EXHIBIT 6.5
INDEMNITY AGREEMENT
This Agreement is made as of the day of , 1997, by and
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between INTERNATIONAL COMPUTEX, INC., a Georgia corporation (the "Corporation")
and ("Indemnitee"), a Director and/or Officer of the
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Corporation.
W I T N E S S E T H:
WHEREAS, it is essential to the Corporation to retain and attract as
Directors and Officers the most capable persons available; and
WHEREAS, service as a director or officer of a corporation, particularly a
corporation the securities of which are or are to be publicly held, may subject
a person to substantial litigation and other risks; and
WHEREAS, it is the express policy of the Corporation to indemnify its
Directors and Officers so as to provide them with the maximum possible
protection permitted by law; and
WHEREAS, Indemnitee does not regard the indemnification provided for under
the Corporation's Articles of Incorporation and By-laws as adequate in the
present circumstances and may not be willing to serve as a Director or Officer
without the provision of further rights to the indemnification, and the
Corporation desires Indemnitee to serve in such capacity.
NOW THEREFORE, for and in consideration of the premises, agreements and
covenants contained herein, the services provided by Indemnitee as Director or
Officer of the Corporation, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to serve as
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a Director and/or Officer of the Corporation until his or her death, or his or
her resignation or removal from office, or the election or appointment and
qualification of his or her successor, whichever shall first occur.
2. Definitions. As used in this Agreement:
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(a) The term "Proceeding" shall include any threatened, pending or
completed investigation, claim, action, suit or proceeding, whether of a
civil, criminal, administrative or investigative nature (including, without
limitation, any action, suit or proceeding by or in the right of the
corporation to procure a judgment in its favor), in which Indemnitee may be
or may have been or may be threatened to be made to become involved in any
manner (including, without limitation, as a party or a witness) by reason
of the fact that Indemnitee is or was a Director, Officer, employee or
agent of the Corporation, or is or was serving at the request of the Board
of Directors or an Officer of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise (whether or not for profit), or by reason of anything
actually or allegedly done or not done by Indemnitee in any such capacity,
whether or not Indemnitee is serving in such capacity at the time any
liability or expense is incurred for which indemnification or reimbursement
can be provided under this Agreement.
(b) The term "Expenses" includes, without limitation, attorneys' fees
and disbursements and all other costs, expenses and obligation actually and
reasonably incurred by Indemnitee in connection with (i) investigating,
defending, being a witness in or otherwise participating in, or preparing
to defend, be a witness in or participate in, any Proceeding, (ii)
establishing a right to indemnification under Paragraph 7 of this Agreement
or (iii) obtaining recovery under any directors' and officers' liability or
similar insurance policy or policies purchased or maintained at any time by
the Corporation.
(c) References to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise tax assessed with
respect to any employee benefit plan; references to "serving at the request
of the Board of Directors or an Officer of the Corporation" shall include
any service as a Director, Officer, employee or agent of the Corporation
which imposes duties on, or involves services by, such Director, Officer,
employee or agent with respect to an employee benefit plan or its
participants or beneficiaries; and a person who acted in good faith and in
a manner he or she reasonably believed to be in the interests of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
Corporation" for purposes of this Agreement.
3. Indemnity in Third-Party Proceedings. The Corporation shall indemnify
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Indemnitee in accordance with the provisions of this Paragraph 3 if Indemnitee
is or was or is threatened to be made to become involved in any manner,
including without limitation as a party or witness, in any Proceeding (other
than a Proceeding by or in the right of the Corporation to procure a judgment in
its favor) against any and all Expenses and any and all judgments, fines and
penalties entered or assessed against Indemnitee, and any and all amounts
reasonably paid or payable in settlement by Indemnitee, in connection with such
Proceeding, but only if Indemnitee acted in good faith and, in the case of
conduct in his or her official capacity, that such conduct was in the best
interests of the Corporation and in all other cases at least not opposed to the
best interests of the Corporation, and Indemnitee in the case of a Proceeding of
a criminal nature, in addition, had no reasonable cause to believe that his or
her conduct was unlawful.
4. Indemnity in Proceedings By or In the Right of the Corporation. The
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Corporation shall indemnify Indemnitee in accordance with the provisions of this
Paragraph 4 if Indemnitee is or was or is threatened to be made to become
involved in any manner, including without limitation as a party or witness, in
any Proceeding by or in the right of the Corporation, against any and all
Expenses, but only if Indemnitee acted in good faith and, in the case of conduct
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in his or her official capacity, that such conduct was in the best interests of
the Corporation and in all other cases at least not opposed to the best
interests of the Corporation, except that no indemnification for Expenses shall
be made under this Paragraph 4 in respect of any claim, issue or matter as to
which Indemnitee shall have been adjudged to be liable to the Corporation,
unless and only the extent that any court in which such Proceeding was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for such Expenses as such court shall deem
proper.
