Exhibit 10.48
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as of this 29th
day of January, 1999, by and between Harveys Acquisition Corporation, a Nevada
corporation (the "Company"), and Xxxxxx X. Xxxxx ("Indemnitee").
WHEREAS, the Company and Indemnitee recognize the difficulty in obtaining
directors' and officers' liability insurance, the substantial cost of such
insurance and the limitations in the coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the substantial level
of corporate litigation in general, subjecting officers, directors and key
employees to expensive litigation risks while the availability and coverage of
liability insurance is severely limited;
WHEREAS, the Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve as officers, directors and
key employees of the Company and to indemnify its officers, directors and key
employees so as to provide them with the maximum protection permitted by law.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the Company and Indemnitee hereby agree as follows:
Section 1. INDEMNIFICATION.
(a) THIRD PARTY PROCEEDINGS. The Company shall indemnify Indemnitee to
the fullest extent permitted by law if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, or investigative
(other than an action by or in the right of the Company), by reason of the fact
that Indemnitee, or a person of whom Indemnitee is the legal representative, is
or was a director, officer, employee or agent of the Company or any subsidiary
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 against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by Indemnitee in connection with the action, suit or proceeding if Indemnitee
acted in good faith and in a manner which Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that Indemnitee's conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, does not, of itself, create a
presumption that Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company, and that, with respect to any criminal action or proceeding,
Indemnitee had reasonable cause to believe that Indemnitee's conduct was
unlawful.
(b) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The Company shall
indemnify Indemnitee to the fullest extent permitted by law if Indemnitee was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to procure a judgment
in its favor by reason of the fact that Indemnitee, or a person of whom
Indemnitee is the legal representative, is or was 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 against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of the action or suit if Indemnitee
acted in good faith and in a manner in which Indemnitee reasonably believed to
be in or not opposed to the best interests of the Company. Indemnification may
not be made for any claim, issue or matter as to which Indemnitee has been
adjudged by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the Company or for amounts paid in settlement to the
Company, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
Section 2. EXPENSES; INDEMNIFICATION PROCEDURE.
(a) ADVANCEMENT OF EXPENSES. The Company shall advance all expenses
incurred by Indemnitee in connection with the investigation, defense, settlement
or appeal of any civil or criminal action or proceeding referenced in Section
1(a) or (b) hereof (but not amounts actually paid in settlement of any such
action or proceeding) and to the extent consistent with the Restated Articles of
Incorporation and Bylaws of the Company. Indemnitee hereby undertakes to repay
such amounts advanced if, and to the extent that, it shall ultimately be
determined by a court of competent jurisdiction that Indemnitee is not entitled
to be indemnified by
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the Company as authorized hereby. The advances to be made hereunder shall be
paid by the Company to Indemnitee within twenty (20) days following delivery of
a written request therefor by Indemnitee to the Company.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition
precedent to Indemnitee's right to be indemnified under this Agreement, give the
Company notice in writing as soon as practicable of any claim made against
Indemnitee for which indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to the President or Chief
Executive Officer of the Company, with a copy to the Company's general counsel,
at the addresses shown on the signature page of this Agreement (or such other
address as the Company shall designate in writing to Indemnitee). Notice shall
be deemed received three business days after the date postmarked if sent by
domestic, certified or registered mail, properly addressed; otherwise notice
shall be deemed received when such notice shall actually be received by said
parties. In addition, Indemnitee shall give the Company such information and
cooperation as it may reasonably require as shall be within Indemnitee's power.
(c) PROCEDURE. Any indemnification provided for in Section 1 shall be
made no later than forty-five (45) days after receipt of the written request of
Indemnitee. If a claim under this Agreement, under any statute or under any
provision of the Company's Restated Articles of Incorporation or Bylaws
providing for indemnification is not paid in full by the Company within
forty-five (45) days after a written request for payment therefor has first been
received by the Company, then Indemnitee may, but need not, at any time
thereafter bring an action against the Company to recover the unpaid amount of
the claim and, subject to Section 14 of this Agreement, Indemnitee shall also be
entitled to be paid for the expenses (including attorneys' fees) of bringing
such action. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in connection with any action
or proceeding in advance of its final disposition) that Indemnitee has not met
the standards of conduct which make it permissible under applicable law or this
Agreement for the Company to indemnify Indemnitee for the amount claimed, but
the burden of proving such defense shall be on the Company, and Indemnitee shall
be entitled to receive interim payments of expenses pursuant to Subsection 3(a)
unless and until such defense may be finally adjudicated by court order or
judgment from which no further right of appeal exists. It is the parties
intention that if the Company contests Indemnitee's right to indemnification,
neither the failure of the Company (including its Board of Directors, any
committee or subgroup of its Board of Directors, its independent legal counsel
or its shareholders) to have made a
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determination that indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct required by the
applicable law or this Agreement, nor an actual determination by the Company
(its Board of Directors, any committee or subgroup, its Board of Directors, its
independent legal counsel or its shareholders) that Indemnitee has not met such
applicable standard of conduct, shall create a presumption that Indemnitee has
or has not met the applicable standard of conduct.
