EXHIBIT 4.2
DIRECTOR INDEMNIFICATION AGREEMENT
This Director Indemnification Agreement (the "Agreement") is made and
entered into this 7th day of November, 2005, by and between VELOCITY ASSET
MANAGEMENT, INC., a Delaware corporation (the "Company," which term shall
include, where appropriate, any Entity (as hereinafter defined) controlled
directly or indirectly by the Company and any successor to the Company), and
Xxxxxx X. Xxxxxx ("Indemnitee").
WHEREAS, it is essential to the Company that it be able to retain and
attract as directors the most capable persons available;
WHEREAS, increased corporate litigation has subjected directors to
litigation risks and expenses, and the limitations on the availability of
directors and officers liability insurance have made it increasingly difficult
for the Company to attract and retain such persons;
WHEREAS, the Company's Certificate of Incorporation (as amended from
time to time, the "Charter") and/or bylaws (as in effect from time to time, the
"Bylaws", together with the Charter, the "Organization Documents") provide for
the indemnification of its directors and permits it to make other
indemnification arrangements and agreements;
WHEREAS, the Company desires to provide Indemnitee with specific
contractual assurance of Indemnitee's rights to indemnification to the fullest
extent permitted by Delaware law against litigation risks and expenses
(regardless, among other things, of any change in the ownership of the Company
or the composition of its Board of Directors); and
WHEREAS, Indemnitee is relying upon the rights afforded under this
Agreement in accepting Indemnitee's position as a director of the Company:
NOW, THEREFORE, in consideration of the promises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions.
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(a) "Corporate Status" describes the status of a person
who is serving or has served (i) as a director of the Company, (ii) in any
capacity with respect to any employee benefit plan of the Company, or (iii) as a
director, partner, trustee, officer, employee, or agent of any other Entity at
the request of the Company. For purposes of subsection (iii) of this Section
1(a), a director of the Company who is serving or has served as a director,
partner, trustee, officer, employee or agent of a Subsidiary shall be deemed to
be serving at the request of the Company.
(b) "Entity" shall mean any corporation, partnership,
limited liability company, joint venture, trust, foundation, association,
organization or other legal entity.
(c) "Expenses" shall mean all reasonable fees, costs and
expenses actually and reasonably incurred in connection with any Proceeding (as
defined below), including, without limitation, reasonable attorneys' fees,
disbursements and retainers (including, without limitation, any such fees,
disbursements and retainers incurred by Indemnitee pursuant to Sections 9 and
11(c) of this Agreement), fees and disbursements of expert witnesses, private
investigators and professional advisors (including, without limitation,
accountants and investment bankers), court costs, transcript costs, fees of
experts, travel expenses, duplicating, printing and binding costs, telephone and
fax transmission charges, postage, delivery services, secretarial services, and
other reasonable disbursements and expenses.
(d) "Liabilities" shall mean judgments, damages,
liabilities, losses, penalties, excise taxes, fines and amounts paid in
settlement.
(e) "Proceeding" shall mean any threatened, pending or
completed claim, action, suit, arbitration, alternate dispute resolution
process, investigation, administrative hearing, appeal, or any other proceeding,
whether civil, criminal, administrative, arbitrative or investigative, whether
formal or informal, including a proceeding initiated by Indemnitee pursuant to
Section 11 of this Agreement to enforce Indemnitee's rights hereunder.
(f) "Subsidiary" shall mean any corporation, partnership,
limited liability company, joint venture, trust or other Entity of which the
Company owns (either directly or through or together with another Subsidiary of
the Company) either (i) a general partner, managing member or other similar
interest or (ii) (A) more than 50% of the voting power of the voting capital
equity interests of such corporation, partnership, limited liability company,
joint venture or other Entity, or (B) more than 50% of the outstanding voting
capital stock or other voting equity interests of such corporation, partnership,
limited liability company, joint venture or other Entity.
2. Services of Indemnitee. In consideration of the Company's
covenants and commitments hereunder, Indemnitee agrees to serve or continue to
serve as a director of the Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue Indemnitee's service to the
Company beyond any period otherwise required by law or by other agreements or
commitments of the parties, if any.
3. Agreement to Indemnify. The Company agrees to indemnify
Indemnitee as follows:
(a) Subject to the exceptions contained in Section 4(a)
below, if Indemnitee was or is a party or is threatened to be made a party to
any Proceeding (other than an action by or in the right of the Company) by
reason of Indemnitee's Corporate Status, Indemnitee shall, to the extent
permitted by applicable law, be indemnified by the Company against all Expenses
and Liabilities incurred or paid by Indemnitee in connection with such
Proceeding (referred to herein as "Indemnifiable Expenses" and "Indemnifiable
Liabilities," respectively, and collectively as "Indemnifiable Amounts").
