EXHIBIT 10.1
FORM OF INDEMNITY AGREEMENT
(A SIMILAR FORM OF THIS DOCUMENT WILL BE USED FOR EACH
OFFICER AND DIRECTOR.)
INDEMNITY AGREEMENT
This Indemnity Agreement (the "Agreement") is made as of January 31, 1996 by and
between PS Group Holdings, Inc., a Delaware corporation (the "Company"), and
____________________ (the "Indemnitee"), a director of the Company.
R E C I T A L S
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A. The Indemnitee is currently serving as a director of the Company and in
such capacity has rendered valuable services to the Company.
B. The Company has investigated the availability and sufficiency of
liability insurance and Delaware statutory indemnification provisions to provide
its directors and officers with adequate protection against various legal risks
and potential liabilities to which such individuals are subject due to their
positions with the Company and has concluded that such insurance and statutory
provisions may provide inadequate and unacceptable protection to certain
individuals requested to serve as its directors and officers.
C. In order to induce and encourage highly experienced and capable persons
such as the Indemnitee to continue to serve as a director of the Company, the
Board of Directors has determined, after due consideration and investigation of
the terms and provisions of this Agreement and the various other options
available to the Company and the Indemnitee in lieu hereof, that this Agreement
is not only reasonable and prudent but necessary to promote and ensure the best
interests of the Company and its stockholders.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the continued services of the
Indemnitee and in order to induce the Indemnitee to continue to serve as a
director, the Company and the Indemnitee do hereby agree as follows:
1. Definitions. As used in this Agreement:
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(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit or proceeding, whether brought in the name of the
Company or otherwise and whether of a civil, criminal or administrative or
investigative nature, by reason of the fact that the Indemnitee is or was a
director of the Company, or is or was serving at the request of the Company
as a director, officer, employee or agent of another enterprise, whether or
not he is serving in such capacity at the time any liability or expense is
incurred for which indemnification or reimbursement is to be provided under
this Agreement.
(b) The term "Expenses" includes, without limitation, attorneys' fees,
disbursements and retainers, accounting and witness fees, travel and
deposition costs, expenses of investigations, judicial or administrative
proceedings and appeals, amounts paid in settlement by or on behalf of the
Indemnitee, and any expenses of establishing a right to indemnification,
pursuant to this Agreement or otherwise, including reasonable compensation
for time spent by the Indemnitee in connection with the investigation,
defense or appeal of a Proceeding or action for indemnification for which
he is not
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otherwise compensated by the Company or any third party. The term
"Expenses" does not include the amount of judgments, fines, penalties or
ERISA excise taxes actually levied against the Indemnitee.
2. Agreement to Serve. The Indemnitee agrees to continue to serve as a
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director of the Company at the will of the Company for so long as he is duly
elected or appointed or until such time as he tenders his resignation in
writing.
3. Indemnification in Third Party Actions. The Company shall indemnify
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the Indemnitee in accordance with the provisions of this section if the
Indemnitee is a party to or threatened to be made a party to or is otherwise
involved in any Proceeding (other than a Proceeding by or in the name of the
Company to procure a judgment in its favor), by reason of the fact that the
Indemnitee is or was a director of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of another
enterprise, against all Expenses, judgments, fines, penalties and ERISA excise
taxes actually and reasonably incurred by the Indemnitee in connection with the
defense or settlement of such a Proceeding, to the fullest extent permitted by
Delaware law; provided that any settlement of a Proceeding be approved in
writing by the Company.
4. Indemnification in Proceedings By or In the Name of the Company. The
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Company shall indemnify the Indemnitee in accordance with the provisions of this
section if the Indemnitee is a party to or is threatened to be made a party to
or otherwise involved in any Proceedings by or in the name of the Company to
procure a judgment in its favor by reason of the fact that the Indemnitee was or
is a director of the Company, or is or was serving at the request of the Company
as a director, officer, employee or agent of another enterprise, against all
Expenses actually and reasonably incurred by the Indemnitee in connection with
the defense or settlement of such a Proceeding, to the fullest extent permitted
by Delaware law.
5. Conclusive Presumption Regarding Standards of Conduct. The Indemnitee
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shall be conclusively presumed to have met the relevant standards of conduct, as
defined by Delaware law, for indemnification pursuant to this Agreement, unless
a determination is made that the Indemnitee has not met such standards (i) by
the Board of Directors by a majority vote of a quorum thereof consisting of
directors who were not parties to the Proceeding due to which a claim is made
under this Agreement, (ii) by the stockholders of the Company by majority vote
of a quorum thereof consisting of stockholders who were not parties to such a
Proceeding, or (iii) in a written opinion of independent legal counsel,
selection of whom has been approved by the Indemnitee in writing.
