EXHIBIT 10.1
INDEMNITY AGREEMENT
This Indemnity Agreement (this AGREEMENT) dated as of [________] 1998,
is by and between CRC-Xxxxx International, Inc., a Delaware corporation (the
COMPANY), and the person whose name is set forth on the signature page hereof
under the heading "INDEMNITEE," his affiliates and/or "controlling person"
(within the meaning of applicable securities laws) ((COLLECTIVELY REFERRED TO
HEREIN AS THE INDEMNITEE).
R E C I T A L S
A. Indemnitee will serve as an officer and/or director of the Company,
and the Company wishes Indemnitee to serve in such capacity;
B. the Company's Bylaws (the BYLAWS), and its Articles of Incorporation
(the ARTICLES), provide for the indemnification of the directors, officers,
employees and agents of the Company and also provide that the Company can
further indemnify such parties pursuant to an agreement or otherwise;
C. the Delaware General Corporation Law, as amended (the DGCL),
specifically provides that indemnification and advancement of expenses provided
in such statute shall not be exclusive of any other rights under any agreement,
and thereby contemplates that agreements may be entered into between the Company
and its directors, officers, employees and agents with respect to the
indemnification of such persons; and
D. to induce Indemnitee to serve as an officer and/or director of the
Company in the future, the Company has deemed it to be in its best interest to
enter into this Agreement with Indemnitee.
W I T N E S S E T H
NOW, THEREFORE, in consideration of Indemnitee's agreement to serve as
an officer or a member of the Company's Board of Directors (the BOARD) beginning
[_______], the mutual promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto stipulate and agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following
capitalized terms shall have the meanings ascribed to them in this Section.
ACTION - any threatened, pending or completed action, suit
or proceeding, whether civil, criminal,
administrative, or investigative.
AFFILIATE - any corporation, partnership (general or limited),
limited liability company, joint venture, trust,
or any other organization or enterprise, foreign
or domestic (i) in which the Company owns, either
directly or indirectly, more than 50% of the
outstanding
voting capital stock or other ownership interest
or (ii) over which the Company, either directly or
indirectly, exercises, or has the ability to
exercise, control or dominion.
AGENT - a duly appointed and authorized officer, director,
employee, agent, representative, or fiduciary.
BOARD - the Board of Directors of the Company as
constituted from time to time.
CHANGE IN CONTROL - shall have occurred if the Company's stockholders
approve (x) a merger or consolidation of the
Company with any other entity (other than a merger
or consolidation which would result in the
Company's voting securities outstanding
immediately prior thereto continuing to represent
(either by remaining outstanding or by being
converted into voting securities of the surviving
entity) at least 51% of the combined voting power
of the voting securities of the Company or such
surviving entity outstanding immediately after
such merger or consolidation), (y) a plan of
complete liquidation of the Company or (z) an
agreement or agreements for the sale or
disposition, in a single transaction or a series
of related transactions, by the Company of all or
substantially all of its property and assets.
Notwithstanding the foregoing, events otherwise
constituting a Change in Control in accordance
with the foregoing shall not constitute a Change
in Control if such events are solicited by the
Company and are approved, recommended or supported
by the Board in actions taken prior to, and with
respect to, such events.
DAMAGES - losses, penalties, fines, judgments, amounts paid
in settlement, or other damages and expenses
(including reasonable legal and investigative
expenses).
DELAWARE COURT - a court in the State of Delaware.
ENTERPRISE - a corporation, general partnership, limited
partnership, limited liability company, joint
venture, trust or any other organization or
enterprise.
2. AGREEMENT TO SERVE. Indemnitee will serve as an officer or a director
of the Company and/or its Affiliates at the will of the Company or under
separate contract, if such exists, and/or will serve as an officer or a director
of such other Affiliate Enterprise as the Company may request, and shall act in
each such capacity so long as he is duly authorized by the Company in accordance
with the Bylaws or Articles or until such time as Indemnitee tenders his
resignation in writing at the office of the Company.
3. INDEMNIFICATION
(a) GENERAL INDEMNIFICATION.
