Form of Indemnification Agreements between The Mint Leasing, Inc. (f/k/a Legacy Communications Corporation) and each of Jerry Parish, Michael Hluchanek, and Kelley V. Kirker
Exhibit
10.4
Form of
Indemnification Agreements between The Mint Leasing, Inc. (f/k/a Legacy
Communications Corporation) and each of Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxxx, and
Xxxxxx X. Xxxxxx
AGREEMENT, effective as of
July 14, 2008, between The Mint Leasing, Inc., a Nevada corporation (the
"Company"), and _Jerry Parish ("Indemnitee").
WHEREAS, Indemnitee is a
director (or officer) of the Company;
WHEREAS, both the Company and
Indemnitee recognize the increased risk of litigation and other claims being
asserted against directors and officers of public companies at a time when it
has become increasingly difficult to obtain adequate insurance coverage at
reasonable costs;
WHEREAS, in recognition of
Indemnitees need for substantial protection against personal liability in order
to enhance Indemnitees continued service to the Company in an effective manner,
the Company wishes to provide in this Agreement for the identification of and
the advancing of expenses to Indemnitee to the full extent (whether partial or
complete) permitted by law and as set forth in this Agreement, and, to the
extent insurance is maintained, for the continued coverage of Indemnitee under
the Company's directors' and officers' liability insurance policies, regardless
of any future change in the Certificate of Incorporation, By-Laws, composition
of the Board of Directors, or structure of the Company.;
NOW, THEREFORE, in
consideration of the premises and of Indemnitee's service to the Company,
directly or indirectly, and intending to be legally bound hereby, the parties
hereto agree as follows:
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1.
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In
the event Indemnitee was, is, or becomes a party to or a witness or other
participant in, or is threatened to be made a party to or a witness or
other participant in, any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether conducted by the
Company or any other party, that Indemnitee in good faith believes might
lead to any such action, suit or proceeding, whether civil, criminal,
administrative, investigative or otherwise (a "Claim") by reason of (or
arising in part out of) the fact that Indemnitee is or was a director,
officer, employee, agent or fiduciary of the Company, or is or was serving
at the request of the Company as a director, officer, employee, trustee,
agent or fiduciary of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, or by reason of anything
done or not done by Indemnitee in any such capacity (an "Indemnifiable
Event"), the Company shall indemnify Indemnitee to the full extent
permitted by law (the determination of which shall be made by the
Reviewing Party referred to below) as soon as practicable but in any event
no later than thirty days after written demand is presented to the
Company, against any and all expenses (including attorneys' fees and all
other costs, expenses, and obligations paid or incurred in connection with
investigating, preparing for and defending or participating in the defense
of (including on appeal) any Claim relating to any Indemnifiable
Event) (collectively "Expenses"), judgments, fines, penalties
and amounts paid in settlement (including all interest, assessments and
other charges paid or payable in connection with or in respect of such
judgments, fines, penalties or amounts paid in settlement) of such Claim
and, if so requested by Indemnitee, the Company shall advance (within two
business days of such request) any and all such Expenses to
Indemnitee; provided, however, that (i) the foregoing
obligation of the Company shall not apply to a Claim that was commenced by
the Indemnitee without the prior approval of the Board of Directors of the
Company unless the Claim was commenced after a Change in Control (as
defined in Section 5 herein); (ii) the foregoing obligation of
the Company shall be subject to the condition that an appropriate person
or body (the "Reviewing Party") shall not have determined (in a written
opinion in any case in which the special, independent counsel referred to
in Section 4 hereof is involved) that Indemnitee would not be permitted to
be indemnified for such Expenses under applicable law; and
(iii) if, when and to the extent that the Reviewing Party determines that
Indemnitee would not be permitted to be indemnified for such Expenses
under applicable law, the Company shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Company) for all such
amounts theretofore paid (unless Indemnitee has commenced legal
proceedings in a court of competent jurisdiction to secure a determination
that Indemnitee should be indemnified under applicable law, in which event
Indemnitee shall not be required to so reimburse the Company until a final
judicial determination requiring such reimbursement is made with respect
thereto as to which all rights of appeal therefrom have been exhausted or
lapsed) and the Company shall not be obligated to indemnify or advance any
additional amounts to Indemnitee under this Agreement (unless there has
been a determination by a court of competent jurisdiction that the
Indemnitee would be permitted to be so indemnified or entitled to such
expense advances under applicable
law).
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1
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2.
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If
there has not been a Change in Control of the Company (as hereinafter
defined), the Reviewing Party shall be (1) quorum of the Board of
Directors consisting of directors who are not parties to the action, suit
or proceeding acting by majority vote, or, (2) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, independent legal counsel by the use of a written opinion or (3)
the stockholders. If there has been a Change in Control of the
Company, the Reviewing Party shall be the special, independent counsel
referred to in Section 4 hereof.
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3.
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If
Indemnitee has not been indemnified by the expiration of the foregoing
thirty-day period or received expense advances or if the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified or be
entitled to receive expense advances within two days of the request
therefor in whole or in part under applicable law, Indemnitee shall have
the right to commence litigation seeking from the court a finding that
Indemnitee is entitled to indemnification and expense advances or
enforcement of Indemnitee's entitlement to indemnification and expense
advances or challenging any determination by the Reviewing Party or any
aspect thereof that Indemnitee is not entitled to be indemnified or
receive expense advances and the burden of proving that indemnification or
advancement of expenses is not appropriate shall be on the Company; any
determination by the Reviewing Party in favor of Indemnitee shall be
conclusive and binding on the Company, unless facts supplied by Indemnitee
which form the basis for the determination are subsequently determined to
have been materially incorrect at the time supplied. Indemnitee
agrees to bring any such litigation in any court in the States of Texas
having subject matter jurisdiction thereof and in which venue is proper,
and the Company hereby consents to service of process and to appear in any
such proceeding.
