EXHIBIT 10.3
FORM OF INDEMNITY AGREEMENT DATED NOVEMBER 14, 2002 BETWEEN THE REGISTRANT AND
EACH OF DR. XXXXXXX XXXXX, XXXXXXXX XXXXXXXXX, XXXX X. XXXXX, XXXXX X. XXXXXX,
XXXXXX X. XXXXXX, XXXXXXX X. XXXXXXXX, XXXX X. XXXXXX, XXXXXX X. XXXXXXXX,
XXXXXX X. XXXXXXXX AND XXXXX X. XXXXX.
This Agreement, dated as of November _____, 2002, is by and between
XXXXXXXX'X NURSERY, INC., a Texas corporation (the "Company") and __________(the
"Indemnitee").
WHEREAS, the Company and Indemnitee recognize the difficulty and
expense of obtaining directors' and officers' liability insurance that fully and
adequately protects directors and officers for acts and omissions on behalf of
the Company and its subsidiaries; and
WHEREAS, the Company and Indemnitee further recognize the significant
increase in corporate litigation in general, subjecting officers and directors
to expensive litigation costs and risks at the same time as the availability and
coverage of liability insurance has been severely limited; and
WHEREAS, Indemnitee and the Company do not regard the current
protection available as adequate under the present circumstances and Indemnitee
and other officers and directors of the Company may not be willing to continue
to serve as such without additional protection; and
WHEREAS, the Company desires to retain the services of highly qualified
individuals, such as Indemnitee, to serve as officers and directors of the
Company and to have policies which will attract persons of similar talent to
serve the Company as officers and directors in the future; and
WHEREAS, the Company desires to indemnify its officers and directors so
as to provide them with the maximum protection permitted by law;
NOW, THEREFORE, in consideration of the Indemnitee's agreement to
continue to serve in his capacity as an officer or director, or both, of the
Company, it is agreed as follows:
1. Indemnification of Indemnitee. The Company shall indemnify
Indemnitee in his capacity as an officer, director, or officer and director of
the Company and, if serving at the request of the Company as a director,
officer, trustee, employee, agent or similar functionary of another foreign or
domestic corporation, trust, partnership, joint venture, sole proprietorship,
employee benefit plan or other enterprise, in each of those capacities, against
any and all liability and reasonable expense that may be incurred by Indemnitee
in connection with or resulting from (a) any Proceeding, (b) an appeal in any
Proceeding, or (c) any inquiry or investigation that could lead to any
Proceeding, all to the fullest extent permitted by Article 2.02-1 of the Texas
Business Corporation Act, as the same exists as of the date of this
Indemnification Agreement (the "Agreement") or as it may hereafter be amended to
broaden the indemnification which the Company may grant to its officers and
directors.
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2. Continuation of Indemnity. All agreements and obligations of the
Company contained herein shall continue during the period Indemnitee is an
officer, director, or officer and director of the Company and shall continue
thereafter so long as Indemnitee shall be subject to any possible claim or
threatened, pending or completed Proceeding, any appeal in any Proceeding and
any inquiry or investigation that could lead to any Proceeding, by reason of the
fact that Indemnitee was serving in any capacity referred to herein.
3. Notification and Defense of Claim. Promptly after receipt by
Indemnitee of notice of any claim against Indemnitee or the commencement of any
Proceeding, Indemnitee will, if a claim in respect thereof is to be made against
the Company under this Agreement, notify the Company of the assertion of any
such claim or the commencement thereof; but the omission so to notify the
Company will not relieve it from any liability under this Agreement unless such
delay in notification actually prejudiced the Company (and then only to the
extent the Company was actually prejudiced thereby) and, in addition, the
Company shall not be relieved from any liability which it may have to Indemnitee
otherwise than under this Agreement. With respect to any Proceeding as to which
Indemnitee notifies the Company of the commencement thereof:
(a) The 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 reasonably satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its 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 Proceeding, 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 in writing 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 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 by or on
behalf of the Company or as to which Indemnitee shall have made the conclusion
provided for in clause (ii) above.