(i) Subject to the exclusions set forth in SECTION 9, the
Company shall indemnify Indemnitee:
(1) If Indemnitee is a person who was or is a party
or is threatened to be made a party to any Action (other
than an action by or in the right of the Company or any of
its Affiliates), because he is or was acting as an Agent
of the Company or any of its Affiliates, or is or was
serving at the request of the Company as an Agent of
another Enterprise, or because of anything done or not
done by him in any such capacity, against Damages incurred
by him in connection with the investigation, defense or
appeal of such Action if:
(a) in the case of a civil, administrative
or investigative (other than criminal) action, suit
or proceeding, he acted in good faith and in a
manner he reasonably believed to be in, or not
opposed to, the best interests of the Company; or
(b) in the case of a criminal action, suit
or proceeding, he reasonably believed his conduct
was lawful;
(2) If Indemnitee is a person who was or is a party
or is threatened to be made a party to any Action by or in
the right of the Company or any of its Affiliates to
procure a judgment in its favor because he is or was
acting as an Agent of the Company or any of its
Affiliates, or is or was serving at the request of the
Company as an Agent of another Enterprise, or because of
anything done or not done by him in any such capacity,
against all Damages incurred by him in connection with the
investigation, defense, settlement or appeal of such
Action if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best
interests of the Company; PROVIDED, HOWEVER, that no
indemnification under this subsection shall be made in
respect of any claim, issue, or matter as to which such
person shall have been adjudged to be liable to the
Company or any of its Affiliates unless and then only to
the extent that a Delaware Court or the court in which
such Action was brought shall determine upon application
that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses
which the Delaware Court or such other court shall deem
proper; and
(ii) To the extent Indemnitee has been successful on the
merits or otherwise in defense of any Action referred to in
Section 3(a)(i), or in the defense of any claim, issue or matter
described therein, against all Damages incurred by him in
connection with the investigation, defense or appeal of such
Action.
(b) ADDITIONAL INDEMNITY. The parties hereto intend that
Indemnitee shall be indemnified pursuant to this Agreement to the
fullest extent authorized and permitted by the provisions of the
Articles, Bylaws, DGCL, or any other applicable law. If the Articles,
Bylaws, DGCL, or any other applicable law is amended or modified after
the date hereof, the parties hereby agree that Indemnitee shall be
entitled any additional indemnification rights resulting from such
amendment or modification, but only to the extent that such amendment or
modification permits the Company to provide broader indemnification
rights than the Articles, Bylaws, DGCL, or applicable law permitted the
Company to provide prior to such amendment or modification.
(c) INDEMNIFICATION OF ESTATE. If Indemnitee is deceased and is
entitled to indemnification under any provision of this Agreement, the
Company shall indemnify Indemnitee's estate and his spouse, heirs,
administrators, and executors against, and the Company shall, and does
hereby agree to, assume any and all Damages incurred by or for
Indemnitee or his estate in connection with the investigation, defense,
settlement or appeal or any such Action. Further, when requested in
writing by the spouse of Indemnitee and/or the heirs, executors or
administrators of Indemnitee's estate, the Company shall provide
appropriate evidence of the Company's agreement set out herein to
indemnify Indemnitee against and to assume such Damages.
(d) PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some
or a portion of the Damages incurred by or for him in the investigation,
defense, appeal or settlement of such Action but not, however, for all
of the total amount thereof, the Company shall nevertheless indemnify
Indemnitee against the portion thereof to which Indemnitee is entitled.
4. NOLO CONTENDERE. The termination of any Action which is covered by
this Agreement by judgment, order, settlement or conviction, or upon a plea of
NOLO CONTENDERE or its equivalent shall not, of itself, create a presumption for
the purposes of this Agreement that Indemnitee 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.
5. PAYMENT OF CLAIMS; DETERMINATION OF INDEMNIFICATION RIGHTS
(a) DETERMINATION OF RIGHT TO INDEMNIFICATION. Anything contained
elsewhere herein to the contrary notwithstanding, the determination as
to whether or not Indemnitee has met the standard of conduct required to
qualify and entitle him, partially or fully, to indemnification under
the provisions hereof shall be made by the Board by a majority vote of a
quorum consisting of directors who were not parties to the subject
Action; PROVIDED, HOWEVER, that if such quorum is not obtainable, the
Board, by a majority vote of disinterested directors, shall appoint
independent legal counsel (who may be the outside counsel regularly
employed by the Company), which will issue a written opinion stating
whether Indemnitee has met the appropriate standard of conduct set forth
herein; PROVIDED FURTHER, if all directors are deemed to be interested,
such independent legal counsel shall be appointed by a majority vote of
the entire Board. The fees and expenses of counsel in connection with
making said determination shall be paid by the Company and, if requested
by such counsel, the Company shall give such counsel
an appropriate written agreement with respect to the payment of its fees
and expenses and such other matters as may be reasonably requested by
counsel.