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4.
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The
Company agrees that if there is a Change in Control of the Company (as
hereinafter defined), then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and expense
advances under this Agreement or any other agreement or By-laws now or
hereafter in effect relating to Claims for Indemnifiable Events, the
Company shall seek legal advice only from special, independent counsel
selected by Indemnitee who a majority of the disinterested Directors
approves (which approval shall not be unreasonably withheld), and who has
not otherwise performed services for the Company or
Indemnitee. Such counsel, among other things, shall determine
whether and to what extent Indemnitee is permitted to be indemnified or is
entitled to expense advances under applicable law and shall render its
written opinion to the Company and Indemnitee to such
effect. The Company agrees to pay the reasonable fees of the
special, independent counsel referred to above and to fully indemnify such
counsel against any and all expenses (including attorney's fees), claims,
liabilities and damages arising out of or relating to this Agreement or
its engagement pursuant hereto except for willful misconduct or gross
negligence.
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2
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5.
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For
purposes of this Agreement, (a) "Change in Control of the Company" shall
be deemed to have occurred if (i) any "person" (as such term is used in
Sections 13(d)(3) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company, is or becomes the beneficial
owner (as defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing 20% or more of the combined
voting power of the Company's then outstanding securities, or (ii) during
any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the stockholders of the Company
approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in
the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 80% of the combined voting power of the voting
securities of the Company of such surviving entity outstanding immediately
after such merger or consolidation, or if the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for
the sale or disposition by the Company of all or substantially all the
Company's assets.
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6.
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To
the extent Indemnitee is successful in such proceeding, the Company shall
indemnify Indemnitee against any and all expenses (including attorney's
fees) which are incurred by the Indemnitee in connection with any claim
asserted or action brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Company under this Agreement or any
other agreement or Company By-laws now or hereafter in effect relating to
Claims for Indemnifiable Events and/or (ii) recovery under any directors'
and officers' liability insurance policies maintained by the Company,
regardless of whether Indemnitee ultimately is determined to be entitled
to such indemnification, advance payment of Expenses or insurance
recovery, as the case may be.
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7.
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If
Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses,
judgments, fines, penalties and amounts paid in settlement of any Claim
but not, however, for all of the total amount thereof, the Company shall
nevertheless 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 the defense of any Claim relating in whole or in
part to any Indemnifiable Event or in defense of any issue or matter
therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection
therewith.
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8.
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For
purposes of this Agreement, the termination of any Claim by judgment,
order, settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere, or its equivalent, shall not create a
presumption that Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has determined that
Indemnitee is not entitled to indemnification or expense advance or that
indemnification or expense advance is not permitted by applicable
law.
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9.
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The
Company hereby agrees that, so long as Indemnitee shall continue to serve
in a capacity referred to in Section 1 hereof, and thereafter so long as
Indemnitee shall be subject to any possible claim or threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that Indemnitee
served in any capacity referred to in Section 1 hereof, the Company shall
maintain in effect for the benefit of Indemnitee any Directors' and
Officers' Liability Insurance presently in force and effect, providing, in
all respects, coverage at least comparable to that presently provided;
provided, however, if, in the business judgment of the then Board, either
(a) the premium cost for such insurance is substantially disproportionate
to the amount of coverage, or (b) the coverage provided by such insurance
is so limited by exclusions that there is insufficient benefit from such
insurance, then and in that event the Company shall not be required to
maintain such insurance but shall and hereby agrees to the full extent
permitted by law to hold harmless and indemnify Indemnitee to the fullest
extent of the coverage which would otherwise have been provided for the
benefit of Indemnitee.
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3
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10.
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(a)
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In
the event of any changes after the date of this Agreement in any
applicable law, statute, or rule which expands the right of the Company to
indemnify a person serving in a capacity referred to in Section 1 hereof,
such change shall be within the purview of Indemnitee's rights, and the
Company's obligations, under this Agreement. In the event of
any changes in any applicable law, statute, or rule which narrow the right
of the Company to indemnify a person serving in a capacity referred to in
Section 1 hereof, such changes, to the extent not otherwise required by
such law, statute or rule to be applied to this Agreement, shall have no
effect on this Agreement or the parties' rights and obligations
hereunder.
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(b)
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The
indemnification provided by this Agreement shall not be deemed exclusive
of any rights to which Indemnitee may be entitled under the Company's
Certificate of Incorporation, its By-laws, any agreement, any vote of
stockholders or disinterested directors, laws and regulations in effect
now or in the future, or otherwise, both as to action in Indemnitee's
official capacity and as to action in another capacity while holding such
office.
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11.
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If
the indemnification provided in Section 1 is unavailable and may not be
paid to Indemnitee because such indemnification is not permitted by law,
then in respect of any threatened, pending or completed action, suit or
proceeding in which the Company is jointly liable with Indemnitee (or
would be if joined in such action, suit or proceeding), the Company shall
contribute to the full extent permitted by law, to the amount of expenses,
judgments, fines (including excise taxes and penalties) and amounts paid
in settlement actually and reasonably incurred and paid or payable by
Indemnitee in such proportion as is appropriate to reflect (i) the
relative benefits received by the Company on the one hand and Indemnitee
on the other hand from the transaction from which such action, suit or
proceeding arose, and (ii) the relative fault of the Company on the one
hand and of Indemnitee on the other in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts, as well
as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of Indemnitee on the other shall
be determined by reference to among other things, the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent the circumstances resulting in such expenses, judgments, fines or
settlement amounts. The Company agrees that it would not be
just and equitable if contribution pursuant to this paragraph were
determined by pro rata allocation or any other method of allocation which
does not take account of the foregoing equitable
considerations.
