the Company in advance of the
final disposition of the Proceeding upon receipt of his or her written
undertaking to repay any advances if it is ultimately determined that he or she
is not entitled to be indemnified by the Company as authorized in this
Agreement.
3. Application for Indemnification.
3.1 Proceedings Covered. Any Person may apply for indemnification if
he or she was or is a party to, or is threatened to be made a party to, or
otherwise becomes involved in, any Proceeding (including any Proceeding by or in
the right of the Company), in the case of an Indemnified Person, because of his
or her status as such, and in the case of any other Person, because he or she is
or was an agent of the Company. Except with the consent of the Board or as
provided in Section 3.3 with respect to a Proceeding brought to establish or
enforce a right to indemnification under this Agreement, the Company will not be
required to indemnify any Person, including any Indemnified Person, with respect
to a Proceeding or portion of a Proceeding which that Person initiated or
brought voluntarily and not by way of defense.
3.2 Content of Application. The application for indemnification shall
be in writing, shall state the basis for the claim for indemnification, and
shall include a copy of any notice or other document served on or otherwise
received by the Person making the application. The application shall also
contain a statement that the Person making the application has met the
applicable standard of conduct described in Section 2.2 and will comply with the
provisions of this Agreement.
3.3 Determination of Right to Indemnification. The determination of
whether or not to indemnify an Indemnified Person in connection with any
Proceeding shall be made by any of the following means:
(i) by the managers of the Company, by a majority vote of a
quorum consisting of managers who are not parties to the Proceeding; or
(ii) if no such quorum is obtainable or, even if obtainable, a
quorum of the disinterested managers of the Company so directs, by independent
legal counsel in a written opinion; or
(iii) by the members of the Company, by a vote of a Majority (as
defined in the Operating Agreement) of those members, whether or not
constituting a quorum, who are not parties to the Proceeding.
4. Enforcement of Indemnification Right. The right of an Indemnified
Person to indemnification or an advance of Expenses as provided by this
Agreement shall be enforceable in
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any court of competent jurisdiction. Any determination by the managers of the
Company, members of the Company, or the Company's independent legal counsel that
indemnification or an advance is improper in the circumstances, or any failure
to make such a determination, shall not be a defense to the action or create a
presumption that the relevant standard of conduct has not been met. An
Indemnified Person's Expenses incurred in connection with any Proceeding brought
to enforce his or her right to indemnification shall also be indemnified by the
Company, regardless of the outcome, unless a court of competent jurisdiction
finally determines that each of the material assertions made by such Indemnified
Person in the Proceeding was not made in good faith or were frivolous.
5. Limitations on Indemnification. No payments pursuant to this
Agreement shall be made by the Company if a court of competent jurisdiction
finally determines that any indemnification or advance of Expenses hereunder is
unlawful.
6. Insurance.
6.1 General. The Company shall have the power to purchase and
maintain insurance or other financial arrangement on behalf of any Person who is
or was a Company Person or an agent of the Company against any liability
asserted against such Person and incurred by such Person in any such capacity,
or arising out of such Person's status as a Company Person or agent, whether or
not the Company would have the power to indemnify such Person against such
liability under the provisions of this Agreement.
6.2 Company Right to Reimbursement. If a Person receives payment from
any insurance carrier, or from the plaintiff in any action against such Person,
with respect to indemnified amounts after payment of such indemnified amounts
have been made by the Company pursuant to this Agreement, such Person shall
reimburse the Company for the amount by which the sum of (i) the payment by the
insurance carrier or plaintiff and (ii) all payments by the Company to such
Person, exceeds such indemnified amounts. In making this calculation, any
insurance proceeds that are required to be reimbursed to the insurance carrier
under the terms of its insurance policy shall not be counted as payments to such
Person. In addition, upon payment of indemnified amounts under the terms and
conditions of this Agreement, the Company shall be subrogated to such Person's
rights against any insurance carrier with respect to such indemnified amounts
(to the extent permitted under such insurance policies). Such right of
subrogation shall be terminated upon receipt by the Company of the amount to be
reimbursed by such Person pursuant to the second sentence of this Section 6.3.
7. Other Terms of Indemnification.
7.1 Timing of Payments. Any indemnification or advance shall be made
promptly, but in any case no later than thirty (30) days after the Company has
received a written request for payment from the Indemnified Person seeking
indemnification, unless the Company has determined that he or she is not
entitled to indemnification hereunder.
7.2 Partial Indemnification. If an Indemnified Person is entitled
under any provision of this Agreement to indemnification for a portion of his or
her Liabilities, but not for the total amount, the Company shall nevertheless
indemnify him or her for the portion of such Liabilities to which he or she is
entitled, except that no indemnification shall be given for Expenses in
connection with a Proceeding brought by the Company if he or she is found liable
on any portion of the claims in such Proceeding.
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7.3 Indemnity Not Exclusive. The indemnification and advancement of
Expenses provided by this Agreement shall not be exclusive of any other rights
to which any Indemnified Person seeking indemnification or advancement of
Expenses may be entitled under any agreement, vote of Members, determination of
the Board, or otherwise, both as to action in such Indemnified Person's capacity
as such and as to action in another capacity while serving as an Indemnified
Person. Any repeal or modification hereof or thereof shall not affect any such
rights then existing.
7.4 Heirs, Executors and Administrators. The indemnification and
advancement of Expenses provided by this Agreement shall, continue as to an
Indemnified Person who is no longer acting in such capacity, and shall inure to
the benefit of his or her heirs, executors and administrators, unless otherwise
provided when authorized or ratified.
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