(d) NOTICE TO INSURERS. If, at the time of the receipt of a notice of
a claim pursuant to section 3(b) hereof, the Company has director and officer
liability insurance in effect, then the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or appropriate action to cause such insurers to pay, on
behalf of Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
(e) SELECTION OF COUNSEL. If the Company shall be obligated under
Section 3(a) hereof to pay the expenses of any proceeding against Indemnitee,
then the Company, if appropriate, shall be entitled to assume the defense of
such proceeding, with counsel approved by Indemnitee, which approval shall not
be unreasonably withheld, upon the delivery to Indemnitee of written notice of
its election so to do. After delivery of such notice, approval of such counsel
by Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same proceeding,
provided, that (i) Indemnitee shall have the right to employ Indemnitee's
counsel in any such proceeding at Indemnitee's expense; and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized by the
Company, (B) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and Indemnitee in the conduct of any
such defense or (C) the Company shall not have employed counsel to assume the
defense of such proceeding, then the fees and expenses of Indemnitee's counsel
shall be at the expense of the Company.
Section 3. ADDITIONAL INDEMNIFICATION OF RIGHTS; NONEXCLUSIVITY.
(a) SCOPE. Notwithstanding any other provision of this Agreement, the
Company hereby agrees to indemnify Indemnitee to the fullest extent permitted by
law, notwithstanding that such indemnification is not specifically authorized by
the other provisions of this Agreement, the Company's Restated
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Articles of Incorporation or the Company's Bylaws. In the event of any change,
after the date of this Agreement, in any applicable law, statute or rule which
expands the right of a Nevada corporation to indemnify a member of its board of
directors or an officer, such changes shall be, ipso facto, within the purview
of Indemnitee's rights and Company's obligations, under this Agreement. In the
event of any change in any applicable law, statute or rule which limits or
narrows the indemnification rights or the rights to advancement of expenses
which a Nevada corporation may provide to the members of its board of directors
or officers, the rights to indemnification and to the advancement of expenses
provided in the Company's Restated Articles of Incorporation, the Company's
Bylaws and this Agreement shall continue as theretofore to the extent permitted
by law.
(b) NONEXCLUSIVITY. The indemnification provided by this Agreement
shall not be deemed exclusive of any rights to which Indemnitee may be entitled
under the Company's Restated Articles of Incorporation, its Bylaws, any
agreement, any vote of shareholders or disinterested directors, Nevada Revised
Statutes Chapter 78 (hereinafter the "Private Corporation Law of Nevada") or
otherwise, both as to action in Indemnitee's official capacity and as to action
in another capacity while holding such office. The indemnification provided
under this Agreement shall continue as to the Indemnitee for any action taken or
not taken while serving in an indemnified capacity even though Indemnitee may
have ceased to serve in such capacity at the time of any action or other covered
proceeding.
Section 4. PARTIAL INDEMNIFICATION.
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 actually or reasonably incurred by Indemnitee on
investigation, defense, appeal or settlement of any civil or criminal action or
proceeding, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of such expenses, judgments,
fines or penalties to which Indemnitee is entitled.
Section 5. MUTUAL ACKNOWLEDGMENT.
Both the Company and Indemnitee acknowledge that in certain instances,
federal law or applicable public policy may prohibit the Company from
indemnifying its directors and officers under this Agreement or otherwise.
Indemnitee understands and acknowledges that the Company has undertaken or
may be required in the
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future to undertake with the Securities and Exchange Commission to submit the
question of indemnification to a court in certain circumstances for a
determination of the Company's right under public policy to indemnify
Indemnitee.
Section 6. DIRECTORS' AND OFFICERS' LIABILITY INSURANCE.
The Company shall, from time to time, make the good faith determination
whether or not it is practicable for the Company to obtain and maintain a policy
or policies of insurance with reputable insurance companies providing the
officers and directors of the Company with coverage for losses from wrongful
acts, or to ensure the Company's performance of its indemnification obligations
under this Agreement. Among other considerations, the Company will weigh the
costs of obtaining such insurance coverage against the protection afforded by
such coverage. Notwithstanding the foregoing, the Company shall have no
obligation to obtain or maintain such insurance if the Company determines in
good faith that such insurance is not reasonably available, if the premium costs
for such insurance are disproportionate to the amount of coverage provided, if
the coverage provided by such insurance is limited by exclusions so as to
provide an insufficient benefit or if Indemnitee is covered by similar insurance
maintained by a subsidiary or parent of the Company.
Section 7. SEVERABILITY.
Nothing in this Agreement is intended to require or shall be construed as
requiring the Company to do or fail to do any act in violation of applicable
law. The Company's inability, pursuant to court order, to perform its
obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable as provided in
this Section 8. If this Agreement or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement shall not have been so invalidated and the balance of this
Agreement not so invalidated shall be enforceable in accordance with its terms.
Section 8. EXCEPTIONS.
