EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into this ____ day of
___________, ______ between Xxxxxxx Holdings, Inc., a Delaware corporation (the
"Company") and _________________ ("Indemnitee").
WITNESSETH THAT:
WHEREAS, Indemnitee performs a valuable service for the Company,
and
WHEREAS, the Board of Directors of the Company has adopted Bylaws
(the "Bylaws") providing for the indemnification of the directors of the Company
to the maximum extent authorized by the Delaware General Corporation Law as
amended ("Law"); and
WHEREAS, such Bylaws and the Law by their nonexclusive nature
permit contracts between the Company and the directors and officers of the
Company with respect to indemnification of such directors and officers; and
WHEREAS, in accordance with the authorization as provided by the
Law, the Company may purchase and maintain a policy or policies of director's
and officer's liability insurance ("D & O Insurance"), covering certain
liabilities which may be incurred by its directors and officers in their
performance as directors and officers of the Company, and
WHEREAS, as a result of recent developments affecting the
terms, scope and availability of D & O Insurance, there exists general
uncertainty as to the extent of protection afforded Company directors and
officers by such D & O Insurance and by statutory and bylaw indemnification
provisions; and
WHEREAS, in order to induce Indemnitee to continue to serve as a
director or officer of the Company, the Company has determined and agreed to
enter into this contract with Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee's continued
service as a director or officer after the date hereof, the parties hereto agree
as follows:
1. INDEMNITY OF INDEMNITEE. The Company hereby agrees to hold
harmless and indemnify Indemnitee to the full extent authorized or permitted by
the provisions of the Law, as may be amended from time to time.
2. ADDITIONAL INDEMNITY. Subject only to the exclusions set
forth in Section 3 hereof, the Company hereby further agrees to hold harmless
and indemnify Indemnitee:
A. Against any and all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by Indemnitee in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including an action on behalf of the Company but excluding an
action by the Company) to which Indemnitee is, was or at any time becomes a
party, or is threatened to be made a party, by reason of the fact that
Indemnitee is, was or at any time becomes a director, officer, employee or
agent of the Company, or is or was serving or at any time serves at the
request of the Company as a director, officer, employee or agent of another
company, partnership, joint venture, trust or other enterprise; PROVIDED,
HOWEVER, that with respect to actions on behalf of the Company,
indemnification of Indemnitee against any judgments shall be made by the
Company only as authorized in the specific case upon a determination that
Indemnitee acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company, such determination to
be made (i) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding, (ii) if such a quorum is not obtainable, or, even if obtainable
and a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the stockholders; and
B. Otherwise to the full extent as may be provided to
Indemnitee by the Company under the nonexclusivity provisions of Article 5 of
the Bylaws of the Company and of the Law.
3. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant
to Section 2 hereof shall be paid by the Company:
A. In respect to remuneration paid to Indemnitee if it
shall be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
B. On account of any suit in which judgment is rendered
against Indemnitee 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 and amendments thereto or similar
provisions of any federal, state or local statutory law;
C. On account of Indemnitee's conduct which is finally
adjudged to have been knowingly fraudulent or deliberately dishonest, or to
constitute willful misconduct;
D. On account of any proceeding (other than a proceeding
referred to in Section 8.B hereof) initiated by the Indemnitee unless such
proceeding was authorized by the directors of the Company; or
E. If a final decision by a court having jurisdiction in
the matter shall determine that such indemnification is not lawful.
4. CONTRIBUTION. If the indemnification provided in Sections
1 and 2 is unavailable and may not be paid to Indemnitee for any reason other
than those set forth in paragraphs A, B, C and D of Section 3, then with
respect to 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 amount
of expenses (including attorneys' fees), judgments, fines 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 by the
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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 the Indemnitee on the other hand 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 the Indemnitee on the other hand 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
Section 4 were determined by pro rata allocation or any other method of
allocation which does not take account of the foregoing equitable
considerations.
