INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, made and entered
into this _____ day of ________ , 198_ ("Agreement"),
by and between POTLATCH CORPORATION, a Delaware Company
("Company"), and ______________________________ (the
"Director"),
W I T N E S S E T H:
Whereas highly competent persons are becoming
more reluctant to serve publicly-owned corporations and
their subsidiaries as directors or in other capacities
unless they are provided with adequate protection through
insurance or indemnification against inordinate risks of
claims and actions against them arising out of their service
to and activities on behalf of the Company; and
Whereas the current difficulty of obtaining
significant amounts of insurance at reasonable premiums and
the uncertainties relating to statutory indemnification have
increased the difficulty of attracting and retaining such
persons; and
Whereas the Board of Directors of the Company
(the "Board") has determined that the inability to attract
and retain such persons is detrimental to the best interests of
the Company's stockholders and that the Company should act
to assure such persons that there will be increased cer-
tainty of such protection in the future:
Whereas it is reasonable, prudent and necessary
for the Company contractually to obligate itself to indem-
nify such persons to the fullest extent permitted by appli-
cable law in order to induce them to serve or continue to
serve the Company free from undue concern that they will not
be so indemnified; and
Whereas Director is willing to serve, continue to
serve and to take on additional service for or on behalf of
the Company on the condition that he be so indemnified:
N o w, T h e r e f o r e, in consideration of
the premises and the covenants in this Agreement, and
intending to be legally bound, the Company and Director do
hereby covenant and agree as follows:
Section 1. Services by Director. Director agrees
to serve as a director so long as he is duly appointed or
elected and qualified in accordance with the applicable
Exhibit (10)(j)
provisions of the Restated Certificate of Incorporation and
By-laws of the Company or any subsidiary of the Company and
until such time as he resigns or fails to stand for ele-
ction. Director may at any time and for any reason resign
from such position (subject to any other contractual
obligation or other obligation imposed by operation of law),
in which event the Company shall have no obligation under
this Agreement to continue Director in any such position.
Section 2. Amendment of Certificate of Incorpora-
tion. The Company shall use its best efforts to amend the
Restated Certificate of Incorporation of the Company to
contain in substance the following provisions:
A. A director of the corporation shall not be
liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director except
for liability which, by express provision of the General
Corporation Law of Delaware as in effect from time to time
(hereinafter the "Delaware Law"), cannot be eliminated.
B. (i) The corporation shall, to the fullest
extent permitted by Delaware Law, indemnify any
person (the "Indemnitee") who is or was involved in
any manner (including, without limitation, as a
party or a witness) in any threatened, pending or
completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative
or investigative (including without limitation, any
action, suit or proceeding brought by or in the
right of the corporation to procure a judgment in
its favor) (a "Proceeding") by reason of the fact
that Indemnitee is or was a director, officer or
employee of the corporation, or is or was serving
another entity in such capacity at the request of
the corporation, against all expenses and
liabilities actually and reasonably incurred by
Indemnitee in connection with such Proceeding.
(ii) The right to indemnification conferred by
this Article shall be presumed to have been relied
upon by the Indemnitee and shall be enforceable as a
contract right. The corporation may enter into
contracts to provide individual Indemnitees with
specific rights of indemnification to the fullest
extent permitted by Delaware Law and may create
trust funds, grant security interests, obtain
letters of credit or use other means to ensure the
payment of such amounts as may be necessary to
effect the rights provided in this Article or in any
such contract.
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(iii) Upon making a request for indemnification,
Indemnitee shall be presumed to be entitled to
indemnification under this Article and the
corporation shall have the burden of proof to
overcome that presumption in reaching any contrary
determination. Such indemnification shall include
the right to receive payment in advance of any
expenses incurred by the Indemnitee in connection
with any Proceeding, consistent with the
provisions of Delaware Law.
C. Any repeal or modification of the foregoing
provisions of this Article shall not adversely affect any
right or protection of any director or any Indemnitee
existing at the time of such repeal or modification.
D. The amendment or repeal of this Article shall
require the approval of the holders of shares representing at
least eighty percent (80%) of the shares of the corporation
entitled to vote in the election of directors, voting as one
class.