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12.
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All
obligations of the Company contained herein shall continue during the
period Indemnitee serves in a capacity referred to in Section 1 hereof of
the Company and shall continue thereafter so long as Indemnitee shall be
subject to any possible Claim relating to an Indemnifiable
Event.
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13.
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(a)
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Promptly
after receipt by Indemnitee of notice of the commencement of any Claim
relating to an Indemnifiable Event or proceeding in which Indemnitee is
made or is threatened to be made a party or a witness, Indemnitee shall
notify the Company of the commencement of such Claim; but the omission so
to notify the Company shall not relieve the Company from any obligation it
may have to indemnify or advance expenses to Indemnitee otherwise than
under this Agreement.
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(b)
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Indemnitee
shall not settle any claim or action in any manner which would impose on
the Company any penalty, constraint, or obligation to hold harmless or
indemnify Indemnitee pursuant to this Agreement without the Company's
prior written consent, which consent shall not be unreasonably
withheld.
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4
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14.
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If
any Claim relating to an Indemnifiable Event, commenced against Indemnitee
is also commenced against the Company, the Company shall be entitled to
participate therein at its own expense, and, except as otherwise provided
hereinbelow, to the extent that it may wish, the Company shall be entitled
to assume the defense thereof. After notice from the Company to
Indemnitee of its election to assume the defense of any Claim, the Company
shall not be obligated 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, travel, and
lodging expenses arising out of Indemnitee's participation in such
Claim. Indemnitee shall have the right to employ Indemnitee's
own counsel in such Claim, but the fees and expenses of such counsel
incurred after notice from the Company to Indemnitee of its assumption of
the defense thereof shall be at the expense of Indemnitee unless (i)
otherwise authorized by the Company, (ii) Indemnitee shall have reasonably
concluded, and so notified the Company, that there may be a conflict of
interest between the Company and Indemnitee in the conduct of the defense
of such Claim, or (iii) the Company shall not in fact have employed
counsel to assume the defense of such Claim, in 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 Claim brought by or on behalf of the Company or its
stockholders or as to which Indemnitee shall have made the conclusion set
forth in (ii) of this Section 14.
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15.
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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.
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16.
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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 papers required and shall do everything
that may be necessary to secure such rights, including the execution of
such documents necessary to enable the Company effectively to bring suit
to enforce such rights.
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17.
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The
Company shall not be liable under this Agreement to make any payment in
connection with any claim made against Indemnitee to the extent Indemnitee
has otherwise actually received payment (under any insurance policy,
By-law or otherwise) of the amounts otherwise indemnifiable
hereunder.
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18.
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This
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors,
assigns, including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs, executors, and personal and
legal representatives. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as an officer or
director of the Company or of any other enterprise at the Company's
request.
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19.
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The
provisions of this Agreement shall be severable in the event that any of
the provisions hereof (including any provision within a single section,
paragraph or sentence) are held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, and the remaining provisions
shall remain enforceable to the full extent permitted by
law.
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20.
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This
Agreement shall be governed by and construed in accordance with the laws
of the State of Texas applicable to contracts made and to be performed in
such state, but excluding any conflicts-of-law rule or principle which
might refer such governance, construction or enforcement to the laws of
another state or country.
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5
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on and as of the day and year first
above written.
THE MINT
LEASING, INC.
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By:
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/s/ Xxxxx Xxxxxx
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Xxxxx
Xxxxxx
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INDEMNITEE
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/s/ Xxxxx Xxxxxx
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Xxxxx
Xxxxxx
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6
AGREEMENT, effective as of
July 14, 2008, between The Mint Leasing, Inc., a Nevada corporation (the
"Company"), and _Michael Hluchanek ("Indemnitee").
WHEREAS, Indemnitee is a
director (or officer) of the Company;
WHEREAS, both the Company and
Indemnitee recognize the increased risk of litigation and other claims being
asserted against directors and officers of public companies at a time when it
has become increasingly difficult to obtain adequate insurance coverage at
reasonable costs;
WHEREAS, in recognition of
Indemnitees need for substantial protection against personal liability in order
to enhance Indemnitees continued service to the Company in an effective manner,
the Company wishes to provide in this Agreement for the identification of and
the advancing of expenses to Indemnitee to the full extent (whether partial or
complete) permitted by law and as set forth in this Agreement, and, to the
extent insurance is maintained, for the continued coverage of Indemnitee under
the Company's directors' and officers' liability insurance policies, regardless
of any future change in the Certificate of Incorporation, By-Laws, composition
of the Board of Directors, or structure of the Company.;
NOW, THEREFORE, in
consideration of the premises and of Indemnitee's service to the Company,
directly or indirectly, and intending to be legally bound hereby, the parties
hereto agree as follows:
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1.
