Exhibit 10.9
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made this day of , between TRANSFINANCIAL
HOLDINGS, INC., a Delaware Corporation ("Corporation") and
("Officer").
WITNESSETH:
WHEREAS, Officer is an employee of Corporation and in such capacity is
performing a valuable service for the Corporation; and
WHEREAS, the Board of Directors of the Corporation adopted By-Laws (the
"By-Laws") providing for the indemnification of the officers, directors, agents
and employees of Corporation in accordance with Section 145 of The General
Corporation Law of Delaware (the "State Statute"); and
WHEREAS, such By-Laws and the State Statute specifically provide that they
are not exclusive, and thereby contemplate that contracts may be entered into
between Corporation and the members of its Board of Directors with respect to
indemnification of such officers; and
WHEREAS, Corporation has purchased and presently maintains a policy of
Directors and Officers Liability Insurance ("D&O Insurance"), covering certain
liabilities which may be incurred by its directors and officers in the
performance of their services for Corporation; and
WHEREAS, recent developments with respect to the terms and availability of
D&O Insurance (including the amount thereof, the exclusions from coverage, and
the limitations on the payment of defense costs), and with respect to the
application, amendment and enforcement of statutory and by-law indemnification
provisions generally have raised questions concerning the adequacy and
reliability of the protection afforded to officers thereby; and
WHEREAS, in order to resolve such questions, to offer to its officers the
broadest indemnity allowed by law, and thereby induce Officer to continue to
serve as an employee of Corporation, Corporation enter into this Indemnification
Agreement with Officer; and
WHEREAS, experience has shown that there is good reason to amend the terms
of such Indemnification Agreement, and the parties desire to here restate and
set forth the terms thereof, as amended;
NOW THEREFORE, the parties hereto agree as follows:
1. Continued Service. officer will continue to serve as an officer of
Corporation pursuant to its Certificate of Incorporation and By-Laws,
so long as officer is duly elected and qualified pursuant to such
instruments, or until officer tenders officer's resignation.
2. Indemnity of Officer. Corporation hereby agrees to hold harmless
and indemnify Officer to the full extent authorized or permitted by
law, including any amendment or modification thereof adopted after the
date hereof.
3. Maintenance of Insurance and Self-Insurance.
(a) Corporation represents that it presently has in force
and effect a policy of D&O Insurance providing insurance to
Officer in the amount of $10,000,000, with a deductible of
$250,000 (the "Insurance Policy"). Subject only to the
provisions of Section 3(b) hereof, Corporation hereby agrees
that, so long as officer shall continue to serve as a officer of
Corporation (or shall continue at the request of Corporation to
serve as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise) and thereafter so long as officer, or officer's
estate, shall be subject to any possible claim or threatened,
pending or completed action, suit or proceeding, whether civil,
criminal or investigative by reason of the fact that officer was
a officer of Corporation (or served in any of said other
capacities), Corporation will purchase and maintain in effect for
the benefit of officer one or more valid, binding and enforceable
policy of D&O Insurance providing, in the reasonable business
judgment of the Corporation's officers, coverage in all respects
not less favorable to Officer than that presently provided
pursuant to the Insurance Policies.
(b) Corporation shall not be required to maintain said
policy of D&O Insurance in effect if said insurance is not
reasonably available or if, in the reasonable business judgment
of the then officers of Corporation, either (i) the premium cost
for such insurance is substantially disproportionate to the
amount of coverage or (ii) the coverage provided by such
insurance is so limited by exclusions that there is insufficient
benefit from such insurance.
(c) A decision of the Corporation not to maintain in effect
said policy of D&O Insurance pursuant to the provisions of
Section 3(b) hereof, shall not terminate, reduce, diminish or
otherwise affect the obligation of the Corporation to indemnify
Officer as herein provided.
4. Additional Indemnity. Subject only to the exclusions set forth
in Section 5
hereof, Corporation hereby further agrees to hold harmless and indemnify
Officer:
(a) Against any and all expenses and costs of defense
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by Officer in
connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative (including an action by or in the right of the
Corporation) to which officer is, was or at any time becomes a
party, or is threatened to be made a party, by reason of the fact
that officer is, was or any time becomes a officer, officer,
employee or agent of Corporation, or is or was serving or at any
time serves at the request of Corporation as a officer, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise; and
(b) Otherwise to the fullest extent as may be provided to
Officer by Corporation under the non-exclusivity provisions of
the By-Laws of Corporation and State Statute.
4. Limitations on Additional Indemnity. No indemnity pursuant to
Section 4 hereto shall be paid by Corporation:
(a) if the losses to be indemnified thereunder are
indemnified to Officer either pursuant to Section 3 hereof or
pursuant to any D&O Insurance purchased and maintained by the
Corporation;
(b) in respect to remuneration paid to Officer if it shall
be determined by a final judgment or other final adjudication
that such remuneration was in violation of law;
(c) on account of any suit in which judgment is rendered
against a Officer for an accounting of profits made from the
purchase or sale by Officer of securities of Corporation pursuant
to the provisions of Section 16(b) of the Securities and Exchange
Act of 1934 and amendments thereto or similar provisions of any
federal, state or local statutory law;
(d) on account of Officer's conduct which is finally
adjudged to have been knowingly fraudulent or deliberately
dishonest;
(e) for losses by Officer pursuant to Section 174 of the
State Statute;
(f) in a final decision by a Court having jurisdiction in
the matter shall determine that such indemnification is not
lawful.