Section 3. Indemnification. The Company shall
indemnify Director to the fullest extent permitted by
applicable law or the Restated Certificate of Incorporation of
the Company in effect on the date hereof or as such laws or
Restated Certificate of Incorporation may from time to time be
amended (but, in the case of any such amendment, only to the
extent such amendment permits the Company to provide broader
indemnification rights than the law or Restated Certificate of
Incorporation permitted the Company to provide before such
amendment). The right to indemnification conferred in the
Restated Certificate of Incorporation shall be presumed to
have been relied upon by Director in serving or continuing to
serve the Company and shall be enforceable as a contract
right. Without in any way diminishing the scope of the
indemnification provided by this Section 3, the Company will
indemnify Director if and whenever he is or was a party or is
threatened to be made a party to any Proceeding, including
without limitation any such Proceeding brought by or in the
right of the Company, by reason of the fact that he is or was
an Agent or by reason of anything done or not done by him in
such capacity, against Expenses and Liabilities actually and
reasonably incurred by Director or on his behalf in connection
with the investigation, defense, settlement or appeal of such
Proceeding. No initial finding by the Board, its counsel,
Independent Counsel, arbitrators or the stockholders shall be
effective to deprive Director of the protection of this
indemnity, nor shall a court to which Director may apply for
enforcement of this indemnity give any weight to any such
adverse finding in deciding any issue before it, as it is
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intended that Director shall be paid promptly by the Company
all amounts necessary to effectuate the foregoing indemnity in
full. In addition to, and not as a limitation of, the
foregoing, the rights of indemnification of Director provided
under this Agreement shall include those rights set forth in
Sections 4, 7 and 8 below.
Section 4. Advancement of Expenses and Costs;
Letter of Credit.
(a) Advances. All reasonable Expenses incurred by
or on behalf of Director shall be advanced by the Company to
Director within 20 days after the receipt by the Company of a
written request for an advance or advances of Expenses from
time to time, whether prior to or after final disposition of
a Proceeding (unless there has been a final determination
that Director is not entitled to be indemnified for such
Expenses), including without limitation any Proceeding
brought by or in the right of the Company. Director's
entitlement to advancement of Expenses shall include those
incurred in connection with any Proceeding by Director seeking
an adjudication or award in arbitration pursuant to this
Agreement. The requests shall reasonably evidence the
Expenses incurred by Director in connection therewith. If
required by law at the time of such advance, Director hereby
undertakes to repay the amounts advanced if it shall
ultimately be determined that Director is not entitled to be
indemnified pursuant to the terms of this Agreement.
(b) Letter of Credit. In order to secure the
obligations of the Company to indemnify Director under Section
3 hereof and to advance to Director certain amounts under
Section 4(a) hereof, the Company shall obtain upon the
occurrence of any Triggering Event, an irrevocable standby
letter of credit naming Director as the sole beneficiary, in an
appropriate amount not less than $500,000, issued by a
financial institution having assets in excess of $100 million
and containing terms and conditions reasonably acceptable to
Director (the "Letter of Credit"). The Letter of Credit shall
provide that Director may from time to time draw certain
amounts thereunder, upon the presentation to the issuer
thereof of a certificate executed by Director certifying (i)
that Director has made demand upon the Company for an amount
not less than the amount he is drawing upon under the Letter
of Credit and that the Company has refused to provide Director
with such amount and (ii) that Director believes that he is
entitled under the terms of this Agreement to the amount which
he is drawing upon under the Letter of Credit.
(c) Term of Letter of Credit. Once the Company has
obtained the Letter of Credit required by Section 4(b)
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hereof, the Company shall maintain and renew the Letter of
Credit or a substitute letter of credit meeting the criteria
of Section 4(b) hereof during the term of this Agreement in a
manner such that the Letter of Credit shall have an initial
term of five years, be renewed for successive five-year terms,
and shall always have at least one year of its term remaining.
Section 5. Procedure for Determination of
Entitlement to Indemnification.
(a) Whenever Director believes that he is entitled
to indemnification pursuant to this Agreement, Director shall
submit a written request for indemnification to the Company to
the attention of the Chairman of the Board and Chief Executive
Officer with a copy to the Secretary. This request shall
include documentation or information which is necessary
for the determination of entitlement to indemnification
and which is reasonably available to Director. Determination
of Director's entitlement to indemnification shall be made not
later than 60 days after any judgment, order, settlement,
dismissal, arbitration award, conviction, acceptance of a plea of
nolo contendere or its equivalent, or other disposition or partial
disposition of any Proceeding or any other event which could enable
the Company to determine Director's entitlement to indemnification.
