Exhibit 10.4
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made and entered into
this ____ day of ________, 2005 between Xxxxxxx Industries, Inc., a Missouri
corporation (the "Company"), and _______________ ("Indemnitee"), a director of
the Company.
WHEREAS, the Indemnitee serves or has been nominated to serve on the
Company's board of directors (the "Board") and agrees, on the condition that he
be so indemnified, to continue to serve or to serve as a director of the Company
and in such capacity will render services to the Company;
WHEREAS, the Company is aware that because of the increased exposure to
litigation subjecting directors to expensive litigation risks, talented and
experienced persons are increasingly reluctant to serve or continue to serve as
directors and officers of corporations unless they are appropriately
indemnified;
WHEREAS, the Company is also aware that statutes and judicial decisions
regarding the duties of directors and officers are often difficult to apply,
ambiguous or conflicting and therefore fail to provide directors with adequate
guidance regarding the proper course of action;
WHEREAS, the Company desires to attract and retain the services of highly
experienced and capable individuals, such as Indemnitee, to serve as directors
of the Company and to indemnify its directors so as to provide them with the
maximum protection permitted by law;
WHEREAS, the Company believes that it is reasonable, prudent, fair, proper
and necessary to protect the Company's directors from the risk of judgments,
fines, settlements and other expenses which may occur as a result of their
service to the Company;
WHEREAS, in recognition of Indemnitee's reliance on the provisions of the
Articles of Incorporation of the Company, as amended ("Articles"), that require
indemnification of the Indemnitee, and in part to provide Indemnitee with
specific contractual assurance that the protection promised by such Articles
will be available to Indemnitee (regardless of, among other things, any
amendment to or revocation of such Articles or any change in the composition of
the Company's Board or acquisition transaction relating to the Company), the
Company wishes to provide in this Agreement for the indemnification of, and the
advancement of expenses to, Indemnitee to the full extent, whether partial or
complete, permitted by law and as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Indemnitee, intending to be legally bound, hereby
agree as follows:
SECTION 1. Definitions. For purposes of this Agreement, the following terms
shall have the meanings set forth below:
(a) "Change of Control" shall be deemed to have occurred in any one
of the following circumstances occurring after the date hereof: (i) there
shall have occurred an event required to be reported with respect to the
Company in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in response to any similar item or any
similar schedule or form) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), regardless of whether the Company is then
subject to such reporting requirement, (ii) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act) shall have become the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 15% or
more of the combined voting power of the Company's then outstanding voting
securities, (iii) the Company is a party to a merger, consolidation, sale
of assets or other reorganization, or a proxy contest, as a consequence of
which members of the Board in office immediately prior to such transaction
or event constitute less than a majority of the Board thereafter, (iv) all
or substantially all the assets of the Company are sold or disposed of in a
transaction or series of related transactions, or (v) the individuals who
on the date hereof constitute the Board (including, for this purpose, any
new director whose election or nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds of the directors
then still in office who were directors on the date hereof) cease for any
reason to constitute at least a majority of the Board.
(b) "Enterprise" means any Person of which Indemnitee is or was a
Fiduciary.
(c) "Expenses" means all direct and indirect costs (including,
without limitation, attorneys' fees, retainers, court costs, transcripts,
fees of experts, witness fees, travel expenses, appeal bonds, duplicating
costs, printing and binding costs, telephone charges, postage, delivery
service fees, and all other disbursements or out-of-pocket expenses)
actually and reasonably incurred in connection with (i) any Proceeding,
(ii) establishing or enforcing any right to indemnification or advancement
of expenses under this Agreement, applicable law, any other agreement, or
any provision of the Company's Articles of Incorporation or Bylaws now or
hereafter in effect or otherwise, or (iii) the review and preparation of
this Agreement on behalf of Indemnitee; provided, however, that "Expenses"
shall not include any Liabilities.
(d) "Fiduciary" means an individual serving as a director, officer,
trustee, general partner, managing member, fiduciary, board of directors'
committee member, employee or agent of (i) the Company, (ii) any resulting
corporation in connection with a consolidation or merger to which the
Company is a party, or (iii) any other Person (including an employee
benefit plan) at the request of the Company, including any service with
respect to an employee benefit plan, its participants or its beneficiaries.
