OFFICERS AND DIRECTORS INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is
made as of ______________________, by and between
International Game Technology, a Nevada corporation (the
"Corporation"), and _____________________ (the
"Indemnitee"), an officer and/or director of the
Corporation.
RECITALS
A. The Indemnitee is currently serving or has agreed
to serve as an officer and/or director of the Corporation
and in such capacity as rendered or will render valuable
services to the Corporation.
B. The Corporation has investigated the availability
and sufficiency of liability insurance and Nevada 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 position with the Corporation 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 an officer and/or director of the
Corporation, the Board of Directors has determined, after
due consideration and investigations of the terms and
provisions of this Agreement and the various other options
available to the Corporation and the Indemnitee in lieu
hereof, that this Agreement is reasonable and prudent and in
the best interests of the Corporation and its stockholders.
AGREEMENT
NOW, THEREFORE, in consideration of the continued
services of the Indemnitee and in order to induce the
Indemnitee to continue to serve as an officer and/or
director, the Corporation and the Indemnitee do hereby agree
as follows:
1. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any
threatened, pending or completed action, suit or proceeding,
whether brought in the name of the Corporation or otherwise
and whether of a civil, criminal or administrative or
investigative nature, by reason of the fact that the
Indemnitee is or was an officer and/or director of the
Corporation, or is or was serving at the request of the
Corporation as an officer and/or director, employee or agent
of another enterprise, whether or not he or she is serving
in such capacity at the time and liability or expense is
incurred for which indemnification or reimbursement is to
be provided under this Agreement.
(b) The term "Expense" includes, without
limitation, attorneys' fees, disbursements and retainers,
accounting and witness fees, travel and deposition costs,
expenses of investigations, judicial or administrative
proceedings or 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 otherwise compensated by
the Corporation 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 an officer and/or director of the
Corporation at the will of the Corporation for so long as
the Indemnitee is duly elected or appointed or until such
time as the Indemnitee tenders his or her resignation in
writing.
3. Indemnification in Third Party Actions. The
Corporation shall indemnify 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 otherwise
involved in any Proceeding (other than a Proceeding by or in
the name of the Corporation to procure a judgment in its
favor), by reason of the fact that the Indemnitee is or was
an officer and/or director of the Corporation, or is or was
serving at the request of the Corporation as an officer
and/or director, 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 Proceeding, to the fullest extent permitted by Nevada
law; provided that any settlement be approved in writing by
the Corporation.
4. Indemnification in Proceedings or by in the name
of the Corporation. The Corporation shall indemnify 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 otherwise involved in any Proceeding by or in
the name of the Corporation to procure a judgment in its
favor by reason of the fact that the Indemnitee was or is in
officer and/or director of the Corporation, or is or was
serving at the request of the Corporation as an officer
and/or director, 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 Proceeding, to the fullest extent permitted by Nevada
law.
5. Conclusive Presumption Regarding Standard of
Conduct. The Indemnitee shall be conclusively presumed to
have met the relevant standards of conduct as defined by
Nevada law for indemnification pursuant to this Agreement,
unless a determination is made that the Indemnitee has not
met such standards by (i) the Board of Directors of the
Corporation by a majority vote of a quorum thereof
consisting of directors who were not parties to the
Proceeding which gives rise to claim made under this
Agreement, (ii) by the stockholders of the Corporation by
majority vote of a quorum thereof consisting of stockholders
who are not parties to the Proceeding which gives rise to
claim made under this Agreement, or (iii) in a written
opinion by independent legal counsel, selection of whom has
been approved by Indemnitee in writing.
6. Indemnification of Expenses of Successful Party.
Notwithstanding any 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
Nevada law.
7. Advances of Expenses. The Expenses incurred by
the Indemnitee in any Proceeding shall be paid promptly by
the Corporation in advance of the final disposition of the
Proceeding at the written request of the Indemnitee to the
fullest extent permitted by Nevada law; provided that as
long as Nevada law requires such an undertaking, the
Indemnitee shall undertake in writing to repay such amount
to the extent that it is ultimately determined that the
Indemnitee is not entitled to indemnification.
Notwithstanding the foregoing or any other provision of this
Agreement, no advance shall be made by the Corporation if a
determination is reasonably and promptly made by the Board
of Directors by a majority vote of a quorum thereof
consisting of directors who are not parties tot he
Proceeding, based upon the facts known to the Board at the
time such determination is made, that the Indemnitee acted
in bad faith or deliberately breached his duty to the
Corporation and the stockholders, and as a result of such
action by the Indemnitee, it is more likely than not it will
ultimately be determined that the Indemnitee is not entitled
to indemnification under the terms of this Agreement.
8. Partial Indemnification. If the Indemnitee is
entitled under any provision of this Agreement to
indemnification by the Corporation for some or 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 Corporation shall nevertheless indemnify the Indemnitee
for the portion of such Expenses, judgment, fines, penalties
or ERISA excise taxes to which the Indemnitee is entitled.
9. Indemnification Procedure; Determination of Right
to Indemnification.