(c) The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. The Company shall not settle any action or claim in
any manner which would impose any penalty or limitation on Indemnitee without
Indemnitee's written consent. Neither the Company nor Indemnitee will
unreasonably withhold their consent to any proposed settlement.
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4. Advances of Expenses. Reasonable expenses (other than judgments,
penalties, fines and settlements) incurred by Indemnitee that are subject to
indemnification under this Agreement (and not paid, reimbursed or advanced by
others) shall be paid or reimbursed by the Company in advance of the final
disposition of the Proceeding within 10 days after the Company receives a
written request by Indemnitee accompanied by substantiating documentation of
such expenses, a written affirmation by Indemnitee of his good faith belief that
he has met the standard of conduct necessary for indemnification under this
Agreement and a written undertaking by or on behalf of Indemnitee to repay the
amount paid or reimbursed if it is ultimately determined that he has not met
that standard or that such reasonable expenses do not constitute a Loss. The
written undertaking described above must be an unlimited general obligation of
Indemnitee but shall not be secured. Such undertaking shall be without reference
to the financial ability of Indemnitee to make repayment. The provisions of this
paragraph are intended to and shall constitute "an agreement that makes
mandatory the payment or reimbursement permitted under" Article 2.02-1.K of the
Texas Business Corporation Act, as amended (the "TBCA") and, therefore, shall be
deemed to constitute authorization of payment or reimbursement of expenses as
provided in that article, as well as under this Agreement.
5. Right of Indemnitee to Indemnification Upon Application; Procedure
Upon Application. Upon the written request of Indemnitee to be indemnified
pursuant to this Agreement (other than pursuant to Section 4 hereof), the
Company shall cause the Reviewing Party (as hereinafter defined) to determine,
within 45 days, whether or not Indemnitee has met the relevant standards for
indemnification required by this Agreement. The termination of a Proceeding by
judgment, order, settlement or conviction, or on a plea of nolo contendere or
its equivalent, shall not of itself be determinative that Indemnitee did not
meet the requirements for indemnification under this Agreement. If a
determination of indemnification is to be made by Independent Legal Counsel (as
hereinafter defined), such Independent Legal Counsel shall render its written
opinion to the Company and Indemnitee as to what extent Indemnitee will be
permitted to be indemnified. The Company shall pay the reasonable fees of
Independent Legal Counsel and indemnify and hold harmless Indemnitee against any
and all expenses (including attorneys' fees), claims, liabilities and damages
arising out of or relating to the engagement of Independent Legal Counsel
pursuant hereto.
6. Definitions. The terms defined in this Section 6 shall, for purposes
of this Agreement, have the indicated meanings:
(a) "Reviewing Party" means (i) a majority of a quorum of directors of
the Company who at the time of voting upon a determination of indemnification
are not named defendants or respondents in that particular Proceeding as to
which Indemnitee is seeking indemnification, (ii) if such a quorum cannot be
obtained, by a majority vote of a committee of the Board of Directors of the
Company, designated to act as the Reviewing Party by a majority vote of all
directors of the Company, consisting solely of two or more directors who at the
time of such selection are not parties in that particular Proceeding to which
Indemnitee is seeking indemnification, (iii) Independent Legal Counsel selected
by persons determined in accordance with clause (i) or (ii) above, or if such a
quorum cannot be obtained and such a committee cannot be established, by a
majority vote of all directors of the Company, or (iv) the shareholders of the
Company in a vote that excludes shares held by directors who are named
defendants or respondents in that particular Proceeding.
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(b) "Independent Legal Counsel" shall mean an attorney, selected in
accordance with the provisions of Section 6(a) hereof, who shall not have
otherwise performed services for Indemnitee, the Company, any person that
controls the Company or any of the directors of the Company, within five years
preceding the time of such selection. Independent Legal Counsel shall not be any
person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the Company
or Indemnitee in an action to determine Indemnitee's rights under this
Agreement, nor shall Independent Legal Counsel be any person who has been
sanctioned or censured for ethical violations of applicable standards of
professional conduct.
(c) "Loss" shall mean any and all judgments, penalties (including
excise and similar taxes), fines, settlements and reasonable expenses (including
attorneys' fees) actually incurred by Indemnitee, after realization of or giving
effect to all insurance, bonding, indemnification and other payments or
recoveries (i) actually received by or for the benefit of Indemnitee, directly
or indirectly, or (ii) to which Indemnitee is entitled, directly or indirectly.
