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EXHIBIT 6
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INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is made and entered into on September 28,
1997, by and between GRAPHIC INDUSTRIES, INC., a Georgia corporation (the
"Corporation"), and ________________________, an officer, member of the Board
of Directors or other employee or agent of the Corporation ("Indemnitee").
WHEREAS, Indemnitee is an Authorized Representative of the Corporation, as
"Authorized Representative" is defined in Section 1 hereof; and
WHEREAS, the Corporation desires that Indemnitee oppose and defend against
what Indemnitee may consider to be unjustified investigations, claims, actions,
suits and proceedings which have arisen or may arise in the future as a result
of Indemnitee's service to the Corporation notwithstanding that conditions in
the insurance markets may make directors' and officers' or other liability
insurance coverage unavailable or available only at premium levels which the
Corporation may deem inappropriate to pay; and
WHEREAS, the parties believe it appropriate to memorialize and reaffirm
the Corporation's indemnification obligation to Indemnitee and, in addition,
set forth the indemnification agreements contained herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
1. Authorized Representative. For the purposes of this Agreement, the
term "Authorized Representative" shall mean a director or officer of the
Corporation; a person serving at the request of the Corporation as a director,
officer, employee, fiduciary or other representative of another corporation,
partnership, joint venture, trust, employee benefit plan or other entity; and
any other person denominated by the Board of Directors of the Corporation as
entitled to the benefit of the indemnification provisions of the Corporation's
Bylaws or of an indemnification agreement similar to this Agreement.
2. Indemnification.
(a) Indemnitee shall be indemnified and held harmless by the Corporation
to the fullest extent permitted by its Articles of Incorporation and Bylaws and
the Georgia Business Corporation Code, as the same exists or may hereafter be
amended, against all expenses, liability and loss (including attorneys' fees,
judgments, fines, and amounts paid or to be paid in any settlement approved in
advance by the Corporation, such approval not to be unreasonably withheld)
(collectively, "Indemnifiable Expenses") actually and reasonably incurred or
suffered by Indemnitee in connection with any present or future threatened,
pending or contemplated investigation, claim, action, suit or proceeding,
whether civil, criminal, administrative or investigative (collectively,
"Indemnifiable Litigation"):
(i) to which Indemnitee is or was a party or is threatened to be
made a party by reason of any action or inaction in Indemnitee's capacity
as an Authorized Representative, or
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(ii) with respect to which Indemnitee is otherwise involved by
reason of the fact that Indemnitee is or was serving as an Authorized
Representative; provided, however, that no subsequent change in the
Corporation's Articles of Incorporation or Bylaws or the Georgia Business
Corporation Code shall have the effect of limiting or eliminating the
indemnification available under this Agreement as to any act, omission or
capacity for which the Agreement provides indemnification at the time of
act, omission or capacity. If any change after the date of this
Agreement in any applicable law, statute or rule expands the power of the
Company to indemnify an Authorized Representative, such change shall be
within the purview of Indemnitee's rights and the Company's obligations
under this Agreement. If any change in any applicable law, statute or
rule narrows the right of the Company to indemnify an Authorized
Representative, such change, to the extent otherwise required by law,
statute or rule to be applied to this Agreement, shall have no effect on
this Agreement or the parties' rights and obligations hereunder.
Notwithstanding the foregoing, unless the Board of Directors consents,
Indemnitee shall not be indemnified and held harmless in any
Indemnifiable Litigation (a) initiated by Indemnitee or (b) pending on or
before the date first above written.
(b) In the event of payment under this Agreement, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of
the Indemnitee, who shall execute all papers required and shall do everything
that may be necessary to secure such rights, including the execution of such
documents necessary to enable the Corporation effectively to bring suit to
enforce such rights.
(c) The Corporation shall not be liable under this Agreement to make any
payment in connection with any claim made against the Indemnitee;
(i) for which payment is actually made to the Indemnitee under a
valid and collectible insurance policy, except in respect of any excess
beyond the amount of payment under such insurance;
(ii) for which the Indemnitee is entitled to indemnity and/or
payment by reason of having given notice of any circumstance which might
give rise to a claim under any policy of insurance, the terms of which
have expired prior to the effective date of this Agreement;
(iii) for which the Indemnitee is indemnified by the Corporation
otherwise than pursuant to this Agreement;
(iv) based upon or attributable to the Indemnitee gaining in fact
any personal profit or advantage to which he was not legally entitled;
(v) for an accounting of profits made from the purchase or sale by
the Indemnitee of securities of the Corporation 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
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(vi) brought about or contributed to by the dishonesty of the
Indemnitee seeking payment hereunder; however, notwithstanding the
foregoing, the Indemnitee shall be protected under this Agreement as to
any claims upon which suit may be brought against him by reason of any
alleged dishonesty on his part, unless a judgment or other final
adjudication thereof adverse to Indemnitee shall establish that he
committed acts of active and deliberate dishonesty with actual dishonest
purpose and intent, which acts were material to the cause of action so
adjudicated.