6. Indemnification of Expenses of Successful Party. Notwithstanding any
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other provisions of this Agreement, to the extent that the Indemnitee has been
successful in defense of any Proceeding or in defense of any claim, issue or
matter therein, on the merits or otherwise, including the dismissal of a
Proceeding without prejudice, the Indemnitee shall be indemnified against all
Expenses incurred in connection therewith to the fullest extent permitted by
Delaware law.
7. Advances of Expenses. The Expenses incurred by the Indemnitee in any
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Proceeding shall be paid promptly by the Company in advance of the final
disposition of the Proceeding at the written request of the Indemnitee to the
fullest extent permitted by Delaware law; provided that as long as Delaware law
requires such an undertaking, the Indemnitee shall
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undertake in writing to repay any advances to the extent that it is ultimately
determined that the Indemnitee is not entitled to indemnification.
8. Partial Indemnification. If the Indemnitee is entitled under any
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provision of this Agreement to indemnification by the Company for a portion of
the Expenses, judgments, fines, penalties or ERISA excise taxes actually and
reasonably incurred by him in the investigation, defense, appeal or settlement
of any Proceeding but not, however, for the total amount thereof, the Company
shall nevertheless indemnify the Indemnitee for that portion of Expenses,
judgments, fines, penalties or ERISA excise taxes to which the Indemnitee is
entitled.
9. Indemnification Procedure; Determination of Right to Indemnification.
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(a) Promptly after receipt by the Indemnitee of notice of the
commencement of any Proceeding, the Indemnitee shall, if a claim in respect
thereof is to be made against the Company under this Agreement, notify the
Company of the commencement thereof in writing. The omission to so notify
the Company will not relieve it from any liability which it may have to the
Indemnitee otherwise than under this Agreement.
(b) If a claim for indemnification or advances under this Agreement is
not paid by the Company within 30 days of receipt of written notice, the
rights provided by this Agreement shall be enforceable by the Indemnitee in
any court of competent jurisdiction. The burden of proving by clear and
convincing evidence that indemnification or advances are not appropriate
shall be on the Company. Neither the failure of the directors or
stockholders of the Company or its independent legal counsel to have made a
determination prior to the commencement of such action that indemnification
or advances are proper in the circumstances because the Indemnitee has met
the applicable standard of conduct, nor an actual determination by the
directors or stockholders of the Company or independent legal counsel that
the Indemnitee has not met the applicable standard of conduct, shall be a
defense to the action or create a presumption that the Indemnitee has not
met the applicable standard of conduct.
(c) The Indemnitee's Expenses incurred in connection with any
proceeding concerning his right to indemnification or advances in whole or
in part pursuant to this Agreement shall also be indemnified by the Company
regardless of the outcome of such a proceeding, unless a court of competent
jurisdiction determines that each of the material assertions made by the
Indemnitee in the proceeding was not made in good faith or was frivolous.
(d) With respect to any Proceeding for which indemnification is
requested, the Company will be entitled to participate therein at its own
expense and, except as otherwise provided below, to the extent that it may
wish, the Company may assume the defense thereof, with counsel satisfactory
to the Indemnitee. After notice from the Company to the Indemnitee of its
election to assume the defense of a Proceeding, the Company will not be
liable to the Indemnitee under this Agreement for any Expenses subsequently
incurred by the Indemnitee in connection with the defense thereof, other
than as provided below. The Company shall not settle any Proceeding in any
manner which would impose any penalty or limitation on the Indemnitee
without the Indemnitee's written consent. The Indemnitee shall have the
right to employ his counsel in any Proceeding but the fees and expenses of
such counsel incurred after notice from the
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Company of its assumption of the defense of the Proceeding shall be at the
expense of the Indemnitee, unless (i) the employment of counsel by the
Indemnitee has been authorized by the Company, (ii) the Indemnitee shall
have reasonably concluded that there may be a conflict of interest between
the Company and the Indemnitee in the conduct of the defense of a
Proceeding, or (iii) the Company shall not in fact have employed counsel to
assume the defense of a Proceeding, in each of which cases the fees and
expenses of the Indemnitee's counsel shall be advanced by 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 the Indemnitee has
made the conclusion that there may be a conflict of interest between the
Company and the Indemnitee.
