Exhibit 10.1
USANA Health Sciences, Inc.
DIRECTOR INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made and
entered into as of [_____________], between USANA Health Sciences, Inc., a Utah
corporation (the "Company") and [___________] ("Director").
WHEREAS Director performs valuable Services for the Company as
a member of the Board of Directors; and
WHEREAS the Board of Directors and the shareholders of the
Company have approved, and the Company has filed with the State of Utah Amended
and Restated Articles of Incorporation that provide that, to the maximum extent
authorized by Sections 901-909 of the Act, the Company will indemnify its
directors and officers against certain Liabilities and Expenses in connection
with a Proceeding in which its directors or officers are made a Party by reason
of their Services to the Company, including the advancement of such Expenses to
such directors or officers prior to the final disposition of such Proceeding;
WHEREAS the Board of Directors has approved the Bylaws that
provide that, to the maximum extent authorized by Sections 901-909 of the Act,
the Company will indemnify its directors and officers against certain
Liabilities and Expenses in connection with a Proceeding in which directors or
officers are made a Party by reason of their Services to the Company, including
the advancement of such Expenses to such directors or officers prior to the
final disposition of such Proceeding;
WHEREAS Section 909 of the Act and the Bylaws permit
contracts, such as this Agreement, between the Company and the directors or
officers of the Company with respect to such indemnification and advancement of
Expenses;
WHEREAS the Company desires to induce Director to serve or to
continue to serve as a member of the Board of Directors by entering into this
Agreement, which clarifies and augments: (i) Director's right of indemnification
by the Company for Liabilities and Expenses in connection a Proceeding in which
Director is made a Party as a result of Director's Services to the Company; and
(ii) Director's right to advancement of Expenses in connection with such a
Proceeding;
WHEREAS Director is relying on this Agreement as an inducement
to his serving or continuing to serve as a member of the Board of Directors of
the Company;
WHEREAS, pursuant to Section 908 of the Act, the Company may
purchase and maintain D&O Insurance that covers these Liabilities and Expenses
of Director; and
WHEREAS the parties to this Agreement intend the provisions of
this Agreement to be consistent with the provisions of the Act;
NOW, THEREFORE, in consideration of Director's Services, the
parties hereto agree as follows:
1. Definitions
For purposes of this Agreement:
a. "Act" means the Revised Business Corporation Act of the State
of Utah, as amended.
b. "Agreement" means this Indemnification Agreement between the
Company and the Director.
c. "Articles" means the Amended and Restated Articles of
Incorporation of the Company, as amended.
d. "Board of Directors " means the Company's board of directors
that has been established to manage the business and affairs
of the Company under the Act.
e. "Bylaws" means the Amended and Restated Bylaws of the Company,
as amended.
f. "Company" means USANA Health Sciences, Inc., a Utah
corporation.
g. "D&O Insurance" means a policy of insurance that is purchased
by the Company and that cover certain liabilities and expenses
that may be incurred by the Company and/or its directors and
officers in connection with their services to the Company or,
at the Company request, to another entity.
h. "Decision-Maker" means one of the following persons or
entities that makes a determination under the Act and under
this Agreement whether Director is entitled to either
indemnification of Liabilities and Expenses and/or advancement
of Expenses in connection with a Proceeding, as provided in
Section 6(b) below: (i) the Board of Directors (or a special
committee thereof), by majority vote, as provided in the Act;
(ii) the Company's Special Legal Counsel, as provided in the
Act; or (iii) the shareholders of the Company, by a majority
vote (excluding those shares held or controlled by Director).
i. "Director" means the person who is a signatory to this
Agreement, and who is serving the Company as a director of the
Company. Unless the context otherwise requires, "Director"
includes the estate or personal representative of the
Director.
j. "Exchange Act" means the U.S. Securities and Exchange Act of
1934, as amended.