3. Interim Expenses. The Corporation agrees to pay Indemnifiable Expenses
incurred by Indemnitee in connection with any Indemnifiable Litigation in
advance of the final disposition thereof, provided that the Corporation has
received an undertaking from or on behalf of Indemnitee, substantially in the
form attached hereto as Annex I, to repay the amount so advanced to the extent
that it is ultimately determined that Indemnitee is not entitled to be
indemnified by the Corporation under this Agreement or otherwise.
4. Procedure for Making Demand.
(a) Payments of Indemnifiable Expenses and advances provided for in
Sections 2 and 3 hereof shall be made no later than forty-five (45) days after
receipt of the written request of Indemnitee, and Indemnitee shall be deemed to
have met the applicable standard of conduct required for indemnification unless
a determination is made within said 45-day period by
(i) the Corporation's Board of Directors by a majority vote of a
quorum consisting of disinterested directors who are not parties to the
Indemnification Litigation giving rise to the demand,
(ii) if such a quorum of disinterested directors is not obtainable,
or even if obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion or
(iii) by the Corporation's stockholders, that Indemnitee has not met
the relevant standard of conduct for indemnification set forth in Section
2 hereof. Indemnitee may contest the determination that Indemnitee has
not met the relevant standard of indemnification by petitioning a court
to make an independent determination with respect to the right of
indemnification, in accordance with the terms of Section 5 hereof.
(b) If a determination of entitlement to indemnification is to be made by
independent counsel under Section 4 of this Agreement, the independent counsel
shall be selected by the Board of Directors of the Corporation, and the
Corporation shall give written notice to Indemnitee advising Indemnitee of the
identity of the independent counsel so selected. The Corporation shall pay any
and all reasonable fees and expenses of independent counsel incurred by such
independent counsel in connection with acting pursuant to this Agreement. Upon
the commencement of any contest challenging a determination that Indemnitee has
not met the relative standard of indemnification under Section 4(a) above, the
independent counsel so retained shall be discharged and relieved of any further
responsibility in such capacity, subject to the applicable standards of
professional conduct then prevailing.
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5. Failure to Indemnify.
(a) If a claim under this Agreement, or any statute, or under any
provision of the Corporation's Articles of Incorporation or Bylaws providing
for indemnification, is not paid in full by the Corporation within forty-five
(45) days after a written request for payment thereof has been received by the
Corporation, Indemnitee may, but need not, at any time thereafter bring an
action against the Corporation to recover the unpaid amount of the claim and,
if successful in whole or in part, Indemnitee also shall be entitled to be paid
for the expense (including attorneys' fees) of bringing such action.
(b) It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in connection with any action, suit or
proceeding in advance of its final disposition) that Indemnitee has not met the
standards of conduct which make it permissible under applicable law for the
Corporation to indemnify Indemnitee for the amount claimed, but the burden of
proving such defense shall be on the Corporation and Indemnitee shall be
entitled to receive interim payments of interim expenses pursuant to Section 3
hereof unless and until such defense may be finally adjudicated by court order
or judgment from which no further right of appeal exists. It is the parties'
intention that if the Corporation contests Indemnitee's right to
indemnification, the question of Indemnitee's right to indemnification shall be
for the court to decide, and neither the failure of the Corporation (including
its Board of Directors, any committee of the Board of Directors, independent
legal counsel, or its stockholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances because Indemnitee
has met the applicable standard of conduct required by applicable law, nor an
actual determination by the Corporation (including its Board of Directors, any
committee of the Board of Directors, independent legal counsel, or its
stockholders) that Indemnitee has not met such applicable standard of conduct,
shall create a presumption that Indemnitee has or has not met the applicable
standard of conduct.
6. Successors. This Agreement establishes contract rights which shall be
binding upon, and shall inure to the benefit of, the successors, assigns, heirs
and legal representatives of the parties hereto.