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In
the event Indemnitee was, is, or becomes a party to or a witness or other
participant in, or is threatened to be made a party to or a witness or
other participant in, any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether conducted by the
Company or any other party, that Indemnitee in good faith believes might
lead to any such action, suit or proceeding, whether civil, criminal,
administrative, investigative or otherwise (a "Claim") by reason of (or
arising in part out of) the fact that Indemnitee is or was a director,
officer, employee, agent or fiduciary of the Company, or is or was serving
at the request of the Company as a director, officer, employee, trustee,
agent or fiduciary of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, or by reason of anything
done or not done by Indemnitee in any such capacity (an "Indemnifiable
Event"), the Company shall indemnify Indemnitee to the full extent
permitted by law (the determination of which shall be made by the
Reviewing Party referred to below) as soon as practicable but in any event
no later than thirty days after written demand is presented to the
Company, against any and all expenses (including attorneys' fees and all
other costs, expenses, and obligations paid or incurred in connection with
investigating, preparing for and defending or participating in the defense
of (including on appeal) any Claim relating to any Indemnifiable
Event) (collectively "Expenses"), judgments, fines, penalties
and amounts paid in settlement (including all interest, assessments and
other charges paid or payable in connection with or in respect of such
judgments, fines, penalties or amounts paid in settlement) of such Claim
and, if so requested by Indemnitee, the Company shall advance (within two
business days of such request) any and all such Expenses to
Indemnitee; provided, however, that (i) the foregoing
obligation of the Company shall not apply to a Claim that was commenced by
the Indemnitee without the prior approval of the Board of Directors of the
Company unless the Claim was commenced after a Change in Control (as
defined in Section 5 herein); (ii) the foregoing obligation of
the Company shall be subject to the condition that an appropriate person
or body (the "Reviewing Party") shall not have determined (in a written
opinion in any case in which the special, independent counsel referred to
in Section 4 hereof is involved) that Indemnitee would not be permitted to
be indemnified for such Expenses under applicable law; and
(iii) if, when and to the extent that the Reviewing Party determines that
Indemnitee would not be permitted to be indemnified for such Expenses
under applicable law, the Company shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Company) for all such
amounts theretofore paid (unless Indemnitee has commenced legal
proceedings in a court of competent jurisdiction to secure a determination
that Indemnitee should be indemnified under applicable law, in which event
Indemnitee shall not be required to so reimburse the Company until a final
judicial determination requiring such reimbursement is made with respect
thereto as to which all rights of appeal therefrom have been exhausted or
lapsed) and the Company shall not be obligated to indemnify or advance any
additional amounts to Indemnitee under this Agreement (unless there has
been a determination by a court of competent jurisdiction that the
Indemnitee would be permitted to be so indemnified or entitled to such
expense advances under applicable
law).
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2.
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If
there has not been a Change in Control of the Company (as hereinafter
defined), the Reviewing Party shall be (1) quorum of the Board of
Directors consisting of directors who are not parties to the action, suit
or proceeding acting by majority vote, or, (2) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, independent legal counsel by the use of a written opinion or (3)
the stockholders. If there has been a Change in Control of the
Company, the Reviewing Party shall be the special, independent counsel
referred to in Section 4 hereof.
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3.
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If
Indemnitee has not been indemnified by the expiration of the foregoing
thirty-day period or received expense advances or if the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified or be
entitled to receive expense advances within two days of the request
therefor in whole or in part under applicable law, Indemnitee shall have
the right to commence litigation seeking from the court a finding that
Indemnitee is entitled to indemnification and expense advances or
enforcement of Indemnitee's entitlement to indemnification and expense
advances or challenging any determination by the Reviewing Party or any
aspect thereof that Indemnitee is not entitled to be indemnified or
receive expense advances and the burden of proving that indemnification or
advancement of expenses is not appropriate shall be on the Company; any
determination by the Reviewing Party in favor of Indemnitee shall be
conclusive and binding on the Company, unless facts supplied by Indemnitee
which form the basis for the determination are subsequently determined to
have been materially incorrect at the time supplied. Indemnitee
agrees to bring any such litigation in any court in the States of Texas
having subject matter jurisdiction thereof and in which venue is proper,
and the Company hereby consents to service of process and to appear in any
such proceeding.
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4.
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The
Company agrees that if there is a Change in Control of the Company (as
hereinafter defined), then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and expense
advances under this Agreement or any other agreement or By-laws now or
hereafter in effect relating to Claims for Indemnifiable Events, the
Company shall seek legal advice only from special, independent counsel
selected by Indemnitee who a majority of the disinterested Directors
approves (which approval shall not be unreasonably withheld), and who has
not otherwise performed services for the Company or
Indemnitee. Such counsel, among other things, shall determine
whether and to what extent Indemnitee is permitted to be indemnified or is
entitled to expense advances under applicable law and shall render its
written opinion to the Company and Indemnitee to such
effect. The Company agrees to pay the reasonable fees of the
special, independent counsel referred to above and to fully indemnify such
counsel against any and all expenses (including attorney's fees), claims,
liabilities and damages arising out of or relating to this Agreement or
its engagement pursuant hereto except for willful misconduct or gross
negligence.
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5.
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For
purposes of this Agreement, (a) "Change in Control of the Company" shall
be deemed to have occurred if (i) any "person" (as such term is used in
Sections 13(d)(3) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company, is or becomes the beneficial
owner (as defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing 20% or more of the combined
voting power of the Company's then outstanding securities, or (ii) during
any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the stockholders of the Company
approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in
the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 80% of the combined voting power of the voting
securities of the Company of such surviving entity outstanding immediately
after such merger or consolidation, or if the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for
the sale or disposition by the Company of all or substantially all the
Company's assets.
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6.