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k. "Expenses" means: (i) all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service
fees and all other disbursements or expenses that are actually
incurred by Director, or on his behalf, in connection with
prosecuting, defending, preparing to prosecute or defend,
investigating, participating, or being or preparing to be a
witness in a Proceeding; (ii) and any federal, state, local or
foreign taxes imposed on Director as a result of the actual or
deemed receipt of any payments under this Agreement.
"Expenses" do not include "Liabilities."
l. "Liabilities" means any liabilities incurred by Director, or
on his behalf, with respect to a Proceeding to pay a judgment,
settlement, penalty, fine (including an excise tax assessed
with respect to an employee benefit plan), or other similar
payment, including, but not limited to, liabilities under the
Securities Act or the Exchange Act. "Liabilities" do not
include "Expenses."
m. "Party" means an individual who was, is, or is threatened to
be named as a defendant in a Proceeding or who is a respondent
in a Proceeding.
n. "Payment" means a payment by the Company to Director of
either: (i) the amount of Liabilities or Expenses that a court
or the Decision-Maker has determined must be indemnified and
paid to Director under the Act and this Agreement; or (ii) the
amount of Expenses that the Decision-Maker has determined must
be advanced and paid to Director under the Act and this
Agreement.
o. "Proceeding" means any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution
mechanism, inquiry, hearing or any other such proceeding,
whether civil, criminal, administrative, or investigative, to
which Director is made a Party by reason of Director's
Services.
p. "Securities Act" means the U.S. Securities Act of 1933, as
amended.
q. "Services" means (i) Director's service to the Company as a
member of the Board of Directors; (ii) during the time that
Director is a member of the Board of Directors, Director's
service, at the Company's request, as a director, officer,
partner, trustee, employee, fiduciary, or agent of another
corporation or entity (other than the Company), including any
employee benefit plan.
r. "Special Legal Counsel" means "special legal counsel" of the
Company, as defined in Section 906(2)(c) of the Act, that has
been appointed to be a Decision-Maker.
2. Indemnification of Director by the Company
Subject to the limitations set forth in the Act and in this Agreement,
the Company hereby agrees to hold harmless and indemnify Director to the full
extent authorized or permitted by the Act, the Articles, and the Bylaws. In
furtherance of the foregoing indemnification, and without limiting the
generality thereof:
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a. Proceedings Other Than Proceedings by or in the Right of the
Company. Director shall be entitled to the rights of
indemnification provided in this Section l(a) if, by reason of
Director's Services, Director is, or is threatened to be made,
a Party to a Proceeding other than a Proceeding by or in the
right of the Company (which is addressed in Section 1(b)
below). Pursuant to this Section 1(a), the Company shall
indemnify Director against all Liabilities and Expenses that
have been incurred by Director in connection with such
Proceeding, or in connection with any claim, issue, or matter
therein, if Director acted in good faith and in a manner that
Director reasonably believed to be in or not opposed to the
best interests of the Company; provided, however, that, with
respect to any criminal Proceeding, Director must additionally
have had no reasonable cause to believe that his conduct was
unlawful.
b. Proceedings by or in the Right of the Company. Director shall
be entitled to the rights of indemnification provided in this
Section 1(b) if, by reason of Director's Services, Director
is, or is threatened to be made, a Party to a Proceeding that
has been brought by or in the right of the Company (not by
another person, as provided in Section 1(a) above). Pursuant
to this Section 1(b), the Company shall indemnify Director
against all Expenses (and not Liabilities) that have been
incurred by Director in connection with such Proceeding, or in
connection with any claim, issue, or matter therein, if
Director acted in good faith and in a manner that Director
reasonably believed to be in or not opposed to the best
interests of the Company.
c. Sole Limit on Indemnification. The Company shall not be
required to indemnify Director pursuant to this Agreement only
if it is finally determined by a court or by a Decision-Maker,
under the procedures and subject to the presumptions that are
set forth in Sections 6 and 7 hereof, to be unlawful to do so
under Section 902 of the Act, either because: (i) Director did
not meet the standard of conduct set forth above in Sections
1(a) and 1(b); or (ii) if Director is judged to be liable in a
Proceeding because he or she derived an improper personal
benefit (whether or not in connection with Director's
Services).