5. Indemnification of Expenses of Successful Party; No Adverse
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Presumption. Notwithstanding any other provisions of this Agreement, to the
extent that Indemnitee has been successful on the merits or otherwise, in
defense of any Proceeding or in defense of any claim, issue or matter therein,
including the dismissal of an action without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection therewith. The
termination of any Proceeding by judgment, order of court, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption for purposes of any provision of this Agreement
that Indemnitee did not act in good faith, in a manner which he or she
reasonably believed to be in the best interests of the Corporation, or with
respect to any Proceeding of a criminal nature, that such person had reasonable
cause to believe that his or her conduct was unlawful.
6. Advances of Expenses. The Expenses incurred by Indemnitee in any
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Proceeding shall be paid by the Corporation in advance, promptly upon the
written request of the Indemnitee, if Indemnitee shall undertake to repay such
amount to the extent that it is ultimately determined that Indemnitee is not
entitled to indemnification. No security for the performance of any such
undertaking shall be require and any such undertaking shall be accepted by the
Corporation without regard to the financial capacity of Indemnitee to perform
its obligations thereunder.
7. Right of Indemnitee to Indemnification Upon Application; Procedure Upon
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Application. Without limiting the obligation of the Corporation to promptly
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make payments in respect of Expenses in accordance with Paragraph 6, any
indemnification under Paragraphs 3 and 4 shall be made no later than 45 days
after receipt by the Corporation of the written request of Indemnitee, unless a
determination is made within said 45-day period by (a) the Board of Directors of
the Corporation by a majority vote of a quorum consisting of Directors who are
not and were not parties to the relevant Proceeding, or (b) independent legal
counsel in a written opinion (which counsel shall be appointed if such a quorum
is not obtainable) that the Indemnitee has not met the relevant standards for
indemnification set forth in Paragraphs 3 and 4.
The right to indemnification or advances as provided by this Agreement
shall be enforceable by Indemnitee in any court of competent jurisdiction. The
burden of proving that indemnification is not appropriate shall be on the
Corporation. Indemnitee's Expenses reasonably incurred in connection with
successfully establishing his or her right to indemnification, in whole or in
part, in any such Proceeding shall also be indemnified by the Corporation.
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8. Indemnification Hereunder Not Exclusive. The indemnification provided
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by this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under the General Corporation Law of the State of
Georgia, the Articles of Incorporation or By-laws of the Corporation, any other
agreement, any vote of stockholders or disinterested Directors, or otherwise,
either as to action in his or her official capacity or as to action in any other
capacity. To the extent that Indemnitee otherwise would have any greater right
to indemnification under any provision of the General Corporation Law of the
State of Georgia or the Articles of Incorporation or By-laws of the Corporation
as in effect on the date hereof, Indemnitee will be deemed to have such greater
right hereunder, and, to the extent that any change is made to the General
Corporation Law of the State of Georgia (whether by legislative action or
judicial decision) or the Articles of Incorporation or the By-laws of the
Corporation, which permits any greater right to indemnification than that
provided under this Agreement as of the date hereof, Indemnitee will be deemed
to have such greater right thereunder. The Corporation will not adopt any
amendment to the Articles of Incorporation or By-laws of the Corporation, the
effect of which would be to deny, diminish or encumber Indemnitee's right to
indemnification under the General Corporation Law of the State of Georgia, the
Articles of Incorporation or the By-laws of the Corporation or otherwise as
applied to anything actually or allegedly done or failed to be done in whole or
in part prior to the date upon which the amendment was approved by the
Corporation's Board of Directors, its stockholders or both, as the case may be.
The rights to indemnification and advancement of expenses under this
Agreement shall continue as to Indemnitee even though he or she may have ceased
to be a Director and/or Officer, or to serve in any capacity for or on behalf of
the Corporation or any other enterprise, and shall inure to the benefit of the
heirs, executors, administrators or estate of Indemnitee.