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To
the extent Indemnitee is successful in such proceeding, the Company shall
indemnify Indemnitee against any and all expenses (including attorney's
fees) which are incurred by the Indemnitee in connection with any claim
asserted or action brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Company under this Agreement or any
other agreement or Company By-laws now or hereafter in effect relating to
Claims for Indemnifiable Events and/or (ii) recovery under any directors'
and officers' liability insurance policies maintained by the Company,
regardless of whether Indemnitee ultimately is determined to be entitled
to such indemnification, advance payment of Expenses or insurance
recovery, as the case may be.
|
|
7.
|
If
Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses,
judgments, fines, penalties and amounts paid in settlement of any Claim
but not, however, for all of the total amount thereof, the Company shall
nevertheless 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 the defense of any Claim relating in whole or in
part to any Indemnifiable Event or in defense of any issue or matter
therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection
therewith.
|
|
8.
|
For
purposes of this Agreement, the termination of any Claim by judgment,
order, settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere, or its equivalent, shall not create a
presumption that Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has determined that
Indemnitee is not entitled to indemnification or expense advance or that
indemnification or expense advance is not permitted by applicable
law.
|
|
9.
|
The
Company hereby agrees that, so long as Indemnitee shall continue to serve
in a capacity referred to in Section 1 hereof, and thereafter so long as
Indemnitee shall be subject to any possible claim or threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that Indemnitee
served in any capacity referred to in Section 1 hereof, the Company shall
maintain in effect for the benefit of Indemnitee any Directors' and
Officers' Liability Insurance presently in force and effect, providing, in
all respects, coverage at least comparable to that presently provided;
provided, however, if, in the business judgment of the then Board, either
(a) the premium cost for such insurance is substantially disproportionate
to the amount of coverage, or (b) the coverage provided by such insurance
is so limited by exclusions that there is insufficient benefit from such
insurance, then and in that event the Company shall not be required to
maintain such insurance but shall and hereby agrees to the full extent
permitted by law to hold harmless and indemnify Indemnitee to the fullest
extent of the coverage which would otherwise have been provided for the
benefit of Indemnitee.
|
9
|
10.
|
(a)
|
In
the event of any changes after the date of this Agreement in any
applicable law, statute, or rule which expands the right of the Company to
indemnify a person serving in a capacity referred to in Section 1 hereof,
such change shall be within the purview of Indemnitee's rights, and the
Company's obligations, under this Agreement. In the event of
any changes in any applicable law, statute, or rule which narrow the right
of the Company to indemnify a person serving in a capacity referred to in
Section 1 hereof, such changes, to the extent not otherwise required by
such law, statute or rule to be applied to this Agreement, shall have no
effect on this Agreement or the parties' rights and obligations
hereunder.
|
|
|
(b)
|
The
indemnification provided by this Agreement shall not be deemed exclusive
of any rights to which Indemnitee may be entitled under the Company's
Certificate of Incorporation, its By-laws, any agreement, any vote of
stockholders or disinterested directors, laws and regulations in effect
now or in the future, or otherwise, both as to action in Indemnitee's
official capacity and as to action in another capacity while holding such
office.
|
|
11.
|
If
the indemnification provided in Section 1 is unavailable and may not be
paid to Indemnitee because such indemnification is not permitted by law,
then in respect of any threatened, pending or completed action, suit or
proceeding in which the Company is jointly liable with Indemnitee (or
would be if joined in such action, suit or proceeding), the Company shall
contribute to the full extent permitted by law, to the amount of expenses,
judgments, fines (including excise taxes and penalties) and amounts paid
in settlement actually and reasonably incurred and paid or payable by
Indemnitee in such proportion as is appropriate to reflect (i) the
relative benefits received by the Company on the one hand and Indemnitee
on the other hand from the transaction from which such action, suit or
proceeding arose, and (ii) the relative fault of the Company on the one
hand and of Indemnitee on the other in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts, as well
as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of Indemnitee on the other shall
be determined by reference to among other things, the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent the circumstances resulting in such expenses, judgments, fines or
settlement amounts. The Company agrees that it would not be
just and equitable if contribution pursuant to this paragraph were
determined by pro rata allocation or any other method of allocation which
does not take account of the foregoing equitable
considerations.
|
|
12.
|
All
obligations of the Company contained herein shall continue during the
period Indemnitee serves in a capacity referred to in Section 1 hereof of
the Company and shall continue thereafter so long as Indemnitee shall be
subject to any possible Claim relating to an Indemnifiable
Event.
|
|
13.
|
(a)
|
Promptly
after receipt by Indemnitee of notice of the commencement of any Claim
relating to an Indemnifiable Event or proceeding in which Indemnitee is
made or is threatened to be made a party or a witness, Indemnitee shall
notify the Company of the commencement of such Claim; but the omission so
to notify the Company shall not relieve the Company from any obligation it
may have to indemnify or advance expenses to Indemnitee otherwise than
under this Agreement.
|
|
|
(b)
|
Indemnitee
shall not settle any claim or action in any manner which would impose on
the Company any penalty, constraint, or obligation to hold harmless or
indemnify Indemnitee pursuant to this Agreement without the Company's
prior written consent, which consent shall not be unreasonably
withheld.
|
|
14.
|
If
any Claim relating to an Indemnifiable Event, commenced against Indemnitee
is also commenced against the Company, the Company shall be entitled to
participate therein at its own expense, and, except as otherwise provided
hereinbelow, to the extent that it may wish, the Company shall be entitled
to assume the defense thereof. After notice from the Company to
Indemnitee of its election to assume the defense of any Claim, the Company
shall not be obligated 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, travel, and
lodging expenses arising out of Indemnitee's participation in such
Claim. Indemnitee shall have the right to employ Indemnitee's
own counsel in such Claim, but the fees and expenses of such counsel
incurred after notice from the Company to Indemnitee of its assumption of
the defense thereof shall be at the expense of Indemnitee unless (i)
otherwise authorized by the Company, (ii) Indemnitee shall have reasonably
concluded, and so notified the Company, that there may be a conflict of
interest between the Company and Indemnitee in the conduct of the defense
of such Claim, or (iii) the Company shall not in fact have employed
counsel to assume the defense of such Claim, in 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 Claim brought by or on behalf of the Company or its
stockholders or as to which Indemnitee shall have made the conclusion set
forth in (ii) of this Section
14.