3. Indemnification for Expenses When Director is Wholly or Partly
Successful
Notwithstanding any other provision of this Agreement, to the extent
that Director is successful, on the merits or otherwise, in the defense of any
Proceeding, or in defense of any claim, issue, or matter therein, the Company
shall indemnify Director to the maximum extent permitted by law against all
Expenses that have incurred by Director in connection with such Proceeding. If
Director is not wholly successful in such Proceeding, but is successful, on the
merits or otherwise, with respect to one or more but less than all of the
claims, issues, or matters therein, the Company shall indemnify Director against
all Expenses that have been incurred by Director in connection with each
successfully resolved claim, issue, or matter. For purposes of this Section 3,
and without limitation, the termination of any claim, issue, or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue, or matter, whether such dismissal was
for substantive or procedural reasons.
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4. Contribution in the Event of Joint Liability by Director and by the
Company
Subject to all the limitations of the Act, this Agreement, and the
further provisions of this Section 4 below, if the Company is jointly liable
with Director (or would be liable, if joined in such Proceeding), the Company
shall pay the entire amount of Liabilities and Expenses relating to such
Proceeding, without requiring Director to contribute to such payment.
Furthermore, the Company hereby waives and relinquishes any right of
contribution it may have against Director in such instance. The Company shall
not enter into any settlement of any such Proceeding in which the Company is
jointly liable with Director (or would be liable, if joined in such Proceeding)
unless such settlement provides for a full and final release of all claims that
have been asserted against Director.
a. Proportionate Liability in Certain Instances. Without
diminishing or impairing the obligations of the Company set
forth in the preceding paragraph, if, for any reason, Director
shall elect or be required to pay all or any portion of any
liabilities and/or expenses (such as those described in the
definitions of "Liabilities" and "Expenses" of Director
herein) in connection with any Proceeding in which the Company
is jointly liable with Director (or would be, if joined in
such Proceeding), the Company shall contribute to the amount
of such liabilities and/or expenses in proportion to the
relative benefits received by the Company, together with all
directors, officers, and/or employees of the Company (other
than Director) who are jointly liable with Director (or would
be liable, if joined in such Proceeding), on the one hand, and
the benefits received by the Director, on the other hand, from
the transaction or event from which such Proceeding arose;
provided, however, that the proportion determined on the basis
of relative benefit may, to the extent necessary to conform to
law, be further adjusted by reference to the relative fault of
the Company and all directors, officers, or employees of the
Company (other than Director) who are jointly liable with
Director (or would be liable, if joined in such Proceeding),
on the one hand, and the fault of Director, on the other hand,
in connection with the transaction or event from which such
Proceeding arose, as well as any other equitable
considerations which the Act or the laws of the State of Utah
may require to be considered. The relative fault of the
Company and all directors, officers, or employees of the
Company (other than Director) who are jointly liable with
Director (or would be liable, if joined in such Proceeding),
on the one hand, and the fault of Director, on the other hand,
shall be determined by reference to, among other things, the
degree to which their actions were motivated by intent to gain
personal profit or advantage, the degree to which their
liability is primary or secondary, and the degree to which
their conduct is active or passive.
b. Claims of Contribution by Other Directors, Officers,
Employees, or Agents of the Company. The Company hereby agrees
to fully indemnify and hold Director harmless from any claims
of contribution which may be brought by directors, officers,
employees, or agents of the Company (other than Director), who
may be jointly liable with Director in any action, suit, or
proceeding in which such directors, officers, employees, or
agents of the Company have been named as parties by reason of
their services to the Company in such capacities.
