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EXHIBIT 10.153
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of
this 24th day of February, 1999 by and between INSURANCE AUTO AUCTIONS, INC., an
Illinois corporation (the "Company"), and ___________________ ("Indemnitee").
WHEREAS, the Company desires to attract and retain the
services of highly qualified individuals, such as Indemnitee, to serve as
officers and/or directors of the Company and to indemnify its officers and/or
directors so as to provide them with the maximum protection permitted by law;
NOW, THEREFORE, the Company and Indemnitee hereby agree as
follows:
1. Indemnification.
(a) Third Party Proceedings. The Company
shall indemnify Indemnitee if Indemnitee is or was 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 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 attorneys' fees), judgments, fines and
amounts paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) actually and
reasonably incurred by Indemnitee in connection with such action, suit or
proceeding, if Indemnitee acted in good faith and in a manner 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 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, shall not, of itself, create a
presumption that Indemnitee did not act in good
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faith and in a manner which Indemnitee reasonably believed to be in, or not
opposed to, the best interests of the Company or, with respect to any criminal
action or proceeding, 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 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 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 attorneys' fees) and, to the fullest extent permitted by law,
judgments, fines and amounts paid in settlement, in each case to the extent
actually and reasonably incurred by Indemnitee in connection with the defense or
settlement of such action, suit or proceeding if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in, or not opposed to, the
best interest of the Company, except that no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Company unless and only to the extent that the
court in which such action or suit 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
indemnification and then only to the extent that the court shall determine.
(c) Mandatory Payment of Expenses. To the
extent that Indemnitee has been successful, on the merits or otherwise, in the
defense of any action, suit or proceeding referred to in Subsections (a) and (b)
of this Section 1 or in defense of any claim, issue or matter therein,
Indemnitee shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by Indemnitee in connection therewith.
2. Agreement to Serve. Indemnitee agrees to continue to serve
in his capacity as a director, officer, employee or agent of the Company (or at
the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint
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venture, trust or other enterprise), at the will of the Company (or under
separate agreement, if such exists) so long as Indemnitee is duly designated,
appointed or elected and in accordance with the applicable provisions of the
Company (or such other enterprise) or until Indemnitee tenders his resignation
in writing. Nothing in this Agreement is intended to create in Indemnitee any
right to continue to act as an agent of the Company, to serve as an officer
and/or director of the Company or to be employed by the Company.
3. Expenses; Indemnification Procedure.
(a) Advancement of Expenses. The Company shall
advance all expenses incurred by Indemnitee in defending any civil or criminal
action, suit or proceeding referenced in Section 1(a) or (b) hereof (including
expenses incurred in investigating or appealing any such action, suit or
proceeding). Indemnitee hereby undertakes to repay such amounts advanced if, and
to the extent that, it shall ultimately be determined that Indemnitee is not
entitled to be indemnified by the Company as authorized under Illinois law. The
advances to be made hereunder shall be paid by the Company to Indemnitee within
twenty (20) days following delivery of a proper written request therefor by
Indemnitee to the Company.
(b) Notice/Cooperation by Indemnitee.
Indemnitee shall, as a condition precedent to his 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
of the Company at the address 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 five 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
the Company. In addition, Indemnitee shall give the Company such information and
cooperation as it may reasonably require and as shall be within Indemnitee's
power.
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(c) Procedure. Any indemnification provided for in
Section 1 shall be made no later than forty-five (45) days after receipt by the
Company of a proper written request therefor from Indemnitee; provided, however,
that no such indemnification (unless ordered by a court) shall be made unless
and until authorized in each specific case, upon a determination that
indemnification is proper in the circumstances because Indemnitee has met the
applicable standard of conduct set forth in Section 1 hereof. Such determination
shall be made (i) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the action, suit or proceeding
in connection with which indemnification is sought, or (ii) if such quorum is
not obtainable or, even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (iii) by the
shareholders. If a claim under this Agreement, under any statute, or under any
provision of the Company's Articles of Incorporation or Bylaws providing for
indemnification, is not paid in full by the Company within forty-five (45) days
after a proper written request for payment thereof has first been received by
the Company, 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 13 of this Agreement, Indemnitee shall also be entitled to be
paid for the reasonable expenses (including attorneys' fees) of bringing such
action. In any such action (other than an action brought to enforce a claim for
expenses incurred in connection with any action, suit or proceeding in advance
of its final disposition), the Company shall have the burden of proving that
Indemnitee has not met the standards of conduct which make it permissible for
the Company to indemnify Indemnitee for the amount claimed. Notwithstanding the
absence of a determination that indemnification is proper in the circumstances,
Indemnitee shall be entitled to receive interim payments of expenses pursuant to
Subsection 3(a) unless and until it may be finally adjudicated by court order or
judgment, from which no further right of appeal exists, that Indemnitee has not
met the standards of conduct which make it permissible for the Company to
indemnify the Indemnitee for the amount claimed. It is the parties' intention
that if the Company contests Indemnitee's right to indemnification, the question
of Indemnitee's right to indemnification shall
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be for the court to decide, and neither the failure of the Company (including
its Board of Directors, any committee or subgroup of the Board of Directors,
independent legal counsel, or its shareholders) to have made a determination
that indemnification of Indemnitee is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Company (including its Board of Directors, any committee or
subgroup of the Board of Directors, 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
occurrence of a claim pursuant to Section 3(b) hereof, the Company has director
and officer liability insurance in effect, 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 desirable action to cause such insurers to pay, on behalf
of the Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company
shall be obligated under Section 3(a) hereof to pay the expenses of any
proceeding against Indemnitee, the Company, if appropriate, shall be entitled to
assume the defense of such proceeding, with counsel approved by Indemnitee,
whose approval shall not be unreasonably withheld, upon the delivery to
Indemnitee of written notice of its election to do so. 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 fee of counsel subsequently incurred by Indemnitee with
respect to the same proceeding, provided that Indemnitee shall have the right to
employ his own counsel in any such proceeding at Indemnitee's expense; however,
if (i) the employment of counsel by Indemnitee has been previously authorized by
the Company, (ii) Indemnitee and the Company shall have reasonably concluded
that there may be a conflict of interest between the Company and Indemnitee in
the
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conduct of any such defense, or (iii) the Company shall not, in fact, 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.
4. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. Notwithstanding any other provision
of this Agreement, the Company hereby agrees to indemnify the Indemnitee to the
fullest extent permitted by law. In the event of any change in any applicable
law, statute or rule which expands the right of an Illinois corporation to
indemnify a member of its board of directors, an officer, employee or agent,
such changes shall be incorporated into and applied to this Agreement and to the
parties' rights and obligations hereunder notwithstanding that such expanded
indemnification is not specifically authorized by the other provisions of this
Agreement, the Company's Articles of Incorporation or the Company's Bylaws. In
the event of any change in any applicable law, statute or rule which narrows the
right of an Illinois corporation to indemnify a member of its board of
directors, an officer, employee or agent, such changes, to the extent not
otherwise required by such law, statute or rule to be applied to this Agreement,
shall have no effect on this Agreement or the parties' rights and obligations
hereunder.
(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 Articles of Incorporation, its
Bylaws, any agreement, any majority-in-interest vote of shareholders or
disinterested Directors, the Illinois Business Corporation Act of 1983, as
amended, or otherwise, both as to action in Indemnitee's official capacity or
position and as to action in another capacity or position while holding such
office or other position. The indemnification provided under this Agreement
shall continue as to 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, suit or other covered proceeding.
5. 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,
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judgments, fines or penalties actually or reasonably incurred by Indemnitee in
the investigation, defense, appeal or settlement of any civil or criminal
action, suit 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.
6. 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 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.
7. Officer and Director 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 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. In all policies of
director and officer liability insurance, Indemnitee shall be named as an
insured in such a manner as to provide Indemnitee the same rights and benefits
as are accorded to the most favorably insured of the Company's directors, if
Indemnitee is a director; or of the Company's officers, if Indemnitee is not a
director of the Company but is an officer; or of the Company's employees or
agents, if Indemnitee is not an officer or director but is an employee or agent.
Notwithstanding the foregoing, the Company shall have no obligation to obtain or
maintain such insurance.
8. 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
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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 not so invalidated shall be enforceable in accordance with its terms.
9. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) 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, 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.
(b) Lack of Good Faith. To indemnify Indemnitee for
any expenses incurred by the Indemnitee with respect to any proceeding
instituted by Indemnitee to enforce or interpret this Agreement, if 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.
(c) Insured Claims. To indemnify Indemnitee for
expenses or liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes, penalties and amounts paid in settlement)
which have been paid directly to Indemnitee by an insurance carrier under a
policy of officers' and directors' liability insurance maintained by the
Company.
(d) Claims Under Section 16(b). To indemnify
Indemnitee for expenses and the payment of profits arising from the purchase and
sale by Indemnitee of
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securities in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute.
10. Construction of Certain Phrases.
(a) For purposes of this Agreement, references to
the "Company" shall include, in addition to the Company, any merging corporation
(including any corporation having merged with a merging corporation) absorbed in
a merger which, if its separate existence had continued, would have had the
power and authority to indemnify its directors, officers, employees or agents,
so that if Indemnitee was a director, officer, employee or agent of such merging
corporation, or was serving at the request of such merging corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, Indemnitee shall stand in the same position
under the provisions of this Agreement with respect to the surviving corporation
as Indemnitee would have with respect to such merging 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
beneficiaries; and, if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have
acted in a manner "not opposed to the best interest of the Company" as referred
to in this Agreement.
11. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original.
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12. Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the benefit
of Indemnitee and Indemnitee's estate, heirs, legal representatives and assigns.
13. Attorneys' Fees. In the event that any action is
instituted by 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 of competent
jurisdiction 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 made in bad faith or were
frivolous.
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 fifth 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.
15. Consent to Jurisdiction. The Company and Indemnitee each
hereby irrevocably consent to the jurisdiction of the courts of the State of
Illinois for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement and agree that any action instituted
under this Agreement shall be brought only in the state courts of the State of
Illinois located in ▇▇▇▇ County.
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16. Choice of Law. This Agreement shall be governed by
and its provisions construed in accordance with the laws of the State of
Illinois, as applied to contracts between Illinois residents entered into and to
be performed entirely within Illinois.
17. Modification. This Agreement constitutes the entire
agreement between the parties hereto with respect to
the subject matter hereof. All prior negotiations,
agreements and understandings between the parties
with respect thereto are superseded hereby. This
Agreement may not be modified or amended except by
mutual agreement in an instrument in writing signed
by or on behalf of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
INSURANCE AUTO AUCTIONS, INC.
By:
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Name:
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Title:
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Address: Insurance Auto Auctions, Inc.
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AGREED TO AND ACCEPTED:
INDEMNITEE:
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