The Chairman of the Board and Chief Executive Officer, or the
Secretary shall, promptly upon receipt of Director's request
for indemnification, advise the Board in writing that Director has
made such request for indemnification.
(b) The Company shall be entitled to select the
forum in which Director's entitlement to indemnification will
be heard unless a Triggering Event has occurred, in which case
Director shall be entitled to select the forum. The Company or
Director, as the case may be, shall notify the other party in
writing as to the forum selected, which selection shall be
from among the following:
(i) The stockholders of the Company;
(ii) A quorum of the Board consisting of
Disinterested Directors;
(iii) Independent Counsel selected by Director,
and reasonably approved by the Board, which counsel
shall make the determination in a written opinion; or
(iv) A panel of three arbitrators, one of whom
is selected by the Company, another of whom is
selected by Director and the last of whom is
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selected by the first two arbitrators so selected;
or if for any reason three arbitrators are not
selected within thirty days after the appointment
of the first arbitrator, then selection of
additional arbitrators to complete the three
person panel shall be made by the American
Arbitration Association under its commercial
arbitration rules now in effect.
Section 6. Presumptions and Effect of Certain
Proceedings. Upon making a request for indemnification,
Director shall be presumed to be entitled to indemnification
under this Agreement and the Company shall have the burden
of proof to overcome that presumption in reaching any
contrary determination. If the person or persons so empow-
ered to make the determination shall have failed to make the
requested indemnification within 60 days after any judgment,
order, settlement, dismissal, arbitration award, conviction,
acceptance of a plea of nolo contendere or its equivalent,
or other disposition or partial disposition of any Proceed-
ing or any other event which could enable the Company to
determine Director's entitlement to indemnification, the
requisite determination of entitlement to indemnification
shall be deemed to have been made and Director shall be abso-
lutely entitled to indemnification under this Agreement,
absent (i) misrepresentation by Director of a material fact
in the request for indemnification or (ii) a specific
finding that all or any part of such indemnification is
expressly prohibited by law. The termination of any Pro-
ceeding by judgment, order, settlement, arbitration award or
conviction, or upon a plea of nolo contendere or its equi-
valent, shall not of itself (a) adversely affect the rights
of Director to indemnification except as may be provided
herein, (b) create a presumption that Director did not act in
good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Company,
or (c) with respect to any criminal action or proceeding,
create a presumption that Director had reasonable cause to
believe that his conduct was unlawful.
Section 7. Remedies of Director in Cases of
Determination not to Indemnify or to Advance Expenses.
(a) In the event that (i) an initial determina-
tion is made that Director is not entitled to indemnifica-
tion, (ii) advances are not made pursuant to this Agreement,
(iii) payment has not been timely made following a deter-
mination of entitlement to indemnification pursuant to this
Agreement or (iv) Director otherwise seeks enforcement of
this Agreement, Director shall be entitled to a final adjudi-
cation in an appropriate court of the State of Delaware of
his entitlement to such indemnification or advance.
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Alternatively, Director at his option may seek an award in arbi-
tration to be conducted by a single arbitrator pursuant to
the commercial arbitration rules of the American Arbitration
Association now in effect, which award is to be made within
ninety (90) days following the filing of the demand for
arbitration. The Company shall not oppose Director's right
to seek any such adjudication or arbitration award. In any
such proceeding or arbitration Director shall be presumed to
be entitled to indemnification under this Agreement and the
Company shall have the burden of proof to overcome that
presumption.
(b) In the event an initial determination has been
made, in whole or in part, that Director is not entitled to
indemnification, the decision in the judicial proceeding or
arbitration provided in paragraph (a) of this Section 7 shall
be made de novo and Director shall not be prejudiced by reason
of a determination that he is not entitled to indemnification.
(c) If an initial determination is made or deemed
to have been made pursuant to the terms of this Agreement that
Director is entitled to indemnification, the Company shall be
bound by such determination in the absence of (i) a
misrepresentation of a material fact by Director or (ii) a
specific finding (which has become final) that all or any part
of such indemnification is expressly prohibited by law.