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5. Advancement of Expenses.
a. Request for Advancement by Director. Notwithstanding any other
provision of this Agreement, if Director incurs Expenses in
connection with any Proceeding by reason of Director's
Services, Director may, from time to time, make a request to
the Company that the Company advance such Expenses to
Director, and the Company may advance such Expenses to
Director, whether prior to or after the final disposition of
such Proceeding, pursuant to the procedures set forth in this
Section 5 below. Director shall furnish to the Company a
written affirmation of his good faith belief that he or she
has met the applicable standard of conduct for such
indemnification under Section 902 of the Act. Such statement
or statements shall reasonably evidence the Expenses incurred
by Director and shall include or be preceded or accompanied by
an undertaking by or on behalf of Director to repay any such
advanced Expenses if it shall ultimately be determined by a
court or by a Decision-Maker that Director is not entitled to
be indemnified against such Expenses because he or she did not
meet the applicable standard of conduct for such
indemnification under Section 902 of the Act. Such undertaking
by Director shall be an unlimited general obligation of
Director, shall be unsecured, and the Company must accept such
undertaking without reference to Director's financial ability
to make such repayment.
b. Determination of Advancement and Payment. The Decision-Maker
shall make a determination of whether Director is entitled to
advancement of Expenses and shall pay such amount to Director
pursuant to the deadlines, procedures, and the presumptions
contained in Section 6 below. All advances of Expenses by the
Company to Director shall be interest free.
c. Repayment of Advanced Expenses by Director. Notwithstanding
the foregoing, the obligation of the Company to advance
Expenses pursuant to this Section 5 shall be subject to the
condition that, if, when and to the extent that the Company
determines that Director would not be permitted to be
indemnified under applicable law, Director shall reimburse the
Company within thirty (30) days of such determination for all
such amounts theretofore advanced to Director by the Company;
provided, however, that if Director has commenced or
thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that Director should be
indemnified under applicable law, any determination made by
the Company that Director would not be permitted to be
indemnified under applicable law shall not be binding and
Director shall not be required to reimburse the Company for
any advance of Expenses until a final judicial determination
is made with respect thereto (and as to which all rights of
appeal therefrom have been exhausted or have lapsed).
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6. Procedures and Presumptions for Payments to Director
It is the intent of this Agreement to secure for Director rights for
the advancement of Expenses and for indemnification for Liabilities and Expenses
that are as favorable as may be permitted under the Act and public policy of the
State of Utah. Accordingly, the parties agree that the following procedures and
presumptions shall apply in the event of any question as to whether Director is
entitled to indemnification under this Agreement:
a. Request by Director for Payment. Director shall submit to the
Company a written request for Payment. Such request shall be
accompanied by such documentation and information that is
reasonably available to Director and that is relevant to
whether and to what extent Director is entitled to Payment.
The Secretary of the Company shall, promptly upon receipt of
such a request, advise the Board of Directors in writing that
Director has requested such Payment.
b. Determination of Right to Payment by Decision-Maker. Upon
Director's request for Payment, the Company shall make a
determination of whether Director is entitled to a Payment in
the specific case. Such determination shall be made by one of
the following three Decision-Makers, with Director having the
sole right to select which one of these three Decision-Makers
shall make such determination: (i) by a majority vote of the
members of the Board of Directors or a special committee
thereof), as provided in the Act; (ii) by "Special Legal
Counsel," as defined in the Act; or (iii) by a majority vote
of the holders of the Company's voting stock (except for those
shares held or controlled by Director), as provided in the
Act. In making this determination, the Decision-Maker shall
act reasonably and in good faith.
c. Fees of Special Legal Counsel. The Company shall pay any and
all reasonable fees and expenses incurred by such Special
Legal Counsel in connection with such counsel's acting as
such.
d. Presumptions. In making a determination whether Director is
entitled to receive a Payment, the Decision-Maker shall
presume the following, and anyone seeking to overcome these
presumptions shall have the burden of proof by clear and
convincing evidence:
i. Director has met the standard of conduct in Section
902 of the Act and is entitled to indemnification
under this Agreement;
ii. Director has reasonably relied on information,
opinions, reports, or statements, including financial
statements and other financial data, that have been
delivered to him by the Company's officers,
employees, legal counsels, public accountants, other
professional advisors, or by a committee of the Board
of Directors on which Director is not a member; and
iii. The knowledge and/or actions, or failure to act, of
any other Director of the Company or of any other
officer, employee, or agent of the Company are not
the knowledge and/or actions (or failure to act) of
Director.