(b) To the extent permitted by applicable law and subject
to the exceptions contained in Section 4(b) below, if Indemnitee was or is a
party or is threatened to be made a party to any Proceeding by or in the right
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of the Company to procure a judgment in its favor by reason of Indemnitee's
Corporate Status, Indemnitee shall be indemnified by the Company against all
Indemnifiable Expenses.
4. Exceptions to Indemnification. Indemnitee shall be entitled to
the indemnification provided in Sections 3(a) and 3(b) above in all
circumstances other than the following:
(a) If indemnification is requested under Section 3(a)
and it has been adjudicated finally by a court of competent jurisdiction that,
in connection with the subject of the Proceeding out of which the claim for
indemnification has arisen, Indemnitee failed to act in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, or with respect to any criminal action or proceeding,
Indemnitee had reasonable cause to believe that Indemnitee's conduct was
unlawful, Indemnitee shall not be entitled to payment of Indemnifiable Amounts
hereunder.
(b) If indemnification is requested under Section 3(b)
and:
(i) it has been adjudicated finally by a court
of competent jurisdiction that, in connection with the subject of the
Proceeding out of which the claim for indemnification has arisen,
Indemnitee failed to act in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of
the Company, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder; or
(ii) it has been adjudicated finally by a court
of competent jurisdiction that Indemnitee is liable to the Company with
respect to any claim, issue or matter involved in the Proceeding out of
which the claim for indemnification has arisen, including, without
limitation, a claim that Indemnitee received an improper personal
benefit, no Indemnifiable Expenses shall be paid with respect to such
claim, issue or matter unless the court in which such Proceeding was
brought shall determine upon application that, despite the adjudication
of liability, but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such
Indemnifiable Expenses which such court shall deem proper.
5. Procedure for Payment of Indemnifiable Amounts. Indemnitee
shall submit to the Company a written request specifying the Indemnifiable
Amounts for which Indemnitee seeks payment under Section 3 of this Agreement and
the basis for the claim. The Company shall pay such Indemnifiable Amounts to
Indemnitee within thirty (30) calendar days (or earlier if reasonably requested
by Indemnitee) of receipt of the request. At the request of the Company,
Indemnitee shall furnish such documentation and information as are reasonably
available to Indemnitee and necessary to establish that Indemnitee is entitled
to indemnification hereunder.
6. Indemnification for Expenses of a Witness. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is, by reason
of his Corporate Status, a witness in any Proceeding to which Indemnitee is not
a party, the Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection therewith
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7. Indemnification for Expenses of a Party Who is Wholly or
Partly Successful. Notwithstanding any other provision of this Agreement, and
without limiting any such provision, to the extent that Indemnitee is, by reason
of Indemnitee's Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified against all
Expenses reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Agreement, and, without limiting the generality
of the foregoing, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
8. Effect of Certain Resolutions. Neither the settlement or
termination of any Proceeding nor the failure of the Company to award
indemnification or to determine that indemnification is payable shall create an
adverse presumption that Indemnitee is not entitled to indemnification
hereunder. In addition, the termination of any Proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
shall not create a presumption that Indemnitee did not act in good faith and in
a manner which Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company or, with respect to any criminal action or
proceeding, had reasonable cause to believe that Indemnitee's action was
unlawful.
9. Agreement to Advance Expenses; Conditions. The Company shall
pay to Indemnitee all Indemnifiable Expenses incurred by Indemnitee in
connection with any Proceeding, including a Proceeding by or in the right of the
Company, in advance of the final disposition of such Proceeding, if Indemnitee
furnishes the Company with a written undertaking to repay the amount of such
Indemnifiable Expenses advanced to Indemnitee if it is finally determined by a
court of competent jurisdiction that Indemnitee is not entitled under this
Agreement or under Delaware law to indemnification with respect to such
Expenses. This undertaking is an unlimited general obligation of Indemnitee,
shall be accepted by the Company without regard to the financial ability of
Indemnitee to make repayment, and in no event shall be required to be secured.
10. Procedure for Advance Payment of Expenses. Indemnitee shall
submit to the Company a written request specifying the Indemnifiable Expenses
for which Indemnitee seeks an advancement under Section 9 of this Agreement,
together with documentation evidencing that Indemnitee has incurred such
Indemnifiable Expenses. Payment of Indemnifiable Expenses under Section 8 shall
be made no later than thirty (30) calendar days after the Company's receipt of
such request, subject to receipt of Indemnitee's undertaking as aforesaid.