(d) The Company shall be precluded from asserting
that the procedures and presumptions of this Agreement are not
valid, binding and enforceable. The Company shall stipulate in
any such court or before any such arbitrator that the Company
is bound by all the provisions of this Agreement and is
precluded from making any assertion to the contrary.
(e) Expenses incurred by Director in connection with
his request for indemnification under, seeking enforcement of
or to recover damages for breach of this Agreement shall be
borne by the Company.
Section 8. Other Rights to Indemnification.
Director's rights of indemnification and advancement of
expenses provided by this Agreement shall not be deemed
exclusive of any other rights to which Director may now or in
the future be entitled under applicable law, the Restated
Certificate of Incorporation, By-laws, agreement, vote of
stockholders, resolution of directors, or otherwise.
Section 9. Limitations on Indemnity. The Company
shall not be liable under this Agreement to make any payment
to Officer to the extent that Officer has already been
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reimbursed pursuant to such D & O Insurance as the Company may
maintain for Director's benefit. Notwithstanding the
availability of such insurance, Director may also claim
indemnification from the Company pursuant to this Agreement by
assigning to the Company any claims under such insurance to
the extent Director is paid by the Company.
Section 10. Duration and Scope of Agreement; Binding
Effect. This Agreement shall continue so long as Director
shall be subject to any possible Proceeding by reason of the
fact that he is or was an Agent and shall be applicable to
Proceedings commenced or continued after execution of this
Agreement, whether arising from acts or omissions occurring
before or after such execution. This Agreement shall be
binding upon the Company and its successors and assigns and
shall inure to the benefit of Director and his spouse,
assigns, heirs, devisees, executors, administrators and other
legal representatives.
Section 11. Severability. If any provision or
provisions of this Agreement (or any portion thereof) shall
be held to be invalid, illegal or unenforceable for any
reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement
shall not in any way be affected or impaired thereby; and (b)
to the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or
unenforceable.
Section 12. Identical Counterparts. This Agreement
may be executed in one or more counterparts, each of which
shall for all purposes be deemed to be an original but all of
which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the
existence of this Agreement.
Section 13. Interpretation of Agreement. It is
understood that the parties hereto intend this Agreement to be
interpreted and enforced so as to provide indemnification to
Director to the fullest extent now or hereafter permitted by
law.
Section 14. Headings. The headings of the Sections
and paragraphs of this Agreement are inserted for convenience
only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
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Section 15. Definitions. For purposes of this
Agreement:
(a) "Agent" shall mean any person who (i) is or was
a director, officer or employee of the Company or a subsidiary
of the Company whether serving in such capacity or as a
director, officer, employee, agent, fiduciary or other
official of another entity at the request of, for the
convenience of, or to represent the interests of the Company
or a subsidiary of the Company or (ii) was a director,
officer or employee of a corporation which was a predecessor
corporation of the Company or a subsidiary of the Company
whether serving in such capacity or as a director, officer,
employee, agent, fiduciary or other official of another entity
at the request of, for the convenience of, or to represent the
interests of such predecessor corporation.
(b) "Disinterested Director" shall mean a director
of the Company who is not or was not a party to the
Proceeding in respect of which indemnification is being
sought by Director.
(c) "Expenses" shall include all direct and indirect
costs (including, without limitation, attorneys' fees,
retainers, court costs, transcripts, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, all
other disbursements or out-of-pocket expenses and reasonable
compensation for time spent by Director for which he is
otherwise not compensated by the Company or any third party)
actually and reasonably incurred in connection with either the
investigation, defense, settlement or appeal of a Proceeding
or establishing or enforcing a right to indemnification under
this Agreement, applicable law or otherwise; provided,
however, that "Expenses" shall not include any judgments,
fines or ERISA excise taxes or penalties.
(d) "Independent Counsel" shall mean a law firm or a
member of a law firm that neither is presently nor in the past
five years has been retained to represent: (i) the Company or
Director in any matter material to either party, or (ii) any
other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the
term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing
either the Company or Director in an action to determine
Director's right to indemnification under this Agreement.