7. Contract Rights Not Exclusive. The contract rights conferred by this
Agreement shall be in addition to, but not exclusive of, any other right which
Indemnitee may have or may hereafter acquire under any statute, provision of
the Corporation's Articles of Incorporation or Bylaws, agreement, vote of
stockholders or disinterested directors, or otherwise.
8. Indemnitee's Obligations. The Indemnitee shall promptly advise the
Corporation in writing of the institution of any investigation, claim, action,
suit or proceeding which is or may be subject to this Agreement and keep the
Corporation generally informed of, and consult with the Corporation with
respect to, the status of any such investigation, claim, action, suit or
proceeding. Notices to the Corporation shall be directed to Graphic
Industries, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Secretary (or such other address as the Corporation shall designate in writing
to Indemnitee). Notice shall be deemed received three days after the date
postmarked if sent by certified or registered mail, properly addressed. In
addition, Indemnitee shall give the Corporation such information and
cooperation as it may reasonably require and as shall be within Indemnitee's
power.
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9. Severability. Should any provisions of this Agreement, or any clause
hereof, be held to be invalid, illegal or unenforceable, in whole or in part,
the remaining provisions and clauses of this Agreement shall remain fully
enforceable and binding on the parties.
10. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding 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.
11. Choice of Law. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Georgia.
12. Change in Position. This Agreement shall continue in full force and
effect, and a new agreement between the parties hereto need not be executed and
delivered,
(a) if Indemnitee is an officer or member of the Board of Directors of the
Corporation as of the date of this Agreement, as long as Indemnitee continues
to serve as an officer or member of the Board of Directors of the Corporation,
notwithstanding any change in the position(s) shown below as held by the
Indemnitee with the Corporation; or
(b) if Indemnitee is neither an officer or member of the Board of
Directors of the Corporation, as long as Indemnitee continues to serve in the
position shown below or, if more than one position is shown below, in at least
one of the positions shown below.
13. Entire Agreement. This Agreement constitutes the entire, full and
complete agreement between the Corporation and the Indemnitee concerning the
subject matter hereof and shall supersede, and makes null and void, all prior
related agreements between Graphic Industries, Inc. and the Indemnitee.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
INDEMNITEE: GRAPHIC INDUSTRIES, INC.
By:
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Title:
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Name:
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Position(s) Held With The
Corporation:
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ANNEX I
UNDERTAKING AGREEMENT
This Agreement is made on ___________________, 19___, between GRAPHIC
INDUSTRIES, INC., a Georgia corporation (the "Corporation"), and ____________
____________________, an officer, member of the Board of Directors or other
employee or agent of the Corporation ("Indemnitee"),
WHEREAS, Indemnitee has become involved in investigations, claims,
actions, suits or proceedings which have arisen as a result of Indemnitee's
service to the Corporation; and
WHEREAS, Indemnitee believes in good faith that he is entitled to
indemnification from the Corporation; and
WHEREAS, Indemnitee desires that the Corporation pay any and all expenses
(including, but not limited to, attorneys' fees and court costs) actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in defending or
investigating any such suits or claims and that such payment be made in advance
of the final disposition of such investigations, claims, actions, suits or
proceedings to the extent that Indemnitee has not been previously reimbursed by
insurance; and
WHEREAS, the Corporation is willing to make such payments, but only if it
receives an undertaking to repay from Indemnitee; and
WHEREAS, Indemnitee is willing to give such an undertaking.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto agree as follows:
1. Indemnitee hereby affirms that he acted in a manner he believed in good
faith to be in or not opposed to the best interests of the Corporation and, in
the case of a criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful.
2. In regard to any payments made by the Corporation to Indemnitee
pursuant to the terms of the Indemnification Agreement dated September 28,
1997, between the Corporation and Indemnitee, Indemnitee hereby undertakes and
agrees to repay to the Corporation any and all amounts so paid promptly and in
any event within thirty (30) days after the disposition, including any appeals,
of any litigation or threatened litigation on account of which payments were
made; provided, however, that Indemnitee shall not be required to repay the
amount as to which he is determined to be entitled to be indemnified by the
Corporation under the Bylaws of the Corporation and the Georgia Business
Corporation Code or other applicable law.
3. This Agreement shall not affect in any manner the rights which
Indemnitee may have against the Corporation, any insurer or any other person to
seek indemnification for or reimbursement of any expenses referred to herein or
any judgment which may be rendered in any litigation or proceeding.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first above written.
INDEMNITEE GRAPHIC INDUSTRIES, INC.
By:
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Title:
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Name:
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Position(s) Held With the
Corporation:
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