(a) Promptly after receipt by the Indemnitee of
notice of the commencement of any Proceeding, the Indemnitee
will, if a claim in respect thereof is to be made against
the Corporation under this Agreement, notify the Corporation
of the commencement thereof. The omission so to notify the
Corporation will not relieve it from any liability which it
may have to the Indemnitee otherwise than under this
Agreement.
(b) If a claim under this Agreement is not paid
by the Corporation within thirty (30) days of receipt of
written notice, the right to indemnification as 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 Corporation.
Neither the failure of the directors or stockholders of the
Corporation 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 Corporation or it independent legal
counsel that the Indemnitee has not met such 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 or her right
to indemnification or advances in whole or in part pursuant
to this Agreement shall also be indemnified by the
Corporation regardless of the outcome of such Proceeding,
unless a court of competent jurisdiction determines that
each of the material assertions made by the Indemnitee in
such Proceeding was not made in good faith or was frivolous.
(d) With respect to any Proceeding for which
indemnification is requested, the Corporation will be
entitled to participate therein at its own expense and,
except as otherwise provided below, to the extent that it
may wish, the Corporation may assume the defense thereof,
with counsel satisfactory to the Indemnitee. After notice
from the Corporation to the Indemnitee of its election to
assume the defense of a Proceeding, the Corporation will not
be liable to the Indemnitee under this Agreement for any
legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense thereof, other
than reasonable costs of investigation or as otherwise
provided below. The Corporation 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 own counsel in any 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 the Indemnitee, unless (i) the
employment of counsel by the Indemnitee has been authorized
by the Corporation, (ii) the Indemnitee shall have
reasonably concluded that there may be a conflict of
interest between the Corporation and the Indemnitee in the
conduct of the defense of a Proceeding; or (iii) the
Corporation 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
at the expense of the Corporation. The Corporation shall
not be entitled to assume the defense of any Proceeding
brought by or on behalf of the Corporation or as to which
the Indemnitee has made the conclusion that there may be a
conflict of interest between the Corporation and the
Indemnitee.
10. Limitations on Indemnification. No payments
pursuant to this Agreement shall be made by the Corporation:
(a) To indemnify or advance Expenses to the
Indemnitee 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
Nevada law, but such indemnification or advancement of
Expenses may be provided by the Corporation in specific
cases if the Board of Directors finds it to be appropriate;
(b) To indemnify the Indemnitee for any Expenses,
judgments, fines, penalties or ERISA excise taxes 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 policy;
(c) To indemnify the Indemnitee for any Expenses,
judgments, fines or penalties sustained in any Proceeding
for an accounting of profits made from the purchase or sale
by the Indemnitee of securities of the Corporation 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,
judgments, 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 shall
finally determine that any indemnification hereunder is
lawful.
11. Maintenance of Liability Insurance.
(a) The Corporation hereby covenants and agrees
that, as long as the Indemnitee shall continue to serve as
an officer and or director of the Corporation and thereafter
so long as the Indemnitee shall be subject to any possible
Proceeding, the Corporation, subject to subsection (c),
shall promptly obtain and maintain in full force and effect
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
any other director or officer of the Corporation.
(c) Notwithstanding the foregoing, the
Corporation shall have no obligation to obtain or maintain
D&O Insurance if the Corporation determines in good faith
that such insurance is not reasonably available, the premium
costs for such insurance
are, in the opinion of the
Corporation, 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 Corporation.
12. Indemnification Hereunder Not Exclusive. The
indemnification provided by this Agreement shall not be
deemed exclusive of any other rights to which the Indemnitee
may be entitled under the Articles of Incorporation, the
Bylaws, any other agreement, any vote of stockholders or
disinterested directors, Nevada law, or otherwise, both as
to action in his official capacity and as to action in
another capacity on behalf of the Corporation while holding
such office.
13. Successors and Assigns. This Agreement shall be
binding upon and shall enure to the benefit of the
Indemnitee and his heirs, personal representatives and
assigns, and the Corporation and its successors and assigns.
14. Separability. Each provision 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 any other provision 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 Nevada law.
15. Savings Clause. If this Agreement or any portion
hereof shall be invalidated on any ground by any court of
competent jurisdiction, the Corporation shall nevertheless
indemnify the Indemnitee as to Expenses, judgments, fines,
penalties or ERISA excise taxes with respect to any
Proceeding to the full extent permitted by any applicable
portion of this Agreement that shall not have been
invalidated or by any applicable provision of Nevada law.
16. Interpretation; Governing Law. This Agreement
shall be construed as a whole and in accordance with its
fair meaning. Headings are for convenience only and shall
not be used in interpreting the provisions hereunder. This
Agreement shall be governed by and interpreted in accordance
with the laws of the State of Nevada.
17. Amendments. No amendment, waiver, modification,
termination or 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 Corporation's Articles of Incorporation, Bylaws or
other agreements, including D&O Insurance policies.
18. Counterparts. This Agreement may be executed in
one or more 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 be directed to International Game
Technology, 0000 Xxxx Xxxx, Xxxx, XX 00000, Attention:
President, and to Indemnitee
at:__________________________________________ or to such
other address as either shall designate in writing.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
INTERNATIONAL GAME TECHNOLOGY INDEMNITEE
By:_________________________ _____________________________
Its:________________________