|
10
|
15.
|
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.
|
|
16.
|
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 papers required and shall do everything
that may be necessary to secure such rights, including the execution of
such documents necessary to enable the Company effectively to bring suit
to enforce such rights.
|
|
17.
|
The
Company shall not be liable under this Agreement to make any payment in
connection with any claim made against Indemnitee to the extent Indemnitee
has otherwise actually received payment (under any insurance policy,
By-law or otherwise) of the amounts otherwise indemnifiable
hereunder.
|
|
18.
|
This
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors,
assigns, including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs, executors, and personal and
legal representatives. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as an officer or
director of the Company or of any other enterprise at the Company's
request.
|
|
19.
|
The
provisions of this Agreement shall be severable in the event that any of
the provisions hereof (including any provision within a single section,
paragraph or sentence) are held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, and the remaining provisions
shall remain enforceable to the full extent permitted by
law.
|
|
20.
|
This
Agreement shall be governed by and construed in accordance with the laws
of the State of Texas applicable to contracts made and to be performed in
such state, but excluding any conflicts-of-law rule or principle which
might refer such governance, construction or enforcement to the laws of
another state or country.
|
11
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on and as of the day and year first
above written.
THE MINT
LEASING, INC.
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Xxxxx Xxxxxx |
|
|
|
INDEMNITEE
|
||
|
|
/s/ Xxxxxxx Xxxxxxxxx | |
| Xxxxxxx Xxxxxxxxx |
|
|
12
AGREEMENT, effective as of
July 14, 2008, between The Mint Leasing, Inc., a Nevada corporation (the
"Company"), and _Kelley Xxxxxx ("Indemnitee").
WHEREAS, Indemnitee is a
director (or officer) of the Company;
WHEREAS, both the Company and
Indemnitee recognize the increased risk of litigation and other claims being
asserted against directors and officers of public companies at a time when it
has become increasingly difficult to obtain adequate insurance coverage at
reasonable costs;
WHEREAS, in recognition of
Indemnitees need for substantial protection against personal liability in order
to enhance Indemnitees continued service to the Company in an effective manner,
the Company wishes to provide in this Agreement for the identification of and
the advancing of expenses to Indemnitee to the full extent (whether partial or
complete) permitted by law and as set forth in this Agreement, and, to the
extent insurance is maintained, for the continued coverage of Indemnitee under
the Company's directors' and officers' liability insurance policies, regardless
of any future change in the Certificate of Incorporation, By-Laws, composition
of the Board of Directors, or structure of the Company.;
NOW, THEREFORE, in
consideration of the premises and of Indemnitee's service to the Company,
directly or indirectly, and intending to be legally bound hereby, the parties
hereto agree as follows:
|
1.
|
In
the event Indemnitee was, is, or becomes a party to or a witness or other
participant in, or is threatened to be made a party to or a witness or
other participant in, any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether conducted by the
Company or any other party, that Indemnitee in good faith believes might
lead to any such action, suit or proceeding, whether civil, criminal,
administrative, investigative or otherwise (a "Claim") by reason of (or
arising in part out of) the fact that Indemnitee is or was a director,
officer, employee, agent or fiduciary of the Company, or is or was serving
at the request of the Company as a director, officer, employee, trustee,
agent or fiduciary of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, or by reason of anything
done or not done by Indemnitee in any such capacity (an "Indemnifiable
Event"), the Company shall indemnify Indemnitee to the full extent
permitted by law (the determination of which shall be made by the
Reviewing Party referred to below) as soon as practicable but in any event
no later than thirty days after written demand is presented to the
Company, against any and all expenses (including attorneys' fees and all
other costs, expenses, and obligations paid or incurred in connection with
investigating, preparing for and defending or participating in the defense
of (including on appeal) any Claim relating to any Indemnifiable
Event) (collectively "Expenses"), judgments, fines, penalties
and amounts paid in settlement (including all interest, assessments and
other charges paid or payable in connection with or in respect of such
judgments, fines, penalties or amounts paid in settlement) of such Claim
and, if so requested by Indemnitee, the Company shall advance (within two
business days of such request) any and all such Expenses to
Indemnitee; provided, however, that (i) the foregoing
obligation of the Company shall not apply to a Claim that was commenced by
the Indemnitee without the prior approval of the Board of Directors of the
Company unless the Claim was commenced after a Change in Control (as
defined in Section 5 herein); (ii) the foregoing obligation of
the Company shall be subject to the condition that an appropriate person
or body (the "Reviewing Party") shall not have determined (in a written
opinion in any case in which the special, independent counsel referred to
in Section 4 hereof is involved) that Indemnitee would not be permitted to
be indemnified for such Expenses under applicable law; and
(iii) if, when and to the extent that the Reviewing Party determines that
Indemnitee would not be permitted to be indemnified for such Expenses
under applicable law, the Company shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Company) for all such
amounts theretofore paid (unless Indemnitee has commenced legal
proceedings in a court of competent jurisdiction to secure a determination
that Indemnitee should be indemnified under applicable law, in which event
Indemnitee shall not be required to so reimburse the Company until a final
judicial determination requiring such reimbursement is made with respect
thereto as to which all rights of appeal therefrom have been exhausted or
lapsed) and the Company shall not be obligated to indemnify or advance any
additional amounts to Indemnitee under this Agreement (unless there has
been a determination by a court of competent jurisdiction that the
Indemnitee would be permitted to be so indemnified or entitled to such
expense advances under applicable
law).