(b) CLAIMS FOR INDEMNIFICATION. Indemnitee shall make any and all
claims for indemnification or requests for advances covered by this
Agreement in writing. Such written claim or request shall contain
sufficient information to reasonably inform the Company about the nature
and extent of the indemnification or advance sought by Indemnitee.
(c) JUDICIAL REVIEW OF INDEMNIFICATION. Notwithstanding Section
5(a), Indemnitee may, either before or within two years after a
determination regarding indemnification has been made pursuant to the
terms of this Agreement, petition a Delaware Court or any other court of
competent jurisdiction to determine whether Indemnitee is entitled to
indemnification pursuant to the provisions hereof, and such court shall
thereupon have the exclusive authority to make such determination unless
and until such court dismisses or otherwise terminates such Action
without having made such determination. Such court shall, as petitioned,
make an independent determination of whether Indemnitee was entitled to
indemnification pursuant to his Agreement, and, if so, the extent of
such indemnification. If the court shall determine that Indemnitee is
entitled to indemnification hereunder as to any claim, issue, or matter
involved in the Action with respect to which there has been no prior
determination pursuant hereto or with respect to which there has been a
prior determination pursuant hereto that Indemnitee was not entitled, or
was only partially entitled, to indemnification hereunder, the Company
shall pay all Damages incurred by Indemnitee in connection with such
judicial determination , as well as the amount of indemnification
specified by such court (to the extent that such indemnification has not
already been paid).
(d) BURDEN OF PROOF. If under applicable law the entitlement of
Indemnitee to be indemnified under this Agreement depends on whether a
standard of conduct has been met, the burden of proof of establishing
that Indemnitee did not act in accordance with such standard of conduct
shall rest with the Company. Indemnitee shall be presumed to have acted
in accordance with such standard and be entitled to indemnification or
advancement of expenses hereunder, as the case may be, unless, based
upon a preponderance of the evidence, it shall be determined by the
party reviewing Indemnitee's conduct that the Indemnitee did not meet
such standard.
6. CHANGE IN CONTROL. If there has not been a Change in Control after
the date hereof, the determination of the (i) rights of Indemnitee to
indemnification and payment of losses and expenses under this Agreement or under
the provisions of the Articles, Bylaws, and the DGCL, (ii) standard of conduct
and (iii) evaluation of the reasonableness of amounts claimed by Indemnitee
shall be made in accordance with Section 5(a) or in such other manner as may be
required by the DGCL or other applicable law. If there has been a Change in
Control after the date hereof, such determination and evaluation shall be made
by a special, independent counsel (which may be the outside counsel regularly
employed by the Company) who is selected by Indemnitee and approved by the
Company, which approval shall not be unreasonably withheld.
7. LIMITATION OF ACTIONS; RELEASE OF CLAIMS. No Action shall be brought
and no cause of Action shall be asserted by or on behalf of the Company, or any
of its Affiliates,
against Indemnitee, his spouse, heirs, executors, or administrators after the
expiration of two years from the date Indemnitee ceases (for any reason) to
serve in any one or more of the capacities covered by this Agreement, and any
claim or cause of Action of the Company, or any of its Affiliates, shall be
extinguished and deemed released unless asserted by filing of a legal Action
within such two year period.
8. 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 Indemnitee, who shall execute all documents, instruments and
papers and take all actions reasonably requested by the Company to implement
such subrogation rights.
9. LIMITATION OF INDEMNIFICATION RIGHTS. The Company shall not be liable
under this Agreement to make any payment in connection with any claim made
against Indemnitee:
(a) for which payment is actually made to Indemnitee under a
valid and collectible insurance policy, except in respect of any excess
beyond the amount of payment under such insurance;
(b) for which Indemnitee has already been indemnified by the
Company or any of its Affiliates or any other Enterprise of which
Indemnitee serves as Agent by request of the Company, otherwise than
pursuant to this Agreement;
(c) for an accounting of profits made from the purchase or sale
by Indemnitee of securities of the Company within the meaning of Section
16(b) of the Securities Exchange Act of 1934, as amended, or similar
provisions of any state statutory law or common law;
(d) brought about or contributed to by the knowingly fraudulent,
deliberate, dishonest or willful misconduct of Indemnitee; or
(e) for which indemnification under this Agreement is determined
by a final adjudication of a court of competent jurisdiction to be
unlawful and violative of public policy.