(e) "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporate law and neither currently
is, nor in the five years previous to its selection or appointment has
been, retained to represent (i) the Company or the Indemnitee in any matter
material to either such party (other than as Independent Counsel with
respect to matters concerning the rights of Indemnitee under this Agreement
or of other indemnities under similar indemnification agreements) or (ii)
any other party to the Proceeding giving rise to a claim for
indemnification hereunder. For the avoidance of doubt, any law firm or
member of a law firm that shall have advised either party with respect to
the review and preparation of this Agreement shall not be Independent
Counsel for the purposes of this Agreement.
(f) "Liabilities" means liabilities of any type whatsoever incurred
by reason of (i) the fact that Indemnitee is or was a Fiduciary, or (ii)
any action taken (or failure to act) by him or her or on his or her behalf
in the capacity of Fiduciary, including, but not limited to, any judgments,
fines (including any excise taxes assessed on Indemnitee with respect to an
employee benefit plan), ERISA excise taxes and penalties, and penalties and
amounts paid in settlement of any Proceeding (including all interest,
assessments and other charges paid or payable in connection with or in
respect of such judgments, fines, penalties or amounts paid in settlement).
(g) "Person" means any individual, corporation, partnership, joint
venture, firm, association, limited liability company, trust, estate,
governmental unit or other enterprise or entity.
(h) "Proceeding" means any threatened, pending or completed
investigation, civil or criminal action, third-party action, derivative
action, claim, suit, arbitration, counterclaim, cross claim, alternative
dispute resolution mechanism, inquiry, administrative hearing or any other
proceeding whether civil, criminal, administrative, legislative or
investigative, including any appeal therefrom in which Indemnitee was
involved, or threatened to be involved, as a party, witness or otherwise by
reason of (i) the fact that Indemnitee is or was a Fiduciary, or (ii) any
action taken (or failure to act) by him or her or on his or her behalf in
the capacity of Fiduciary.
(i) "Subsidiary" means any Person of which a majority of the
outstanding voting securities or other voting equity interests are owned,
directly or indirectly by the Company.
SECTION 2. Services by the Indemnitee. The Indemnitee agrees to continue to
serve, or to serve, as a director of the Company at the will of the Company for
so long as the Indemnitee is duly elected and qualified, appointed or until such
time as the Indemnitee tenders a resignation in writing or is removed as a
director in accordance with the Missouri General and Business Corporation Law
(the "MGBCL"), or the Company's Bylaws as amended from time to time; provided,
however, the Indemnitee may at any time and for any reason resign from such
position.
SECTION 3. Indemnification.
(a) Indemnification. Subject to the further provisions of this
Agreement, the Company hereby agrees to and shall indemnify Indemnitee and
hold him or her harmless from and against any and all Expenses and
Liabilities incurred by Indemnitee or on Indemnitee's behalf, to the
fullest extent permitted by applicable law in effect on the date hereof,
and to such greater extent as applicable law may thereafter permit or
authorize.
(b) Presumptions.
(i) Upon making any request for indemnification under this
Agreement, Indemnitee shall be presumed to be entitled to such
indemnification and, in connection with any determination with respect
to entitlement to indemnification under Section 4(c) hereof, the
Company shall have the burdens of
coming forward with clear and convincing evidence and of persuasion to
overcome that presumption in connection with the making by any Person
of any determination contrary to that presumption. Neither the failure
of any Person to have made such determination prior to the
commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because Indemnitee has
met the applicable standard of conduct, nor an actual determination by
any Person that Indemnitee has not met any applicable standard of
conduct, shall be a defense to any such action by Indemnitee or create
a presumption that Indemnitee has not met the applicable standard of
conduct.
(ii) For purposes of any determination of good faith, Indemnitee
shall be deemed to have acted in good faith if Indemnitee's action is
based on the records or books of account of any Enterprise, including
financial statements, or on information supplied to Indemnitee by the
officers of such Enterprise in the course of their duties, or on the
advice of legal counsel for such Enterprise or on information or
records given or reports made to such Enterprise by an independent
certified public accountant or by an appraiser or other expert
selected by such Enterprise. The provisions of this Section 3(b) shall
not be deemed to be exclusive or to limit in any way the other
circumstances in which Indemnitee may be deemed or found to have met
the applicable standard of conduct set forth in this Agreement.