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e. Timing of Determination. If the Board of Directors or Special
Legal Counsel is to make the determination of whether Director
is entitled to Payment, such determination shall be made
within twenty-one (21) days after receipt by the Company of
Director's request therefor. If, however, such determination
is to be made by the shareholders of the Company, then, within
fifteen (15) days after receipt by the Company of the
Director's request therefor, the Board of Directors (or a
committee thereof) shall resolve to submit such determination
to the shareholders of the Company for their consideration
either at (i) at an annual meeting of the shareholders that is
scheduled to be held within seventy-five (75) days after the
Company's receipt of Director's request for Payment; or (ii)
at a special meeting of the shareholders of the Company that
is scheduled to be held within sixty (60) days from the date
on which the Board of Directors calls such special meeting.
f. Timing and Method of Payment. Once the Decision-Maker has made
a determination that Director is entitled to a Payment, the
Company shall make such Payment to Director within seven (7)
days following the date on which such determination is made.
The Company shall make such Payment in such currency, by such
method of payment (check or wire transfer), and to such
person, all of which Director shall designate. By way of
example, if Director has incurred legal fees in connection
with a Proceeding, Director may instruct the Company to pay
such fees directly to Director's legal counsel, without the
need for Director to have paid such fees first.
g. Director's Cooperation. Director shall cooperate with the
Decision-Maker in making the determination of whether Director
is entitled to Payment. Such cooperation shall include
Director's providing, upon reasonable advance request, any
documentation or information which is not privileged or not
otherwise protected from disclosure, which is reasonably
available to Director, and which is relevant to making a
determination of whether and to what extent Director is
entitled to such Payment.
h. Costs and Expenses by Director in Making the Determination.
Any costs or expenses (including attorneys' fees and
disbursements) incurred by Director in so cooperating with the
Decision-Maker shall be borne by the Company, and the Company
shall indemnify Director for all such expenses, regardless of
whether Director is determined to be entitled or not to such
Payment.
i. Presumption of Success on the Merits or Otherwise. The Company
acknowledges that a settlement or other disposition of a
Proceeding--short of final judgment--may be successful if it
permits a party to avoid expense, delay, distraction,
disruption and uncertainty. In the event that any Proceeding
to which Director is a Party is resolved in any manner other
than by adverse judgment against Director (including, without
limitation, settlement of such Proceeding with or without
payment of money or other consideration), it shall be presumed
that Director has been successful on the merits or otherwise
in such Proceeding. Anyone seeking to overcome this
presumption shall have the burden of proof and the burden of
persuasion by clear and convincing evidence. The termination
of a Proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not, of
itself, be determinative that Director did not meet the
standard of conduct that would entitle him to indemnification
hereunder.
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7. Remedies of Director
a. Remedies. In the event that (i) the Decision-Maker fails to
make a determination of whether Director is entitled to a
Payment within the required time, as set forth in Section 7
above, (ii) the Decision-Maker determines that Director is not
entitled to a Payment under the Act and this Agreement, (iii)
the Company fails to make a required Payment to Director
within the required time, as set forth in Section 7 above,
Director shall be entitled to an adjudication in an
appropriate court of the State of Utah, or in any other court
of competent jurisdiction, of his entitlement to such Payment.