10. PARTICIPATION BY THE COMPANY. With respect to any such Action as to
which Indemnitee notifies the Company of the commencement thereof:
(a) Company will be entitled to participate therein at its own
expense;
(b) Except as otherwise provided below, to the extent that it may
wish, the Company (jointly with any other indemnifying party similarly
notified) will be entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. After receipt of notice from the Company to
Indemnitee of the Company's election so to assume the defense thereof,
the Company will not be liable to Indemnitee under this Agreement for
any legal or other expenses subsequently incurred by Indemnitee in
connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. Indemnitee shall have the
right to employ his own counsel in such Action 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 Indemnitee
unless: (i) the employment of counsel by Indemnitee has been authorized
by the Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee
in the conduct of the defense of such Action, or (iii) the Company shall
not in fact have employed counsel to assume the defense of such Action,
in each of which cases the fees and expenses of counsel employed by
Indemnitee shall be subject to indemnification pursuant to this
Agreement. The Company shall not be entitled to assume the defense of
any Action brought in the name of or on behalf of the Company or as to
which Indemnitee shall have made the conclusion provided for in (ii)
above; and
(c) The Company shall not be liable to indemnify Indemnitee under
this Agreement for any amounts paid in settlement of any Action effected
without its written consent, which consent shall not be unreasonably
withheld. The Company shall not settle any Action in any manner which
would impose any penalty or limitation on Indemnitee without
Indemnitee's written consent, which consent shall not be unreasonably
withheld.
11. ADVANCES
(a) ADVANCES. Upon any threatened or pending Action in which
Indemnitee is a party or is involved and which may give rise to a right
of indemnification under this Agreement, following written request to
the Company by Indemnitee, the Company shall promptly pay to Indemnitee
amounts to cover expenses reasonably incurred (or to be reasonably
incurred) by Indemnitee in such proceeding in advance of its final
disposition upon the receipt by the Company of (i) a written undertaking
executed by or on behalf of Indemnitee to repay the advance if it shall
ultimately be determined that Indemnitee is not entitled to be
indemnified by the Company as provided in this Agreement and (ii)
satisfactory evidence as to the amount of such expenses.
(b) REPAYMENT OF ADVANCES OR OTHER EXPENSES. Indemnitee agrees
that Indemnitee shall reimburse the Company for all expenses paid by the
Company in defending any Action against Indemnitee upon and only to the
extent that it shall be determined pursuant to this Agreement or by
final judgment or other final adjudication under the provisions of the
DGCL or any applicable law that Indemnitee is not entitled to be
indemnified by the Company for such expenses.
12. OTHER RIGHTS AND REMEDIES. Any indemnification or advance payment of
expenses made pursuant to any provision in this Agreement shall be in addition
to any other rights to which Indemnitee may be entitled in any capacity under
any provision of law, the Bylaws and Articles, any governing instrument of any
Affiliate, this or any other agreement, or pursuant to any vote of the governing
body of any Affiliate or of disinterested members of the Board.
13. INSURANCE
(a) NO OBLIGATION TO MAINTAIN INSURANCE. The Company shall not
under any circumstances be obligated to maintain an insurance policy or
insurance policies providing officers' and directors' insurance
(INSURANCE).
(b) INSURANCE COVERAGE. If the Company maintains Insurance,
Indemnitee shall be covered by such Insurance in accordance with its
terms to the maximum extent of coverage applicable to any director or
officer then serving the Company.
14. DURATION. All agreements and obligations of the Company contained
herein shall continue during the period Indemnitee is an Agent of the Company or
any of its Affiliates or serves as an Agent at the request of the Company for
any other Enterprise and shall continue thereafter so long as Indemnitee shall
be subject to any possible Action because Indemnitee was an Agent of the Company
or any of its Affiliates or serving in any other capacity referred to herein.