9. Partial Indemnification. In the event that Indemnitee is entitled
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under any provision of this Agreement to indemnification by the Corporation for
a portion but less than the entire amount of any Expenses, judgments, fines,
penalties or amounts paid or payable in settlement, the Corporation shall fully
indemnify Indemnitee in accordance with the applicable provisions of this
Agreement for such portion of such Expenses, judgments, fines penalties or
amounts paid in settlement.
10. Liability Insurance and Funding. To the extent the Corporation
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purchases or maintains any insurance policy or policies providing directors' and
officers' liability or similar insurance, Indemnitee shall be covered by such
policy or policies, in accordance with its or their terms, to the maximum extent
of the coverage available for any Director of Officer of the Corporation.
Indemnitee's Expenses in connection with successfully obtaining any recovery
under any such directors' and officers' liability insurance or similar policy
shall also be indemnified by the Corporation. The Corporation may, but shall
not be required to, create a trust fund, grant a security interest or use other
means (including without limitation procuring one or more letters of credit) to
ensure the payment of such amounts as may be necessary to satisfy its
obligations to provide indemnification and advance Expenses pursuant to this
Agreement.
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11. Subrogation. In the event that the Corporation provides any
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indemnification or makes any payment to Indemnitee in respect of any matter in
respect of which indemnification or the advancement of expenses is provided for
herein (regardless of whether such indemnification or payment is provided or
made under the provisions of this Agreement, the General Corporation Law of the
State of Georgia, the Articles of Incorporation or By-laws of the Corporation or
otherwise), the Corporation shall be subrogated to the extent of such
indemnification or other payment to all of the related rights of recovery of
Indemnitee against other persons or entities. Indemnitee shall execute all
papers reasonably required and shall do everything that may be reasonably
necessary to secure such rights and enable the Corporation effectively to bring
suit to enforce such rights (with all of Indemnitee's reasonable costs and
expenses,including attorneys' fees and disbursements, to be reimbursed by or, at
the option of Indemnitee, advanced by the Corporation).
12. No Duplication of Payments. The Corporation shall not be obligated
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under this Agreement to provide any indemnification or make any payment to which
Indemnitee is otherwise entitled hereunder to the extent, but only to the
extent, that such indemnification or payment hereunder would be duplicative of
any amount actually received by Indemnitee pursuant to any insurance policy, the
General Corporation Law of the State of Georgia, the Articles of Incorporation
or the By-laws of the Corporation or otherwise.
13. Saving Clause. If any provision of this Agreement or the application
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of any provision hereof to any circumstance is held illegal, invalid or
otherwise unenforceable, the remainder of this Agreement and the application of
such provision to any other circumstance shall not be affected, and the
provision so held to be illegal, invalid or otherwise unenforceable shall be
reformed to the extent (but only to the extent) necessary to make it legal,
valid and enforceable.
14. Notice. Indemnitee shall give to the Corporation notice in writing as
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soon as practicable of any claim made against him or her for which
indemnification will or could be sought under this Agreement, provided, however,
that any failure to give such notice to the Corporation will relieve the
Corporation from its obligations hereunder only if, and to the extent that, such
failure results in the forfeiture of substantial rights and defenses. Notice to
the Corporation shall be directed to the Corporation (to the attention of the
President, with a copy to the General Counsel) at its principal executive office
or such other address as the Corporation shall designate in writing to
Indemnitee. Notice shall be deemed received when hand delivered or dispatched
by electronic facsimile transmission (with receipt thereof orally confirmed), or
three calendar days after having been mailed by United States registered or
certified mail, return receipt requested, postage prepaid, or one business day
after having been sent for next-day delivery by a nationally recognized
overnight courier. In addition, Indemnitee shall give the Corporation such
information and cooperation as it may reasonably require and shall be within
Indemnitee's power.
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15. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute one and the same instrument.
16. Applicable Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Georgia, without giving effect to the
principles of conflicts of law thereof.
17. Successors. This Agreement shall be binding upon the Corporation and
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its successors, including without limitation any person acquiring directly or
indirectly all or substantially all of the business or assets of the Corporation
whether by purchase, merger, consolidation, reorganization or otherwise (and
such successor will thereafter be deemed the "Corporation" for purposes of this
Agreement), but will not otherwise be assignable, transferable or delegatable by
the Corporation. The Corporation shall require any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization or otherwise) to
all or substantially all of the business or assets of the Corporation, to assume
and agree in writing to perform this Agreement, expressly for the benefit of
Indemnitee, in the same manner and to the same extent the Corporation would be
required to perform if no such succession had taken place.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
INTERNATIONAL COMPUTEX, INC.
By:
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Title:
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INDEMNITEE:
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