10. Limitations on Indemnification. No payments pursuant to this
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Agreement shall be made by the Company:
(a) To indemnify or advance funds to the Indemnitee for expenses with
respect to proceedings initiated or brought voluntarily by the Indemnitee
and not by way of defense, except with respect to proceedings brought to
establish or enforce a right to indemnification under this Agreement or any
other statute or law or otherwise as required under Delaware law, but such
indemnification or advancement of expenses may be provided by the Company
in specific cases if the Board of Directors finds it to be appropriate;
(b) To indemnify the Indemnitee for any Expenses, judgements, fines,
penalties or ERISA excise taxes sustained in any Proceeding 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;
(c) To indemnify the Indemnitee for any Expenses, judgements, fines or
penalties sustained in any Proceeding for an accounting of profits made
from the purchase or sale by Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Securities Exchange Act
of 1934, the rules and regulations promulgated thereunder and amendments
thereto or similar provisions of any federal, state or local statutory law;
(d) To indemnify the Indemnitee for any Expenses, judgements, fines,
penalties or ERISA excise taxes resulting from the Indemnitee's conduct
which is finally adjudged to have been willful misconduct, knowingly
fraudulent or deliberately dishonest; or
(e) If a court of competent jurisdiction finally determines that any
indemnification hereunder is unlawful.
11. Maintenance of Liability Insurance.
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(a) The Company hereby covenants and agrees that, as long as the
Indemnitee shall continue to serve as a director of the Company and
thereafter as long as the Indemnitee may be subject to any possible
Proceeding, the Company, subject to subsection (c) below, shall promptly
obtain and maintain in full force and effect
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directors' and officers' liability insurance ("D&O Insurance") in
reasonable amounts from established and reputable insurers.
(b) In all D&O Insurance policies, the Indemnitee shall be named as an
insured in such a manner as to provide the Indemnitee the same rights and
benefits as are accorded to the most favorably insured of the Company's
directors.
(c) Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain D&O Insurance if the Company determines in
good faith that such insurance is not reasonably available, the premium
costs for such insurance are disproportionate to the amount of coverage
provided, the coverage provided by such insurance is so limited by
exclusions that it provides an insufficient benefit, or the Indemnitee is
covered by similar insurance maintained by a subsidiary of the Company.
12. Indemnification Hereunder Not Exclusive. The indemnification provided
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by this Agreement shall not be deemed exclusive of any other rights to which the
Indemnitee may be entitled under the Certificate of Incorporation, Bylaws, any
agreement, any vote of disinterested stockholders or directors, provision of
Delaware law, or otherwise, both as to action in his official capacity and as to
action in another capacity on behalf of the Company while holding such office.
13. Successors and Assigns. This Agreement shall be binding upon, and
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shall enure to the benefit of the Indemnitee and his heirs, personal
representatives and assigns, and the Company and its successors and assigns.
14. Separability. Each provision of this Agreement is a separate and
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distinct agreement and independent of the others, so that if any provision
hereof 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 hereof. To the extent required, any provision of this
Agreement may be modified by a court of competent jurisdiction to preserve its
validity and to provide the Indemnitee with the broadest possible
indemnification permitted under Delaware law.
15. Savings Clause. If this Agreement or any portion hereof is
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invalidated on any ground by any court of competent jurisdiction, the Company
shall nevertheless indemnify the Indemnitee as to any Expenses, judgments,
fines, penalties or ERISA excise taxes incurred with respect to any Proceeding
to the full extent permitted by any applicable provision of this Agreement that
shall not have been invalidated or by applicable Delaware law.
16. Interpretation; Governing Law. This Agreement shall be construed as a
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whole and in accordance with its fair meaning. Headings are for convenience
only and shall not be used in construing meaning. This Agreement shall be
governed and interpreted in accordance with the laws of the State of Delaware.
17. Amendments. No amendment, waiver, modification, termination or
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cancellation of this Agreement shall be effective unless in writing signed by
the party against whom enforcement is sought. The indemnification rights
afforded to the Indemnitee hereby are contract rights and may not be diminished,
eliminated or otherwise affected by amendments to the Certificate of
Incorporation, Bylaws or by other agreements, including D&O Insurance policies.
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18. Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other.
19. Notices. Any notice required to be given under this Agreement shall
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be directed to PS Group Holdings, Inc. at 0000 XxXxxxx Xxxxxxx Xxxxx, Xxxxx
0000, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Corporate Secretary and to
Indemnitee at__________________________________________________________________
________________, or to such other address as either shall designate
in writing.
IN WITNESS WHEREOF, the parties have executed this Indemnity Agreement as
of the date first written above.
INDEMNITEE
_________________________________
PS GROUP HOLDINGS, INC.
By_______________________________
Its:
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