5. CONTINUATION OF OBLIGATIONS. All agreements and obligations
of the Company contained herein shall continue during the period Indemnitee is a
director, officer, employee or agent of the Company (or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise) and shall
continue thereafter so long as Indemnitee 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 Indemnitee was a director
or officer of the Company or serving in any other capacity referred to herein.
6. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt
by indemnitee of notice of the commencement of any action, suit or
proceeding, Indemnitee must, if a claim in respect thereof is to be made
against the Company under this Agreement, notify the Company of the
commencement thereof. Indemnitee's omission to so notify the Company will
relieve the Company from any liability which it may have to Indemnitee under
this Agreement. However, such omission will not relieve the Company from any
obligation it may have to Indemnitee other than under this Agreement.
With respect to any such action, suit or proceeding as to which
Indemnitee notifies the Company of the commencement thereof:
A. The Company will be entitled to participate therein at
its own expense;
B. Except as otherwise provided below, to the extent that
it may wish, the Company, jointly with any other indemnifying party similarly
notified, will be entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. After notice from the Company to Indemnitee of the
Company's election to assume the defense as provided above, the Company will not
be liable to Indemnitee under this Agreement for any legal or other expenses
subsequently incurred by Indemnitee in connection with the defense thereof,
other than reasonable costs of investigation or as otherwise provided below.
Indemnitee shall have the right to employ counsel in such action, suit or
proceeding, but the fees and expenses of such counsel incurred after notice from
the Company of its assumption of the defense thereof shall be at the expense of
Indemnitee unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee in the
conduct of the defense of such action or (iii) the Company shall not in fact
have employed counsel to assume the defense of such action,
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in each of which cases the fees and expenses of counsel shall be at the expense
of the Company. The Company shall not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of the Company or as to which
Indemnitee shall have made the conclusion provided for in (ii) above; and
C. The Company shall not be liable to indemnify Indemnitee
under this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company shall not settle any action or
claim in any manner which would impose any penalty or limitation on Indemnitee
without Indemnitee's written consent. Neither the Company nor Indemnitee will
unreasonably withhold its consent to any proposed settlement.
7. ADVANCEMENT AND REPAYMENT OF EXPENSES.
A. In the event that Indemnitee employs his own counsel
pursuant to Section 6.B.(i) through (iii) above, the Company shall pay in
advance, prior to any final disposition of any threatened or pending action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by the Company), any and all reasonable expenses
(including legal fees and expenses) incurred in investigating or defending any
such action, suit or proceeding within ten (10) days after receiving from
Indemnitee copies of invoices for such expenses.
B. Indemnitee agrees that he will repay the Company for
all expenses so advanced by the Company in defending any civil or criminal
action, suit or proceeding against Indemnitee in the event and only to the
extent it shall be ultimately determined that Indemnitee is not entitled, under
the provisions of the Law, the Bylaws, this Agreement or otherwise, to be
indemnified by the Company for such expenses.
8. ENFORCEMENT.
A. The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on the Company
hereby in order to induce Indemnitee to continue as a director or officer of the
Company, and acknowledges that Indemnitee is relying upon this Agreement in
continuing in such capacity.
B. In the event Indemnitee is required to bring any action
to enforce rights or to collect moneys due under this Agreement and is
successful in such action, the Company shall reimburse Indemnitee for all of
Indemnitee's reasonable fees and expenses in bringing and pursuing such action.
9. SEPARABILITY. Each of the provisions of this Agreement is
a separate and distinct agreement, 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.
10. GOVERNING LAW. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Delaware.
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11. BINDING EFFECT. This Agreement shall be binding upon
Indemnitee and upon the Company, its successors and assigns, and shall inure to
the benefit of Indemnitee, his heirs, personal representatives and assigns and
to the benefit of the Company, its successors and assigns.
12. AMENDMENT AND TERMINATION. No amendment, modification,
termination or cancellation of this Agreement shall be effective unless in
writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
XXXXXXX HOLDINGS, INC.
By:
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Name:
Title:
By:
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[ ], Indemnitee
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