(iii) If the Person empowered or selected under Section 4(c)
hereof to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within ninety (90) calendar days
after the final determination in the Proceeding, the requisite
determination of entitlement to indemnification shall be deemed to
have been made and Indemnitee shall be entitled to such
indemnification, absent (A) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the request
for indemnification, or (B) a prohibition of such indemnification
under applicable law.
(iv) The knowledge and/or actions, or failure to act, of any
other Fiduciary shall not be imputed to Indemnitee for purposes of
determining any right to indemnification under this Agreement.
(c) Effect of Certain Proceedings. The termination of any
Proceeding by judgment, order, settlement, conviction or upon a plea
of nolo contendre or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of
the Company, and with respect to any criminal Proceeding, that
Indemnitee had reason to believe his or her conduct was unlawful.
SECTION 4. Advance of Expenses; Indemnification Procedure.
(a) Notice by Indemnitee and Claim for Indemnification. Indemnitee
shall, as promptly as reasonably practicable under the circumstances,
notify the Company in
writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or any
other matter which may be subject to indemnification of Liabilities or
advancement of Expenses covered by this Agreement; provided however, that
any delay or failure to so notify the Company shall relieve the Company of
its obligations hereunder only to the extent, if at all, that the Company
is actually and materially prejudiced by reason of such delay or failure.
Notice to the Company shall be directed to the [officer] of the Company, at
the addresses shown on the signature page of this Agreement (or such other
address as the Company shall designate in writing to Indemnitee) in
accordance with Section 17 hereof. To obtain indemnification or advancement
of Expenses under this Agreement, Indemnitee shall submit a written request
therefor, which shall include a reasonably comprehensive accounting of
amounts for which indemnification is being sought and shall refer to one or
more of the provisions of this Agreement pursuant to which such claim is
being made and may designate that payment be made to another Person on
Indemnitee's behalf.
(b) Advancement of Expenses. The Company shall advance all Expenses
incurred by Indemnitee or on Indemnitee's behalf, without regard to
Indemnitee's ultimate entitlement to indemnification under the other
provisions of this Agreement. Indemnitee hereby undertakes to repay such
amounts advanced unless Indemnitee is entitled to be indemnified by the
Company. Any advance, and undertakings to repay pursuant to this Section,
shall be unsecured and interest free. The advances to be made hereunder
shall be paid by the Company to Indemnitee within thirty (30) calendar days
following delivery of any written request, from time to time, by Indemnitee
to the Company. Any overdue amount of such Expenses to be paid by the
Company hereunder shall bear interest, compounded monthly, at a rate of 8%
per annum. Advances payable hereunder shall include any and all reasonable
Expenses incurred pursuing an action to enforce this right of advancement,
including Expenses incurred preparing and forwarding any statements to the
Company to support the advances claimed.
(c) Determination of Entitlement to Indemnification. A determination,
if expressly required by applicable law, with respect to Indemnitee's
entitlement to indemnification hereunder shall be made within ninety (90)
calendar days after final determination in the Proceeding by (i) a majority
vote of the Board who are not parties to the Proceeding in respect of which
indemnification is sought by Indemnitee, even though less than a quorum, or
(ii) by a committee of such directors designated by a majority vote of such
directors even though less than a quorum, or (iii) if there are no such
directors, or if such directors so direct, by Independent Counsel in a
written opinion to the Board (a copy of which opinion shall be delivered to
Indemnitee), or (iv) if so directed by the Board, by a vote of the
shareholders; provided, however, that if there has been a Change of Control
at or prior to the time of such notice by Indemnitee, Indemnitee's
entitlement to indemnification shall be determined within the foregoing
time period by Independent Counsel selected by Indemnitee, such
determination to be set forth in a written opinion to the Board (a copy of
which opinion shall be delivered to Indemnitee). The Company agrees to pay
the reasonable fees of any Independent Counsel and to fully indemnify such
Independent Counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement
pursuant hereto. If, pursuant to the foregoing, it is determined that
Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made (net of all amounts, if any, previously advanced
to the Indemnitee or other Persons on Indemnitee's behalf) within thirty
(30) calendar days from the date of notice to the Company of the
determination. Indemnitee shall reasonably cooperate in the making of such
determination, including providing upon reasonable advance request any
documentation or information which is not privileged or otherwise protected
from disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. Any costs or expenses
(including attorneys' fees and disbursements) incurred by Indemnitee in so
cooperating with the Person making such determination shall be included as
Expenses for the purposes of this Agreement. Nothing in this Section 4(c)
shall be construed to limit or modify the presumptions in favor of
Indemnitee set forth in Section 3(b).