11. Remedies of Indemnitee.
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(a) Right to Petition Court. In the event that Indemnitee
makes a request for payment of Indemnifiable Amounts under Sections 3 and 5
above or a request for an advancement of Indemnifiable Expenses under Sections 9
and 10 above and the Company fails to make such payment or advancement in a
timely manner pursuant to the terms of this Agreement, Indemnitee may petition
any court which has jurisdiction to enforce the Company's obligations under this
Agreement.
(b) Burden of Proof. In any judicial proceeding brought
under Section 11(a) above, the Company shall have the burden of proving that
Indemnitee is not entitled to payment of Indemnifiable Amounts hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee
in full for any Expenses incurred by Indemnitee in connection with
investigating, preparing for, litigating, defending or settling any action
brought by Indemnitee under Section 11(a) above, except where such action or any
claim or counterclaim brought by the Company in connection therewith is resolved
in favor of the Company.
(d) Validity of Agreement. The Company shall be precluded
from asserting in any Proceeding, including, without limitation, an action under
Section 11(a) above, that the provisions of this Agreement are not valid,
binding and enforceable or that there is insufficient consideration for this
Agreement and shall stipulate in court that the Company is bound by all the
provisions of this Agreement.
(e) Defense to Action. It shall be a defense to any such
action (other than an action brought to enforce a claim for expense incurred in
defending any actual or threatened proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered by the Company) that the Indemnitee has not met the standard of conduct
which make it permissible under Delaware law for the Company to indemnify the
Indemnitee for the amount claimed, but the burden of proving the defense shall
be on the Company.
(f) Failure to Act Not a Defense. The failure of the
Company (including its Board of Directors or any committee thereof, independent
legal counsel, or stockholders) to make a determination concerning the
permissibility of the payment of Indemnifiable Amounts or the advancement of
Indemnifiable Expenses under this Agreement shall not be a defense in any action
brought under Section 11(a) above, and shall not create a presumption that such
payment or advancement is not permissible.
12. Defense of the Underlying Proceeding.
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(a) Notice by Indemnitee. Indemnitee agrees to notify the
Company promptly upon being served with any summons, citation, subpoena,
complaint, indictment, information, or other document relating to any Proceeding
which may result in the payment of Indemnifiable Amounts or the advancement of
Indemnifiable Expenses hereunder; provided, however, that the failure to give
any such notice shall not disqualify Indemnitee from the right, or otherwise
affect in any manner any right of Indemnitee, to receive payments of
Indemnifiable Amounts or advancements of Indemnifiable Expenses except to the
extent the Company's ability to defend in such Proceeding is prejudiced thereby.
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(b) Defense by Company. Subject to the provisions of the
last sentence of this Section 12(b) and of Section 12(c) below, the Company
shall have the right to defend Indemnitee in any Proceeding which may give rise
to the payment of Indemnifiable Amounts hereunder; provided, however that the
Company shall notify Indemnitee of any such decision to defend within ten (10)
calendar days of receipt of notice of any such Proceeding under Section 12(a)
above. The Company shall not, without the prior written consent of Indemnitee,
consent to the entry of any judgment against Indemnitee or enter into any
settlement or compromise which (i) includes an admission of fault of Indemnitee,
or (ii) does not include, as an unconditional term thereof, the full release of
Indemnitee from all liability in respect of such Proceeding, which release shall
be in form and substance reasonably satisfactory to Indemnitee. Indemnitee shall
not, without the prior written consent of the Company, consent to the entry of
any judgment against Indemnitee or enter into any settlement or compromise with
respect to which the Company has indemnification obligations to Indemnitee. This
Section 12(b) shall not apply to a Proceeding brought by Indemnitee under
Section 11(a) above or pursuant to Section 20 below.
(c) Indemnitee's Right to Counsel. Notwithstanding the
provisions of Section 12(b) above, (i) if in a Proceeding to which Indemnitee is
a party by reason of Indemnitee's Corporate Status, (A) Indemnitee reasonably
concludes that he or she may have separate defenses or counterclaims to assert
with respect to any issue which are inconsistent with the position of other
defendants in such Proceeding, or (B) a conflict of interest or potential
conflict of interest exists between Indemnitee and the Company, or (ii) if the
Company fails to assume the defense of such proceeding in a timely manner,
Indemnitee shall be entitled to be represented by separate legal counsel, which
shall represent other persons' similarly situated, of Indemnitee's and such
other persons' choice and reasonably acceptable to the Company at the expense of
the Company. In addition, if the Company fails to comply with any of its
obligations under this Agreement or in the event that the Company or any other
person takes any action to declare this Agreement void or unenforceable, or
institutes any action, suit or proceeding to deny or to recover from Indemnitee
the benefits intended to be provided to Indemnitee hereunder, except with
respect to such actions suits or proceedings brought by the Company that are
resolved in favor of the Company, Indemnitee shall have the right to retain
counsel of Indemnitee's choice, at the expense of the Company, to represent
Indemnitee in connection with any such matter.