Director shall commence such proceeding, seeking an
adjudication thereof within 180 days following the date on
which Director first has the right to commence such proceeding
pursuant to this Section 7(a). The Company shall not oppose
Director's right to seek any such adjudication.
b. Effect of Adverse Determination. In the event that the
Decision-Maker shall have determined that Director is not
entitled to a Payment, any judicial proceeding commenced
pursuant to this Section 7 shall be conducted in all respects
as a de novo trial on the merits, and Director shall not be
prejudiced by reason of the adverse determination by the
Decision-Maker.
c. Effect of Positive Determination. If the Decision-Maker shall
have determined that Director is entitled to indemnification,
the Company shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section 7,
absent a prohibition of such indemnification under the Act.
d. Expenses of Enforcement. In the event that Director, pursuant
to this Section 7, seeks a judicial adjudication of his rights
under, or to recover damages for breach of, this Agreement, or
to recover under any D&O Insurance maintained by the Company,
the Company shall pay on his behalf, in advance, any and all
expenses (of the types described in the definition of
"Expenses" above) that are actually incurred by Director, or
on his behalf, in such judicial adjudication, regardless of
whether Director ultimately is determined to be entitled to
such Payment or such recovery of proceeds from such D&O
Insurance.
e. The Company is Bound. The Company shall be precluded from
asserting in any judicial proceeding commenced pursuant to
this Section 7 that the procedures and presumptions of this
Agreement are not valid, not binding, or not enforceable, and
the Company shall stipulate in any such court that the Company
is bound by all the provisions of this Agreement.
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8. Non-Exclusivity; Survival of Rights; Superior Rights; D&O Insurance;
Subrogation
a. Rights are Non-Exclusive and Cumulative. The rights of
indemnification as provided by this Agreement shall not be
deemed exclusive of any other rights to which Director may at
any time be entitled under applicable law, the Articles, the
Bylaws, any agreement, a vote of stockholders, a resolution of
the Board of Directors, or otherwise. Every other right or
remedy to which Director may be entitled shall be cumulative
and in addition to every other right and remedy given to
Director hereunder or now or hereafter existing at law, in
equity, or otherwise. The assertion or employment by Director
of any right or remedy hereunder or otherwise shall not
prevent the concurrent assertion or employment by Director of
any other right or remedy.
b. Survival of Rights. No amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict
any right of Director under this Agreement in respect of any
action taken or omitted by Director in his Services prior to
such amendment, alteration, or repeal.
c. Superior Rights. To the extent that a change in the Act,
whether by statute or judicial decision, permits greater
indemnification than would be afforded currently under the
Articles, the Bylaws, and under this Agreement, it is the
intent of the parties hereto that Director shall enjoy by this
Agreement the greater benefits so afforded by such change.
d. D&O Insurance. The Company shall maintain D&O Insurance that
covers the services of directors and officers to the Company
or, at the Company's request, to another entity (including the
Services of Director). Such D&O Insurance shall provide
coverage that is commercially reasonable, considering the
Company's size, type of business, and claims history. Such
policy of D&O Insurance shall protect Director to the maximum
extent that any other director or officer is protected
thereunder. If a claim arises under any such policy of D&O
Insurance, the Company will make demands for such insurance in
accordance with the requirements of such policy.
e. Subrogation. In the event the Company makes any Payment to
Director, the Company shall be subrogated to the extent of
such Payment to all of the rights of recovery that Director
may have under the Company's D&O Insurance. Director shall
execute all documents and shall take all action that may be
necessary for the Company to secure such rights of subrogation
to bring suit to enforce such rights.
9. No Indemnification. Notwithstanding any other provision of this
Agreement, Director shall not be entitled to a Payment under this Agreement in
the following instances: (i) for Liabilities and/or Expenses for which Director
has actually received reimbursement under any insurance policy, contract,
agreement, or otherwise; (ii) for expenses and the payment of profits arising
from the purchase and sale by Director of securities in violation of Section
16(b) of the Securities Exchange Act of 1934, as amended or any similar
successor statute; (iii) for Liabilities and Expenses with respect to any
action, suit, or proceeding that is brought by Director against the Company
and/or it directors, officers, employees, or agents; provided, however, that
Director shall be entitled to a Payment under this Agreement with respect to
such action, suit, or proceeding that is brought by Director if either (a) the
bringing of such action, suit, or proceeding or the making of such claim is
approved by the Board of Directors; or (b) such action, suit, or proceeding or
such claim is being brought by Director to assert, interpret, or enforce
Director's rights under this Agreement.