(d) Notice to Insurers. If, at the time of the receipt of any notice
of any Proceeding pursuant to Section 4(a) hereof, the Company has
directors' and officers' liability insurance in effect, then the Company
shall give prompt notice of the commencement of such Proceeding to the
directors' and officers' liability insurers in accordance with the
procedures set forth in the respective policies. The Company shall
thereafter take all necessary or appropriate action to cause such insurers
to pay, on behalf of Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of such policies. The failure or
refusal of such insurers to pay any such amount shall not affect or impair
the obligations of the Company under this Agreement.
(e) Control of Defense; Counsel Costs; Settlement. In connection with
paying the Expenses of any Proceeding against Indemnitee under Section
4(b), the Company shall be entitled to elect to assume the defense of such
Proceeding, with counsel approved by Indemnitee, which approval shall not
be unreasonably withheld, by the delivery to Indemnitee of written notice
of its election to do so. After delivery of such notice, approval of such
counsel by Indemnitee and the retention of such counsel by the Company, the
Company shall not be liable to Indemnitee under this Agreement for any fees
of separate counsel subsequently incurred by Indemnitee with respect to the
same Proceeding; provided, that (i) Indemnitee shall have the right to
employ counsel in any such Proceeding at Indemnitee's expense; and
provided, further (ii) if (A) the employment of counsel by Indemnitee has
been authorized by the Company, (B) Indemnitee shall have reasonably
concluded that there is an actual conflict of interest between the Company
and Indemnitee in the conduct of any such defense, or (C) the Company shall
not have employed counsel to assume the defense of such Proceeding within a
reasonable period of time, then in any such event the fees and expenses of
Indemnitee's counsel shall be at the expense of the Company. The Company
shall not be entitled to assume the defense of any Proceeding brought in
the name of or on behalf of the Company or as to which Indemnitee shall
have made the conclusion provided for in (B) above. Notwithstanding the
foregoing, if at any time the Company fails to pay any Expenses with
respect to any Proceeding in accordance with Section 4(b) hereof,
Indemnitee shall immediately be entitled to assume and control his own
defense in such Proceeding with counsel of his own choice (by notice to the
Company), and will have all rights to advancement of Expenses and
indemnification of those Expenses hereunder. If two or more persons,
including the Indemnitee, may be entitled to indemnification from the
Company as parties to any Proceeding, the Company may require the
Indemnitee to
use the same legal counsel as the other parties. The Indemnitee shall have
the right to use separate legal counsel in the Proceeding, but the Company
shall not be liable to the Indemnitee under this Agreement for the fees and
expenses of separate legal counsel incurred after the notice from the
Company of the requirement to use the same legal counsel as the other
parties, unless the Indemnitee reasonably concludes that there may be a
conflict of interest between the Indemnitee and any of the other parties
required by the Company to be so represented by the same legal counsel. The
Company shall not settle any action or claim in any manner that would
impose any limitation or unindemnified penalty on Indemnitee without
Indemnitee's written consent, which consent shall not be unreasonably
withheld.
SECTION 5. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section
4(c) of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not timely made
pursuant to Section 4(b) hereof, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 4(c) hereof within
ninety (90) calendar days after final determination in the Proceeding, or
(iv) payment of indemnification is not made pursuant to Section 4(c) hereof
within thirty (30) calendar days after the date of notice to the Company of
the determination that Indemnitee is entitled to indemnification,
Indemnitee shall be entitled to an adjudication by a court of competent
jurisdiction of his entitlement to such indemnification, advancement of
Expenses, or to recover damages for breach of this Agreement. The Company
shall not oppose Indemnitee's right to seek any such adjudication.