4. Continuation of Indemnity.
(a) All agreements and obligations of Corporation contained
herein shall continue during the period Officer is a director,
officer, employee or agent of Corporation (or is or was serving
at the request of Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust
or other enterprise) and shall continue thereafter so long as
Officer, or Officer's estate, shall be subject to any possible
claim or threatened, pending or completed action, suit or
proceeding; whether civil, criminal, administrative or
investigative, by reason of the fact that Officer was a officer
of corporation or serving in any other capacity referred to
herein.
(b) In the event that (i) an action, suit or proceeding
with respect to which Officer is, or, except for the existence of
D&O Insurance would be, entitled to indemnification, is
instituted or threatened against officer after the expiration of
Officer's term as an employee of Corporation, or (ii) such an
action, suit or proceeding has been earlier instituted or
threatened and continues after the expiration of Officer's term
as an employee of Corporation, Corporation shall, in addition to
the performance of all other obligations imposed upon it by this
Agreement, within 30 days after being billed therefore, pay to
Officer the sum of the rate per hour then in effect for officers
receiving compensation for special assignments, or sixty dollars
($60.00), whichever is greater, times the number of hours for all
time reasonably spent by Officer, and all out-of-pocket expenses
reasonably incurred by Officer, in connection with the defense of
such action, suit or proceeding.
4. Notification and Defense of Claim. Promptly after receipt by
Officer of notice of the threat or commencement of any action, suit or
proceeding, Officer will, if a claim in respect thereof is to be made
against Corporation under this Agreement, notify Corporation thereof;
but the omission so to notify Corporation will relieve it from any
liability which it may have to Officer under this Agreement only to
the extent the Corporation is prejudiced by such omission. With
respect to any such action, suit or proceeding as to which Officer
notifies corporation:
(a) Corporation will be entitled to participate therein at
its own expense; and
(b) Except as otherwise provided below, to the extent that
it may wish, Corporation jointly with any other indemnifying
party similarly notified will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to Officer. After
notice from Corporation to Officer of its election so to assume
the defense thereof, Corporation will not be liable to officer
under this Agreement for any legal or other expenses subsequently
incurred by Officer in connection with the defense thereof other
than reasonable costs of investigation or as otherwise provided
below. Officer shall have the right to employ counsel in such
action, suit or proceeding but the fees and expenses of such
counsel incurred after notice from Corporation of its assumption
of the defense thereof shall be at the expense of Officer unless
(i) the employment of counsel by officer has been authorized by
Corporation, (ii) Officer shall have reasonably concluded that
there may be a legal or economic conflict of interest between
Corporation and officer in the conduct of the defense of such
action or (iii) Corporation shall not in fact have employed
counsel to assume the defense of such action, or such counsel is
not reasonably satisfactory to Officer, in each of which cases
the fees and expenses of counsel shall be at the expense of
Corporation. Corporation shall not be entitled to assume the
defense of any action, suit or proceeding brought by or on behalf
of Corporation or as to which Officer shall have made the
conclusion provided for in (ii) above.
Corporation shall not be liable to indemnify Officer under this Agreement
for any amounts paid in settlement of any action or claim effected without
its written consent. Corporation shall not settle any action or claim in
any manner which would impose any penalty or limitation on Officer without
officer's written consent. Neither Corporation nor Officer will
unreasonably withhold their consent to any proposed settlement. The
reasonableness of a settlement shall be determined from the perspective of
the Officer against whom a claim is made.
4. Repayment of Expenses. Expenses incurred in defending an action,
suit or proceeding shall, on demand, be paid in advance of the final
disposition thereof upon the agreement of officer that officer shall
reimburse Corporation for all such expenses paid by Corporation in
defending any action, suit or proceeding against officer in the event
and only to the extent that it shall be ultimately determined that
Officer is not entitled to be indemnified by Corporation for such
expenses under the provisions of the By-Laws, this Agreement or
applicable law.
5. Enforcement.
(a) Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed
on Corporation hereby in order to induce officer to continue as
an officer of Corporation, and acknowledges that officer is
relying upon this Agreement in continuing in such capacity.
(b) In the event officer is required to bring any action to
enforce rights or to collect monies due under this Agreement and
is successful in such action, Corporation shall reimburse officer
for all of officer's reasonable fees and expenses in bringing and
pursuing such action.
4. Separability. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that
if any provision hereof shall be held to be invalid or unenforceable
for any reason, such invalidity or unenforceability shall not affect
the validity or enforceability of the other provisions hereof.
5. Governing Law; Binding Effect; Amendment and Termination.
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
(b) This Agreement shall be binding upon officer and upon
Corporation, its successors and assigns, and shall inure to the
benefit of Officer, officer's heirs, personal representatives and
assigns and to the benefit of Corporation, its successors and
assigns.
(c) No amendment, modification, termination or cancellation
of this Agreement shall be effective unless in writing signed by
both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.