|
13
|
2.
|
If
there has not been a Change in Control of the Company (as hereinafter
defined), the Reviewing Party shall be (1) quorum of the Board of
Directors consisting of directors who are not parties to the action, suit
or proceeding acting by majority vote, or, (2) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, independent legal counsel by the use of a written opinion or (3)
the stockholders. If there has been a Change in Control of the
Company, the Reviewing Party shall be the special, independent counsel
referred to in Section 4 hereof.
|
|
3.
|
If
Indemnitee has not been indemnified by the expiration of the foregoing
thirty-day period or received expense advances or if the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified or be
entitled to receive expense advances within two days of the request
therefor in whole or in part under applicable law, Indemnitee shall have
the right to commence litigation seeking from the court a finding that
Indemnitee is entitled to indemnification and expense advances or
enforcement of Indemnitee's entitlement to indemnification and expense
advances or challenging any determination by the Reviewing Party or any
aspect thereof that Indemnitee is not entitled to be indemnified or
receive expense advances and the burden of proving that indemnification or
advancement of expenses is not appropriate shall be on the Company; any
determination by the Reviewing Party in favor of Indemnitee shall be
conclusive and binding on the Company, unless facts supplied by Indemnitee
which form the basis for the determination are subsequently determined to
have been materially incorrect at the time supplied. Indemnitee
agrees to bring any such litigation in any court in the States of Texas
having subject matter jurisdiction thereof and in which venue is proper,
and the Company hereby consents to service of process and to appear in any
such proceeding.
|
|
4.
|
The
Company agrees that if there is a Change in Control of the Company (as
hereinafter defined), then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and expense
advances under this Agreement or any other agreement or By-laws now or
hereafter in effect relating to Claims for Indemnifiable Events, the
Company shall seek legal advice only from special, independent counsel
selected by Indemnitee who a majority of the disinterested Directors
approves (which approval shall not be unreasonably withheld), and who has
not otherwise performed services for the Company or
Indemnitee. Such counsel, among other things, shall determine
whether and to what extent Indemnitee is permitted to be indemnified or is
entitled to expense advances under applicable law and shall render its
written opinion to the Company and Indemnitee to such
effect. The Company agrees to pay the reasonable fees of the
special, independent counsel referred to above and to fully indemnify such
counsel against any and all expenses (including attorney's fees), claims,
liabilities and damages arising out of or relating to this Agreement or
its engagement pursuant hereto except for willful misconduct or gross
negligence.
|
|
5.
|
For
purposes of this Agreement, (a) "Change in Control of the Company" shall
be deemed to have occurred if (i) any "person" (as such term is used in
Sections 13(d)(3) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company, is or becomes the beneficial
owner (as defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing 20% or more of the combined
voting power of the Company's then outstanding securities, or (ii) during
any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the stockholders of the Company
approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in
the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least 80% of the combined voting power of the voting
securities of the Company of such surviving entity outstanding immediately
after such merger or consolidation, or if the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for
the sale or disposition by the Company of all or substantially all the
Company's assets.
|
14
|
6.
|
To
the extent Indemnitee is successful in such proceeding, the Company shall
indemnify Indemnitee against any and all expenses (including attorney's
fees) which are incurred by the Indemnitee in connection with any claim
asserted or action brought by Indemnitee for (i) indemnification or
advance payment of Expenses by the Company under this Agreement or any
other agreement or Company By-laws now or hereafter in effect relating to
Claims for Indemnifiable Events and/or (ii) recovery under any directors'
and officers' liability insurance policies maintained by the Company,
regardless of whether Indemnitee ultimately is determined to be entitled
to such indemnification, advance payment of Expenses or insurance
recovery, as the case may be.
|
|
7.
|
If
Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses,
judgments, fines, penalties and amounts paid in settlement of any Claim
but not, however, for all of the total amount thereof, the Company shall
nevertheless 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 the defense of any Claim relating in whole or in
part to any Indemnifiable Event or in defense of any issue or matter
therein, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection
therewith.
|
|
8.
|
For
purposes of this Agreement, the termination of any Claim by judgment,
order, settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere, or its equivalent, shall not create a
presumption that Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has determined that
Indemnitee is not entitled to indemnification or expense advance or that
indemnification or expense advance is not permitted by applicable
law.
|
|
9.
|
The
Company hereby agrees that, so long as Indemnitee shall continue to serve
in a capacity referred to in Section 1 hereof, and thereafter so long as
Indemnitee shall be subject to any possible claim or threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that Indemnitee
served in any capacity referred to in Section 1 hereof, the Company shall
maintain in effect for the benefit of Indemnitee any Directors' and
Officers' Liability Insurance presently in force and effect, providing, in
all respects, coverage at least comparable to that presently provided;
provided, however, if, in the business judgment of the then Board, either
(a) the premium cost for such insurance is substantially disproportionate
to the amount of coverage, or (b) the coverage provided by such insurance
is so limited by exclusions that there is insufficient benefit from such
insurance, then and in that event the Company shall not be required to
maintain such insurance but shall and hereby agrees to the full extent
permitted by law to hold harmless and indemnify Indemnitee to the fullest
extent of the coverage which would otherwise have been provided for the
benefit of Indemnitee.
|
15
|
10.
|
(a)
|
In
the event of any changes after the date of this Agreement in any
applicable law, statute, or rule which expands the right of the Company to
indemnify a person serving in a capacity referred to in Section 1 hereof,
such change shall be within the purview of Indemnitee's rights, and the
Company's obligations, under this Agreement. In the event of
any changes in any applicable law, statute, or rule which narrow the right
of the Company to indemnify a person serving in a capacity referred to in
Section 1 hereof, such changes, to the extent not otherwise required by
such law, statute or rule to be applied to this Agreement, shall have no
effect on this Agreement or the parties' rights and obligations
hereunder.
|
|
|
(b)
|
The
indemnification provided by this Agreement shall not be deemed exclusive
of any rights to which Indemnitee may be entitled under the Company's
Certificate of Incorporation, its By-laws, any agreement, any vote of
stockholders or disinterested directors, laws and regulations in effect
now or in the future, or otherwise, both as to action in Indemnitee's
official capacity and as to action in another capacity while holding such
office.
|
|
11.
|
If
the indemnification provided in Section 1 is unavailable and may not be
paid to Indemnitee because such indemnification is not permitted by law,
then in respect of any threatened, pending or completed action, suit or
proceeding in which the Company is jointly liable with Indemnitee (or
would be if joined in such action, suit or proceeding), the Company shall
contribute to the full extent permitted by law, to the amount of expenses,
judgments, fines (including excise taxes and penalties) and amounts paid
in settlement actually and reasonably incurred and paid or payable by
Indemnitee in such proportion as is appropriate to reflect (i) the
relative benefits received by the Company on the one hand and Indemnitee
on the other hand from the transaction from which such action, suit or
proceeding arose, and (ii) the relative fault of the Company on the one
hand and of Indemnitee on the other in connection with the events which
resulted in such expenses, judgments, fines or settlement amounts, as well
as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of Indemnitee on the other shall
be determined by reference to among other things, the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent the circumstances resulting in such expenses, judgments, fines or
settlement amounts. The Company agrees that it would not be
just and equitable if contribution pursuant to this paragraph were
determined by pro rata allocation or any other method of allocation which
does not take account of the foregoing equitable
considerations.
|
|
12.
|
All
obligations of the Company contained herein shall continue during the
period Indemnitee serves in a capacity referred to in Section 1 hereof of
the Company and shall continue thereafter so long as Indemnitee shall be
subject to any possible Claim relating to an Indemnifiable
Event.
|
|
13.
|
(a)
|
Promptly
after receipt by Indemnitee of notice of the commencement of any Claim
relating to an Indemnifiable Event or proceeding in which Indemnitee is
made or is threatened to be made a party or a witness, Indemnitee shall
notify the Company of the commencement of such Claim; but the omission so
to notify the Company shall not relieve the Company from any obligation it
may have to indemnify or advance expenses to Indemnitee otherwise than
under this Agreement.
|
|
|
(b)
|
Indemnitee
shall not settle any claim or action in any manner which would impose on
the Company any penalty, constraint, or obligation to hold harmless or
indemnify Indemnitee pursuant to this Agreement without the Company's
prior written consent, which consent shall not be unreasonably
withheld.
|
|
14.
|
If
any Claim relating to an Indemnifiable Event, commenced against Indemnitee
is also commenced against the Company, the Company shall be entitled to
participate therein at its own expense, and, except as otherwise provided
hereinbelow, to the extent that it may wish, the Company shall be entitled
to assume the defense thereof. After notice from the Company to
Indemnitee of its election to assume the defense of any Claim, the Company
shall not be obligated 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, travel, and
lodging expenses arising out of Indemnitee's participation in such
Claim. Indemnitee shall have the right to employ Indemnitee's
own counsel in such Claim, but the fees and expenses of such counsel
incurred after notice from the Company to Indemnitee of its assumption of
the defense thereof shall be at the expense of Indemnitee unless (i)
otherwise authorized by the Company, (ii) Indemnitee shall have reasonably
concluded, and so notified the Company, that there may be a conflict of
interest between the Company and Indemnitee in the conduct of the defense
of such Claim, or (iii) the Company shall not in fact have employed
counsel to assume the defense of such Claim, in 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 Claim brought by or on behalf of the Company or its
stockholders or as to which Indemnitee shall have made the conclusion set
forth in (ii) of this Section
14.
|
16
|
15.
|
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.
|
|
16.
|
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 papers required and shall do everything
that may be necessary to secure such rights, including the execution of
such documents necessary to enable the Company effectively to bring suit
to enforce such rights.
|
|
17.
|
The
Company shall not be liable under this Agreement to make any payment in
connection with any claim made against Indemnitee to the extent Indemnitee
has otherwise actually received payment (under any insurance policy,
By-law or otherwise) of the amounts otherwise indemnifiable
hereunder.
|
|
18.
|
This
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors,
assigns, including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs, executors, and personal and
legal representatives. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as an officer or
director of the Company or of any other enterprise at the Company's
request.
|
|
19.
|
The
provisions of this Agreement shall be severable in the event that any of
the provisions hereof (including any provision within a single section,
paragraph or sentence) are held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, and the remaining provisions
shall remain enforceable to the full extent permitted by
law.
|
|
20.
|
This
Agreement shall be governed by and construed in accordance with the laws
of the State of Texas applicable to contracts made and to be performed in
such state, but excluding any conflicts-of-law rule or principle which
might refer such governance, construction or enforcement to the laws of
another state or country.
|
17
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on and as of the day and year first
above written.
THE MINT
LEASING, INC.
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Xxxxx
Xxxxxx
|
||
|
INDEMNITEE
|
||
|
/s/ Xxxxxx Xxxxxx
|
||
|
Xxxxxx
Xxxxxx
|
||
18