(b) In the event that a determination shall have been made pursuant
to Section 4(c) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding commenced pursuant to this Section
5 shall be conducted in all respects as a de novo trial and Indemnitee
shall not be prejudiced by reason of that adverse determination. In any
judicial proceeding commenced pursuant to this Section 5 the Company shall
have the burdens of coming forward with clear and convincing evidence and
of persuasion that Indemnitee is not entitled to indemnification, and the
Company may not refer to or introduce into evidence any determination
pursuant to Section 4(c) of this Agreement adverse to Indemnitee for any
purpose. If a determination shall have been made pursuant to Section 4(c)
hereof that Indemnitee is entitled to indemnification, the Company shall be
bound by such determination in any judicial proceeding commenced pursuant
to this Section 5, absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law.
(c) In the event that Indemnitee, pursuant to this Section 5, seeks a
judicial adjudication to enforce his rights under, or to recover damages
for breach of, this Agreement, Indemnitee shall be entitled to recover from
the Company, and shall be indemnified by the Company against, any and all
Expenses actually and reasonably incurred by him or her in such judicial
adjudication. If it shall be determined in said
judicial adjudication that Indemnitee is entitled to receive part but not
all of the indemnification sought, Indemnitee shall be entitled to recover
from the Company, and shall be indemnified by the Company against, any and
all Expenses reasonably incurred by Indemnitee in connection with such
judicial adjudication.
(d) The Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 5 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and
shall stipulate in any such court that the Company is bound by all the
provisions of this Agreement.
SECTION 6. Nonexclusivity. The indemnification provided by this Agreement
shall be in addition to any rights to which Indemnitee may be entitled under the
Company's Articles of Incorporation, the Company's Bylaws, any agreement, any
vote of shareholders or disinterested directors, the MGBCL or otherwise, both as
to action in Indemnitee's official capacity and as to action in another capacity
while holding such office.
SECTION 7. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses or Liabilities actually or reasonably incurred by
Indemnitee in investigation, defense, appeal or settlement of any Proceeding,
but not, however, for the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such Expenses and Liabilities to which
Indemnitee is entitled. Moreover, notwithstanding any other provision of this
Agreement, in the event that Indemnitee has been successful on the merits or
otherwise in defense of any or all claims for which indemnification is sought
hereunder, Indemnitee shall be indemnified against all Expenses incurred in
connection therewith.
SECTION 8. Mutual Acknowledgment. Both the Company and Indemnitee
acknowledge that in certain instances, federal or state law or applicable public
policy may prohibit the Company from advancing expenses or indemnifying
Indemnitee under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Company may be required in the future to undertake with
the Securities and Exchange Commission to submit the question of indemnification
to a court in certain circumstances for a determination of the Company's right
under public policy to indemnify Indemnitee. Any action taken pursuant to the
terms of this Section 8 shall not constitute a breach of this Agreement.
SECTION 9. Directors' and Officers' Liability Insurance. The Company shall
use its best efforts to obtain and maintain on an ongoing basis a policy or
policies of insurance on commercially reasonable terms with reputable insurance
companies providing liability insurance for Fiduciaries, including Indemnitee,
in respect of acts or omissions occurring while serving in such capacity, and to
ensure the Company's performance of its indemnification obligations under this
Agreement, on terms with respect to coverage and amount (including with respect
to the payment of Expenses) no less favorable than those of such policy or
policies of insurance in effect on the date hereof. To the extent that the
Company maintains a policy or policies of insurance pursuant to this Section 9,
Indemnitee shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for any Fiduciary
under such policy or policies.
SECTION 10. Severability. If this Agreement or any portion hereof shall be
invalidated or ruled to be unenforceable on any ground by any court of competent
jurisdiction, then the Company shall nevertheless indemnify Indemnitee to the
full extent permitted by applicable law and the court is expressly requested and
authorized to construe this Agreement in order, as closely as possible, to
provide the benefits to Indemnitee intended by this Agreement.