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(e) "Liabilities" shall mean liabilities of any
type whatsoever, including, but not limited to, judgments,
fines, ERISA excise taxes and penalties, and amounts paid in
settlement.
(f) "Proceeding" shall mean any action, suit,
arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding
whether civil, criminal, administrative or investigative.
(g) "Triggering Event" shall mean the acquisition
by any person (other than the Company) of 30% or more of the
outstanding shares of common stock of the Company unless a
majority of the entire Board, which shall include the
affirmative vote of at least one director from each class of
the Board, shall have earlier approved such acquisition.
Section 16. Pronouns. Use of the masculine
pronoun shall be deemed to include usage of the feminine
pronoun where appropriate.
Section 17. Modification and Waiver. No supplement,
modification or amendment of this Agreement shall be binding
unless executed in writing by both of the parties to this
Agreement. No waiver of any provision of this Agreement shall
be deemed to constitute a waiver of any other provision hereof
(whether or not similar) nor shall such waiver constitute a
continuing waiver.
Section 18. Notice by Director and Defense of Claims.
Director agrees promptly to notify the Company in writing upon
being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any
matter which may be subject to indemnification hereunder,
whether civil, criminal, administrative or investigative; but
the omission so to notify the Company will not relieve it from
any liability which it may have to Director if such omission
does not prejudice the Company's rights and if such omission
does prejudice the Company's rights, it will relieve the
Company from liability only to the extent of such prejudice;
nor will such omission relieve the Company from any liability
which it may have to Director otherwise than under this
Agreement. With respect to any Proceeding as to which Director
notifies the Company of the commencement thereof:
(a) The Company will be entitled to participate
therein at its own expense; and
(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
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assume the defense thereof, with counsel reasonably
satisfactory to Director. After notice from the Company to
Director of its election so to assume the defense thereof, the
Company will not be liable to Director under this Agreement
for any Expenses subsequently incurred by Director in
connection with the defense thereof other than reasonable
costs of investigation or as otherwise provided below.
Director shall have the right to employ his counsel in such
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 Director unless
(i) the employment of counsel by Director has been authorized
by the Company, (ii) Director shall have reasonably concluded
that there may be a conflict of interest between the Company
and Director in the conduct of the defense of such action or
that counsel may not be adequately representing Director, (iii)
a Triggering Event shall have occurred or (iv) the Company
shall not in fact have employed counsel to assume the defense
of such action, 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 Proceeding
as to which Director shall have made the conclusion provided
for in (ii) above or if an event specified in (iii) above
shall have occurred.
(c) The Company shall not be liable to indemnify
Director 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
Director without Director's written consent. Neither the Company
nor Director will unreasonably withhold their consent to any
proposed settlement.
Section 19. Notices. All notices, requests, demands
and other communications hereunder shall be in writing and
shall be deemed to have been duly given if (i) delivered by
hand and receipted for by the party to whom said notice or
other communication shall have been directed or (ii) mailed by
certified or registered mail with postage prepaid, on the
third business day after the date on which it is so mailed:
(a) If to Director, to:
____________________
____________________
____________________
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(b) If to the Company, to:
Potlatch Corporation
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman of the Board and
Chief Executive Officer
With a copy to:
Secretary
or to such other address as may have been furnished to
Director by the Company or to the Company by Director, as the
case may be.
Section 20. Governing Law. The parties agree that
this Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of
Delaware, as applied to contracts between Delaware residents
entered into and to be performed entirely within Delaware.
Section 21. Consent to Jurisdiction. The Company and
Director each hereby irrevocably consent to the jurisdiction
of the courts of the State of Delaware 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 Delaware.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement on the day and year first above
written.
ATTEST:
POTLATCH CORPORATION
By ______________________ By _________________________
Director
____________________________
Address: ____________________________
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Schedule A to Exhibit (10)(j)
February 1, 1997
Form of Indemnification Agreement with each Director is
dated as of December 11, 1986, except for the Agreements
with:
(i) Messrs. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
which are dated as of February 20, 1987, and
May 6, 1988, respectively;
(ii) Messrs. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, which are dated
as of February 22, 1990;
(iii) ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, which is dated as of
January 1, 1991;
(iv) ▇▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, which are dated as of December 10,
1992; and
(v) ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, which is dated as of
January 1, 1994.