13. Representations and Warranties of the Company. The Company
hereby represents and warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary power and
authority to enter into, and be bound by the terms of, this Agreement, and the
execution, delivery and performance of the undertakings contemplated by this
Agreement have been duly authorized by the Company.
(b) Enforceability. This Agreement, when executed and
delivered by the Company in accordance with the provisions hereof, shall be a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws affecting the enforcement of creditors' rights generally or
equitable principles.
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14. Fees and Expenses. During the term of the Indemnitee's service
as a director, the Company shall promptly reimburse the Indemnitee for all
reasonable out-of-pocket expenses incurred by him in connection with his service
as a director or member of any board committee.
15. Contract Rights Not Exclusive. The rights to payment of
Indemnifiable Amounts and advancement of Indemnifiable Expenses provided by this
Agreement shall be in addition to, but not exclusive of, any other rights which
Indemnitee may have at any time under applicable law, the Organization
Documents, or any other agreement, vote of stockholders or directors (or a
committee of directors), or otherwise, both as to action in Indemnitee's
official capacity and as to action in any other capacity as a result of
Indemnitee's serving as a director of the Company.
16. Successors. This Agreement shall be (a) binding upon all
successors and assigns of the Company (including any transferee of all or a
substantial portion of the business, stock and/or assets of the Company and any
direct or indirect successor by merger or consolidation or otherwise by
operation of law), and (b) binding on and shall inure to the benefit of the
heirs, personal representatives, executors and administrators of Indemnitee.
This Agreement shall continue for the benefit of Indemnitee and such heirs,
personal representatives, executors and administrators after Indemnitee has
ceased to have Corporate Status.
17. Subrogation. In the event of any payment of Indemnifiable
Amounts under this Agreement, the Company shall be subrogated to the extent of
such payment to all of the rights of contribution or recovery of Indemnitee
against other persons, and Indemnitee shall take, at the request of the Company,
all reasonable action necessary to secure such rights, including the execution
of such documents as are necessary to enable the Company to bring suit to
enforce such rights.
18. Governing Law; Change in Law. This Agreement shall be governed
by and construed and enforced under the laws of the State of Delaware, without
giving effect to the provisions thereof relating to conflicts of law (the
"Governing Law"). To the extent that a change in the Governing Law (whether by
statute or judicial decision) shall permit broader indemnification or
advancement of expenses than is provided under the terms of the Organization
Documents and this Agreement, Indemnitee shall be entitled to such broader
indemnification and advancements, and this Agreement shall be deemed to be
amended to such extent.
19. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement, or any clause
thereof, shall be determined by a court of competent jurisdiction to be illegal,
invalid or unenforceable, in whole or in part, such provision or clause shall be
limited or modified in its application to the minimum extent necessary to make
such provision or clause valid, legal and enforceable, and the remaining
provisions and clauses of this Agreement shall remain fully enforceable and
binding on the parties.
20. Indemnitee as Plaintiff. Except as provided in Section 11 of
this Agreement and in the next sentence, Indemnitee shall not be entitled to
payment of Indemnifiable Amounts or advancement of Indemnifiable Expenses with
respect to any Proceeding brought by Indemnitee against the Company, any Entity
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which it controls, or any director or officer thereof, unless the Company has
consented to the initiation of such Proceeding. This Section shall not apply to
affirmative defenses asserted by Indemnitee or any counterclaims by Indemnitee
which are resolved successfully (from the Company's point of view) in an action
brought against Indemnitee.
21. Modifications and Waiver. Except as provided in Section 18
above with respect to changes in the Governing Law which broaden the right of
Indemnitee to be indemnified by the Company, no supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by each
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 of this
Agreement (whether or not similar), nor shall such waiver constitute a
continuing waiver.
22. General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed to such address as may have been furnished by any party to the others.
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IN WITNESS WHEREOF, the parties hereto have executed this Director
Indemnification Agreement as of the day and year first above written.
VELOCITY ASSET MANAGEMENT, INC.
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx Xxxxxxxx
Title: CEO and President
INDEMNITEE:
/s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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