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10. Duration of Agreement. All agreements and obligations of the Company
contained in this Agreement shall continue during the period in which Director
is a member of the Board of Directors or an officer and shall continue
thereafter so long as Director shall be subject to any Proceeding (or any
proceeding commenced by Director under Section 7 hereof) by reason of Director's
Services, whether or not Director is providing Services at the time any
Liability or Expense is incurred by Director in connection with such Proceeding
(or any proceeding commenced by Director under Section 7 hereof).
11. Indemnification for Expenses as a Witness. Notwithstanding any other
provision of this Agreement, to the extent that Director is called to be a
witness, in connection with Director's Services, in any action, suit, or
proceeding that involves the Company and/or its directors, officers, employee,
and/or agents and to which Director is not a party, the Company shall indemnify
Director against all Expenses incurred by Director, or on his behalf, in
connection therewith.
12. General Provisions
a. Severability. If any provision or provisions of this Agreement
shall be held by a court of competent jurisdiction to be
invalid, void, illegal or otherwise unenforceable for any
reason whatsoever: (a) the validity, legality, and
enforceability of the remaining provisions of this Agreement
(including each portion of any section of this Agreement
containing any such provision held to be invalid, void,
illegal, or unenforceable that is not itself invalid, void,
illegal, or unenforceable) shall not in any way be affected or
impaired thereby and shall remain enforceable to the fullest
extent permitted by law; and (b) to the fullest extent
possible, the provisions of this Agreement (including, without
limitation, each portion of any section of this Agreement
containing any such provision that is held to be invalid,
void, illegal, or unenforceable that is not itself invalid,
void, illegal, or unenforceable) shall be construed so as to
give effect to the intent manifested thereby. Without limiting
the generality of the foregoing, this Agreement is intended to
confer upon Director rights to indemnification (including
advancement of expenses) to the fullest extent permitted by
applicable laws. In the event any provision hereof conflicts
with any applicable law, such provision shall be deemed
modified, consistent with the aforementioned intent, to the
extent necessary to resolve such conflict.
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b. Modification and Waiver. No supplement, modification,
termination, or amendment of this Agreement shall be binding
on either party hereto unless such change shall have been
executed in writing by each of the parties hereto. No waiver
of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a
continuing waiver.
c. Notice By Director. Director agrees promptly to notify the
Company in writing upon being served with or otherwise
receiving any summons, citation, subpoena, complaint,
indictment, information, or other document relating to any
Proceeding or matter which may give rise to his rights of
indemnification (including advancement of expenses) hereunder.
d. Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be
deemed to have been duly given if it is (i) delivered by hand
to the party to whom said notice or other communication is
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:
If to Director, to the address set forth below Director's
signature hereto.
If to the Company, to:
USANA Health Sciences, Inc.
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Attention: President
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.
e. 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.
f. Headings. The headings of the 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.
g. 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 Utah, without application of the
rules of the State of Utah with respect to conflict of laws.
h. Successors and Assigns. This Agreement shall be binding upon
the Company and upon its successors and assigns. This
Agreement shall be binding upon Director and upon his estate
or personal representative. Neither party hereto may assign
this Agreement to a third party without the consent of the
other party hereto.
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i. Construction of this Agreement. The recitals to this Agreement
are incorporated in this Agreement by this reference.
References in this Agreement to the masculine gender shall
include reference to the feminine gender. References in the
singular shall include reference to the plural, as
appropriate. The use of the words "include" or "including" or
similar words in this Agreement shall mean that the items
following the words "include" or "including" are not an
exhaustive list of the items that precede these words, but are
rather some (but not all) of the examples thereof.
j. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties
hereto with respect to the subject matter hereof.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK AND IS FOLLOWED BY THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
USANA HEALTH SCIENCES, INC.
By: ________________________________________
Name:
Title:
DIRECTOR
Signature:__________________________________
Name:
Address:
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