15. NOTICE. Promptly after receipt by Indemnitee of notice of the
commencement of any Action, Indemnitee shall, if he anticipates or contemplates
making a claim for expenses or an advance pursuant to this Agreement, notify the
Company of the commencement of such Action; PROVIDED, HOWEVER, that any delay in
so notifying the Company shall not constitute a waiver or release by Indemnitee
of rights hereunder and that any omission by Indemnitee to so notify the Company
shall not relieve the Company from any liability which it may have to Indemnitee
hereunder or otherwise than under this Agreement.
16. INTENT OF PARTIES. The Company expressly confirms and agrees that it
has entered into this Agreement and assumed the obligations imposed on the
Company hereby to induce Indemnitee to serve as an officer and/or director of
the Company and acknowledges that Indemnitee is relying upon this Agreement in
agreeing to serve in such capacity.
17. EFFECTIVENESS OF AGREEMENT. This Agreement is effective for, and
shall apply to, (i) any claim which is asserted or threatened before, on or
after the date of this Agreement but for which no Action has been brought prior
to the date hereof and (ii) any Action which is threatened before, on or after
the date of this Agreement but which is not pending prior to the date hereof.
This Agreement shall not apply to any Action which was brought before the date
of this Agreement. So long as the foregoing is satisfied, this Agreement shall
be effective for, and be applicable to, acts or omissions occurring to, on or
after the date hereof.
18. MISCELLANEOUS
(a) SEVERABILITY. If any provision of this Agreement shall be
held to be unenforceable under any applicable law, then such
unenforceability shall not invalidate the entire Agreement. Such
provision shall be deemed to be modified to the extent necessary to
render it enforceable, and if no such modification shall render it
enforceable, then this Agreement shall be construed as if not containing
the provisions held to be unenforceable, and the rights and obligations
of the parties shall be construed and enforced accordingly.
(b) ENTIRE AGREEMENT. This Agreement, those documents expressly
referred to herein and any other documents of even date herewith embody
the complete agreement and understanding between the parties hereto and
supersede and pre-empt any prior understandings, agreements or
representations between the parties, written, oral or otherwise, which
may have related to the subject matter hereof in any way.
(c) IDENTICAL COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to
be an original and all of which together shall constitute one and the
same instrument.
(d) HEADINGS. The headings used in this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
(e) USE OF CERTAIN TERMS. As used in this Agreement, the words
"herein," "hereof," and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular paragraph,
subparagraph, section, subsection, or other subdivision. Whenever the
context may require, any pronoun used in this Agreement shall include
the corresponding masculine, feminine or neuter forms, and the singular
form of nouns, pronouns and verbs shall include the plural and VICE
VERSA.
(f) MODIFICATION; WAIVER; TERMINATION. No supplement,
modification, or amendment, or termination of this Agreement shall be
effective unless executed in writing by both of the parties hereto. 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.
(g) NOTICES. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand (return receipt requested) or sent
by overnight delivery service, cable, telegram, or facsimile
transmission to the parties at the following addresses or at such other
addresses as shall be specified by the parties by like notice:
(i) if to Indemnitee, to the address on the signature
page hereof; and
(ii) if to the Company, to:
CRC Holdings Corp.
00000 X. Xxxxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attention: President
Notice so given shall, in the case of notice so given by mail, be
deemed to be given and received on the fourth calendar day after
posting, in the case of notice so given by overnight delivery service,
on the date of actual delivery and, in the case of notice so given by
cable, telegram, facsimile transmission or, as the case may be, personal
delivery.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF DELAWARE, EXCLUDING CONFLICT OF LAWS PRINCIPLES.
(i) SURVIVAL; CONTINUATION. The rights of Indemnitee under this
Agreement shall inure to the benefit of Indemnitee, his heirs,
executors, administrators, personal representatives and assigns, and
this Agreement shall be binding upon the Company, its
successors and assigns. If the Company, in a single transaction or
series of related transactions, sells, leases, exchanges, or otherwise
disposes of all or substantially all of its property and assets, the
Company shall, as a condition precedent to any such transaction, cause
effective provision to be made so that the Persons acquiring such
property and assets shall become bound by and replace the Company under
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first above written.
CRC-XXXXX INTERNATIONAL, INC.
By:__________________________
INDEMNITEE
By:__________________________
Address:
