Exhibit 10.171
MEADOW VALLEY CORPORATION AND
MEADOW VALLEY CONTRACTORS, INC. AND
READY MIX, INC.
OFFICER/DIRECTOR INDEMNIFICATION AGREEMENT
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THIS AGREEMENT ("Agreement") is entered into and effective this 5th day of
March, 2002, by and between Meadow Valley Corporation and Meadow Valley
Contractors, Inc., and Ready Mix, Inc., Nevada corporations ("Corporation(s)"),
and Xxxxxx X. Xxxxx ("Indemnified Party").
WHEREAS, the Boards of Directors of the Corporations have determined that
it is in the best interest of each respective Corporation and its shareholders
to agree to indemnify Indemnified Party (who is a Director and/or Officer of the
Corporation) from and against certain liabilities for actions taken by him/her
during the performance of his/her tasks for the Corporation.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Indemnification. The Corporation hereby agrees to indemnify and hold
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harmless Indemnified Party to the maximum extent possible under all applicable
laws against any and all claims, demands, debts, duties, liabilities, judgments,
fines and amounts paid in settlement and expenses (including attorneys' fees and
expenses) actually and reasonably incurred by Indemnified Party in connection
with the investigation, defense, negotiation and settlement of any such claim or
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including any action by or in the
right of any of the Corporations) to which Indemnified Party is or becomes a
party, or is threatened to be made a party, by reason of the fact that
Indemnified Party is an officer or a director of the Corporation or any of its
subsidiaries.
2. Limitations on Indemnity. No indemnity pursuant to this Agreement
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shall be made by the Corporation:
(a) For the amount of such losses for which the Indemnified Party is
indemnified pursuant to any insurance purchased and maintained by the
Corporation; or
(b) In respect to remuneration paid to Indemnified Party if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law; or
(c) On account of any suit in which judgment is rendered against
Indemnified Party for an accounting of profits made (i) for an
improper personal profit without full and fair disclosure to the
Corporation of all material conflicts of interest and not approved
thereof by a majority of the disinterested members of the Board of
Directors of the Corporation; or (ii) from the
purchase or sale by Indemnified Party of securities of the Corporation
pursuant to the provisions of Section 16(b) of the Securities Exchange
Act of 1934 and amendments thereto or similar provisions of any
federal, state or local law; or
(d) On account of Indemnified Party's conduct which is finally determined
to have been knowingly fraudulent, deliberately dishonest or willfully
in violation of applicable law for which the corporation suffered
actual financial damages; or
(e) If a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
3. Continuation of Indemnity. All agreements and obligations of the
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Corporation contained herein shall continue during the period Indemnified Party
is an officer or director of the Corporation or a subsidiary and thereafter so
long as Indemnified Party shall be subject to any possible claim or threatened,
pending or completed action, suit or proceeding, whether civil, criminal or
investigative, by reason of the fact that Indemnified Party was an officer or a
director of the Corporation or any subsidiary.
4. Notification and Defense of Claim. Within 30 days after receipt by
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Indemnified Party of notice of any claim or any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, in which Indemnified Party has a right to Indemnification
hereunder, Indemnified Party will notify the Corporation of the commencement
thereof. With respect to any such action, suit or proceeding as to which
Indemnified Party notifies the Corporation of the commencement thereof:
(a) The Corporation will be entitled to participate therein at its own
expense; and
(b) Except as otherwise provided below, to the extent that it may wish,
the Corporation jointly with any other indemnifying party will be
entitled to assume the defense thereof, with counsel satisfactory to
Indemnified Party. After notice from the Corporation to Indemnified
Party of its election to assume the defense thereof, the Corporation
will not be liable to Indemnified Party under this Agreement for any
legal or other expenses subsequently incurred by Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation nor as otherwise provided below. Indemnified Party shall
have the right to employ counsel in such action, suit or proceeding,
but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof shall be at
the expense of Indemnified Party, unless (i) the employment of counsel
by Indemnified Party has been authorized by the Corporation, (ii)
Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between the Corporation and Indemnified Party in
the conduct of the defense of such action, (iii) the Corporation shall
not in fact have employed counsel to assume the defense
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of such action, in each of which cases the fees and expenses of
counsel shall be at the expense of the Corporation, or (iv) unless the
Indemnified Party reasonably and in good faith asserts defenses and
theories of defense not asserted by the Corporation. The Corporation
shall not be entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of the Corporation or as to which
Indemnified Party shall have made the conclusion provided for in (ii)
or (iv) above.
(c) The Corporation shall not be liable to indemnify Indemnified Party
under this Agreement for any amounts paid in settlement of any action
or claim effected without the Corporation's written consent. The
Corporation shall not settle any action or claim in any manner which
would impose any penalty or limitation on Indemnified Party without
Indemnified Party's written consent. Neither the Corporation or
Indemnified Party will unreasonably withhold their consent to any
proposed settlement.
5. Repayment of Expenses. Indemnified Party agrees that Indemnified Party
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will reimburse the Corporation for all reasonable expenses paid by the
Corporation in defending any civil or criminal action, suit or proceeding
against Indemnified Party in the event and only to the extent that Indemnified
Party is finally determined that Indemnified Party is not entitled to be
indemnified by the Corporation for such expenses under the Corporation's charter
or bylaws, this Agreement or under applicable law.
6. Enforcement.
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(a) The Corporation expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on the Corporation
hereby in order to induce Indemnified Party to serve as an officer
and/or director of the Corporation or any subsidiary thereof, and
acknowledges that Indemnified Party is relying upon this Agreement as
part of the consideration for so acting.
(b) In the event Indemnified Party is required to bring any action to
enforce rights or to collect moneys due under this Agreement and is
successful in such action, the Corporation shall reimburse Indemnified
Party for all of Indemnified Party's reasonable attorneys' and other
fees and expenses in bringing and pursuing such action.
7. SEVERABILITY. Each of the provisions of this agreement is a separate
and 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.
8. Governing Law; Binding Effect; Amendment and Termination.
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(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Arizona.
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(b) This Agreement shall be binding upon Indemnified Party and upon the
Corporation, its successors and assigns, and shall inure to the
benefit of Indemnified Party, his heirs, personal representatives and
assigns and to the benefit of the Corporation, its successors and
assigns.
(c) No amendment, modification, termination or change of this Agreement
shall be effective unless it is signed by both parties hereto.
9. Additional Rights. This Agreement is in addition to, and not in lieu
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of, any other right to indemnification under the Corporation's corporate
charter, bylaws, insurance contracts or otherwise at law or in equity.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
MEADOW VALLEY CORPORATION AND
MEADOW VALLEY CONTRACTORS, INC.
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer
READY MIX, INC.
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, Executive Vice
President
Indemnified Party:
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
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