SECTION 11. Duration of Agreement. The indemnification provided under this
Agreement shall continue as to the Indemnitee for any action taken or not taken
while serving as a Fiduciary even though Indemnitee may have ceased to serve in
such capacity at the time of any action or other covered proceeding.
SECTION 12. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify Indemnitee as follows:
(a) Excluded Acts. No indemnification shall be made for any acts or
omissions or transactions if and to the extent that it shall be finally
determined, that a director may not be relieved of liability arising from
any such acts or omissions or transactions under the MGBCL;
(b) Claims Initiated by Indemnitee. No indemnification or advance of
Expenses to Indemnitee shall be made with respect to Proceedings or claims
initiated or brought voluntarily by Indemnitee and not by way of defense or
compulsory counterclaim, except with respect to such Proceedings brought to
establish or enforce a right to indemnification or advancement of Expenses
under this Agreement or any other statute or applicable law or otherwise as
required under Section 351.355.3 of the MGBCL or any provision of the
Articles of Incorporation or Bylaws of the Company, unless (i) the Board of
Directors has approved the initiation or bringing of such Proceeding (or
any part of any Proceeding) or (ii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers vested in
the Company under applicable law;
(c) Lack of Good Faith. No indemnification shall be made to indemnify
Indemnitee for any Expenses or Liabilities incurred by Indemnitee with
respect to any Proceedings instituted by Indemnitee to enforce or interpret
this Agreement, if it shall be determined by a final judgment or other
final adjudication, not subject to further appeal or review, that each of
the material assertions made by Indemnitee in such proceeding was not made
in good faith or was frivolous;
(d) Insured Claims. No indemnification shall be made to indemnify
Indemnitee for Expenses or Liabilities of any type whatsoever if, but only
to the extent that, Indemnitee shall have actually received payment with
respect to any such Expenses or Liabilities from an insurer under any
policy of directors' and officers' liability insurance maintained by the
Company, and any such payment shall not be recovered (in whole or in part)
from Indemnitee by such insurer;
(e) Claims under Section 16(b). No indemnification shall be made
under this Agreement for Expenses, Liabilities and the payment of profits
arising from the purchase and sale by Indemnitee of securities in violation
of Section 16(b) of the Exchange Act or any similar state or local law with
respect to the disgorgement of "short swing" profits; or
(f) Unauthorized Settlements. No indemnification shall be made under
this Agreement for any amounts paid in settlement of any Proceedings
covered hereby without the prior consent of the Company to such settlement,
which consent shall not be unreasonably withheld;
provided, that nothing in this Section 12 shall be construed to limit or modify
the presumptions in favor of Indemnitee set forth in Section 3(b).
SECTION 13. Effectiveness of Agreement. The indemnification permitted under
the terms of certain provisions of this Agreement shall be effective as of the
date first-above written and shall apply to acts or omissions of Indemnitee
which occurred prior to such date if Indemnitee was a Fiduciary at the time such
act or omission occurred.
SECTION 14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, and all of which shall
constitute one and the same agreement.
SECTION 15. Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors,
assigns, including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs, and executors,
administrators, personal and legal representatives. The Company shall
require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all or substantially all, or a
substantial part of the business or assets of the Company, by written
agreement in the form and substance satisfactory to Indemnitee, expressly
to assume and agree to perform this Agreement in the manner and to the same
extent that the Company would be required to perform if no such succession
had taken place.
(b) The right to indemnification and advancement of Expenses provided
by this Agreement shall continue as to a person who has ceased to be a
Fiduciary. If the Indemnitee is deceased and would have been entitled to
indemnification under any provision of this Agreement, when requested in
writing by the spouse of the Indemnitee, and/or the Indemnitee's heirs,
executors, administrators, legatees or assigns, the Company shall provide
appropriate evidence of the Company's agreement set out herein.
SECTION 16. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. The observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) by the party entitled to enforce such term only by a writing
signed by the party against which such waiver is to be asserted. No waiver of
any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
SECTION 17. Notice. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand or by courier and receipted for by the party addressee, on the
date of such receipt, (ii) if mailed by domestic certified or registered mail
with postage prepaid, on the third business day after the date postmarked or
(iii) if sent by facsimile transmission and fax confirmation is received, on the
next business day following the date on which such facsimile transmission was
sent. Addresses for notice to either party are as shown on the signature page of
this Agreement, and may be subsequently modified by written notice.