(d) "Proceeding" shall mean any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative, arbitrative
or investigative, any appeal in such action, suit or proceeding and any inquiry
or investigation that could lead to such an action, suit or proceeding.
7. Enforceability. The right to indemnification or advances as provided
by this Agreement shall be enforceable by Indemnitee in any court of competent
jurisdiction. The burden of proving that indemnification is not appropriate
shall be on the Company. Neither the failure of the Company (including its Board
of Directors or Independent Legal Counsel) to have made a determination prior to
the commencement of an action that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of conduct, nor
an actual determination by the Company (including its Board of Directors or
Independent Legal Counsel) that Indemnitee has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that
Indemnitee has not met the applicable standard of conduct.
8. Partial Indemnity; Expenses. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for a portion of
the expenses, judgments, fines and penalties, but not for the total amount
thereof, the Company shall indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Notwithstanding any other provision of this Agreement,
to the extent that Indemnitee has been successful on the merits or otherwise in
defense of any or all Proceedings relating in whole or in part to an event
subject to indemnification hereunder or in defense of any issue or matter
therein, including dismissal without prejudice, Indemnitee shall be indemnified
against expenses incurred or any Loss in connection with such Proceeding, issue
or matter, as the case may be.
9. Repayment of Expenses. Indemnitee shall reimburse the Company for
all reasonable expenses paid by the Company in defending any Proceeding against
Indemnitee in the event and only to the extent that it shall be ultimately
determined that Indemnitee is not entitled to be indemnified by the Company for
such expenses under the provisions of this Agreement.
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10. Consideration. The Company expressly confirms and agrees that it
has entered into this Agreement and assumed the obligations imposed on the
Company hereby in order to induce Indemnitee to serve and continue serving as an
officer, director, or officer and director of the Company, and acknowledges that
Indemnitee is relying upon this Agreement in serving in such capacity or
capacities.
11. Indemnification Hereunder Not Exclusive. The indemnification and
advancement of expenses provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may be entitled under any other
agreement, vote of shareholders, as a matter of law or otherwise, but the
indemnification provided for pursuant to the Articles of Incorporation or Bylaws
of the Company is limited to any Loss.
12. Subrogation. If a payment is made 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 papers required and shall do
everything that may be necessary to secure such rights.
13. Severability. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any
provision thereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereto.
14. Notice. Any notice, consent or other communication to be given
under this Agreement by any party to any other party shall be in writing and
shall be either (a) personally delivered, (b) mailed by registered or certified
mail, postage prepaid with return receipt requested, (c) delivered by overnight
express delivery service or same-day local courier service, or (d) delivered by
facsimile transmission to the address set forth beneath the signature of the
parties below, or at such other address as may be designated by the parties from
time to time in accordance with this Section. Notices delivered personally, by
overnight express delivery service or by local courier service shall be deemed
given as of actual receipt. Mailed notices shall be deemed given three business
days after mailing. Notices delivered by facsimile transmission shall be deemed
given upon receipt by the sender of transmission confirmation.
15. Governing Law; Binding Effect; Amendment and Termination;
Reimbursement.
(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Texas.
(b) This Agreement shall be binding upon Indemnitee and his heirs,
executors, administrators, personal representatives and assigns and upon the
Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and his heirs, executors, administrators, personal representatives
and assigns and to the benefit of the Company and its successors and assigns.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto.
(d) If Indemnitee is required to bring any action to enforce rights or
to collect moneys due under this Agreement and is successful in such action, the
Company shall reimburse Indemnitee for all of Indemnitee's reasonable fees and
expenses in bringing and pursuing such action.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXXXXXX'X NURSERY, INC.
By
-----------------------------------------
Printed Name:
Its:
Xxxxxxxx'x Nursery, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
INDEMNITEE
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Printed Name:
Xxxxxxxx'x Nursery, Inc.
0000 Xxxxxxx Xxxxxxx Xxx. 000
Xxxx Xxxxx, Xxxxx 00000
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