Any other provision herein to the contrary notwithstanding, the Company
shall not be obligated pursuant to the terms of this Agreement:
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(a) EXCLUDED ACTS. To indemnify Indemnitee for any acts or omissions
or transactions from which a director or officer may not be relieved of
liability under the Private Corporation Law of Nevada;
(b) CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance expenses
to Indemnitee with respect to proceedings or claims initiated or brought
voluntarily by 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
Section 78.751 of the Private Corporation Law of Nevada or the Restated Articles
of Incorporation or Bylaws of the Company, but such indemnification or
advancement of expenses may be provided by the Company in specific cases if the
Board of Directors has approved the initiation or bringing of such suit;
(c) LACK OF GOOD FAITH. To indemnify Indemnitee for any expenses
incurred by Indemnitee with respect to any proceedings instituted by Indemnitee
to enforce or interpret this Agreement, if a court of competent jurisdiction
determines that each of the material assertions made by Indemnitee in such
proceeding was not made in good faith or was frivolous;
(d) INSURED CLAIMS. To indemnify Indemnitee for expenses or
liabilities of any type whatsoever (including judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) which have been paid directly
to Indemnitee by an insurance carrier under a policy of director and officer
liability insurance maintained by the Company; or
(e) CLAIMS UNDER SECTION 16(b). To indemnify Indemnitee for expenses
and the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute.
Section 9. EFFECTIVENESS OF AGREEMENT.
This Agreement shall be effective as of the date set forth on the first
page and may apply to acts or omissions of Indemnitee which occurred prior to
such date if Indemnitee was an officer, director, employee or other agent of the
Company, 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 at the time such act or omission occurred.
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Section 10. CONSTRUCTION OF CERTAIN PHRASES.
(a) For purposes of this Agreement, references to "Company" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents, so that if
Indemnitee is or was a director, officer, employee, or agent of such constituent
corporation or is or was serving at the request of such constituent corporation
as a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust or other enterprise, then Indemnitee shall stand in the
same position under the provisions of this Agreement with respect to the
resulting or surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on Indemnitee with respect to an employee benefit plan;
and references to "serving at the request of the Company" shall include any
service as a director, officer, employee or agent of the Company which imposes
duties on, or involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or its beneficiaries.
Section 11. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall constitute an original, and all of which shall constitute one and the same
agreement.
Section 12. SUCCESSORS AND ASSIGNS.
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, and personal and legal representatives. The Company
shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all, or a substantial
part of the business or assets of the Company, by written agreement in the form
and substance satisfactory to
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Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as a director, officer, or
agent of the Company or of any other enterprise at the Company's request.
Section 13. ATTORNEYS' FEES.
In the event that any action is instituted by the Indemnitee under this
Agreement to enforce or interpret any of the terms hereof, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee with respect to such action, unless as a
part of such action, the court determines that each of the material assertions
made by Indemnitee as a basis for such action were not made in good faith or
were frivolous. In the event of an action instituted by or in the name of the
Company under this Agreement or to enforce or interpret any of the terms of this
Agreement, Indemnitee shall be entitled to be paid all court costs and expenses,
including attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross-claims made in
such action), unless as a part of such action the court determines that each of
Indemnitee's material defenses to such action were not made in good faith or
were frivolous. In the event of an action instituted by or in the name of the
Company under this Agreement or to enforce or interpret any of the terms of this
Agreement, Indemnitee shall be entitled to be paid all court costs and expenses,
including attorneys' fees, incurred by Indemnitee in defense of such action
(including with respect to Indemnitee's counterclaims and cross-claims made in
such action), unless as a part of such action, the court determines that each of
Indemnitee's material defenses to such action were not made in good faith or
were frivolous.
Section 14. NOTICE.
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered
by hand and receipted for by the party addressee on the date of such receipt,
or (ii) if mailed by domestic certified or registered mail with postage
prepaid on the third business day after the date postmarked. Addresses for
notice to either party are as shown on the signature page of this Agreement,
or as subsequently modified by written notice.
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Section 15. CONSENT TO JURISDICTION.
The Company and Indemnitee each hereby irrevocably consent to the
jurisdiction and venue of the courts of the County of Xxxxxxx, State of Nevada
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement.
Section 16. CHOICE OF LAW.
This Agreement shall be governed by and its provisions construed in
accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above-written.
HARVEYS ACQUISITION CORPORATION
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
President and Secretary
INDEMNITEE:
/s/ Xxxxxx X. Xxxxx
-------------------------------------
XXXXXX X. XXXXX
c/o Colony Capital, Inc.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
SCHEDULE
Pursuant to the Instructions to Item 601 of Regulation S-K, the registrant is
filing only the foregoing copy of the foregoing document, which is
substantially identical in all material respects except as to the party
thereto and the address for notices as another document required to be filed
as an exhibit to this Form 10-K. The registrant has omitted to file an
agreement which differs from the foregoing document only in that Xxxxxx X.
Xxxxxxx, Xx. is a party thereto instead of Xxxxxx X. Xxxxx. The registrant
undertakes to file a copy of such document at the request of the Commission.