SECTION 18. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall, at the Company's expense, execute all
documents required and do all acts that may be necessary to secure such rights
and to enable the Company effectively to bring suit to enforce such rights.
SECTION 19. Evidence of Coverage. Upon request by Indemnitee, the Company
shall provide copies of any and all directors' and officers' liability insurance
policies obtained and maintained in accordance with Section 9 of this Agreement.
The Company shall promptly notify Indemnitee of any changes in the Company's
directors' and officers' liability insurance coverage.
SECTION 20. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for herein
is held by a court of competent jurisdiction to be unavailable to Indemnitee in
whole or part, the parties agree that, in such event, the Company shall
contribute to the payment of Indemnitee's Expenses and Liabilities in an amount
that is just and equitable in the circumstances, taking into account, among
other things, contributions by other directors and officers of the Company
pursuant to indemnification agreements or otherwise. The Company and Indemnitee
agree that, in the absence of personal enrichment of Indemnitee, or acts of
intentional fraud or dishonest or criminal conduct on the part of Indemnitee, it
would not be just and equitable for Indemnitee to contribute to the payment of
Expenses and Liabilities arising out of a Proceeding in an amount greater than:
(i) in a case where Indemnitee is a director of the Company or any of its
subsidiaries but not an officer of either, the amount of fees paid to Indemnitee
for serving as a director during the 12 months preceding the commencement of
such Proceeding; or (ii) in a case where Indemnitee is a director of the Company
or any of its subsidiaries and is an officer of either, the amount set forth in
clause (i) plus 5 percent of the aggregate cash compensation paid to Indemnitee
for serving as such officer(s) during the 12 months preceding the commencement
of such Proceeding; or (iii) in a case where Indemnitee is only an officer of
the Company or any of its subsidiaries, 5 percent of the aggregate cash
compensation paid to Indemnitee for serving as such officer(s) during the 12
months preceding the commencement of such Proceeding. The Company shall
contribute to the payment of Expenses and Liabilities covered hereby to the
extent not payable by Indemnitee pursuant to the contribution provisions set
forth in the preceding sentence.
SECTION 21. No Duplication of Payments. The Company shall not be liable
under this Agreement to make any payment in connection with any Expense or
Liability of Indemnitee to the extent Indemnitee has otherwise actually received
payment (under any insurance policy, Articles of Incorporation, Bylaws or
otherwise) of the amounts otherwise indemnifiable hereunder. This Agreement
shall supersede any prior indemnification agreement between Indemnitee and the
Company.
SECTION 22. Specific Performance. The Company and the Indemnitee recognize
that if any provision of this Agreement is violated by the Company, Indemnitee
may be without an adequate remedy at law. Accordingly, in the event of any such
violation, the Indemnitee shall be entitled, if Indemnitee so elects, to
institute proceedings, either in law or at equity, to obtain damages, to enforce
specific performance, to enjoin such violation, or to obtain any relief or any
combination of the foregoing as Indemnitee may elect it to pursue.
SECTION 23. Representations of the Company. The Company represents and
warrants to the Indemnitee that neither the execution and delivery of this
Agreement by the Company nor the consummation of the transactions set forth
herein or contemplated hereby will conflict with or result in any violation of,
or constitute a breach of, or a default under, the Articles of Incorporation or
Bylaws of the Company, or under any contract, instrument, agreement,
understanding, mortgage, indenture, lease, insurance policy, permit, concession,
grant, franchise, license, judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to the Company.
SECTION 24. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
state of Missouri without application of the conflict of laws principles
thereof.
SECTION 25. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction and venue of the courts of the state of
Missouri for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement.
SECTION 26. Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement between the parties hereto with respect
to the matters covered hereby, and any other prior or contemporaneous oral or
written understandings or agreements with respect to the matters covered hereby
are superseded by this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above-written.
XXXXXXX INDUSTRIES, INC.
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
By:
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Name:
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Title:
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Attention:
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Facsimile: 620-___-____
AGREED TO AND ACCEPTED: INDEMNITEE:
Name:
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[Address]
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[Facsimile]
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