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EXHIBIT 10.5
QUIKSILVER, INC.
FORM OF
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (the "Agreement") is made as of this
_____ day of __________ 199_, by and between QUIKSILVER, INC., a Delaware
corporation (the "Company"), and ____________________ (the "Indemnitee"), a
[director/officer] of the Company.
A. The Indemnitee is currently serving as __________ of the
Company and in such capacity renders valuable services to the Company.
B. The Company has investigated whether additional protective
measures are warranted to protect adequately its directors and officers against
various legal risks and potential liabilities to which such individuals are
subject due to their position with the Company and has concluded that additional
protective measures are warranted.
C. In order to induce and encourage highly experienced and
capable persons such as the Indemnitee to continue to serve as officers and
directors, the Board of Directors has determined, after due consideration, that
this Agreement is not only reasonable and prudent, but necessary to promote and
ensure the best interests of the Company and its stockholders.
NOW, THEREFORE, in consideration of the continued services of
the Indemnitee and as an inducement to the Indemnitee to continue to serve as a
[director/officer] of the Company, the Company and the Indemnitee do hereby
agree as follows:
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1. DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth below:
(a) "Proceeding" shall mean any threatened, pending
or completed action, suit or proceeding, whether brought in the name of the
Company or otherwise and whether of a civil, criminal, administrative or
investigative nature, by reason of the fact that the Indemnitee is or was an
officer and/or a director of the Company, or is or was serving at the request of
the Company as director, officer, employee or agent of another enterprise,
whether or not he is serving in such capacity at the time any liability or
Expense is incurred for which indemnification or advancement of Expenses is to
be provided under this Agreement.
(b) "Expenses" means, all costs, charges and expenses
incurred in connection with a Proceeding, including, without limitation,
attorneys' fees, disbursements and retainers, accounting and witness fees,
travel and deposition costs, expenses of investigations, judicial or
administrative proceedings or appeals, and any expenses of establishing a right
to indemnification pursuant to this Agreement or otherwise, including reasonable
compensation for time spent by the Indemnitee in connection with the
investigation, defense or appeal of a Proceeding or action for indemnification
for which he is not otherwise compensated by the Company or any third party;
provided, however, that the term "Expenses" includes only those costs, charges
and expenses incurred with the Company's consent, which consent shall not be
unreasonably withheld; and provided further, that the term "Expenses" does not
include the amount of damages, judgments, amounts paid in settlement, fines,
penalties or excise taxes under the Employee Retirement Income
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Security Act of 1974, as amended ("ERISA"), actually levied against the
Indemnitee or paid by or on behalf of the Indemnitee.
2. AGREEMENT TO SERVE. The Indemnitee agrees to continue to
serve as an officer of the Company at the will of the Company for so long as
Indemnitee is duly elected or appointed or until such time as Indemnitee tenders
a resignation in writing or is terminated, as an officer by the Company. Nothing
in this Agreement shall be construed to create any right in Indemnitee to
continued service as an officer of the Company.
3. INDEMNIFICATION IN THIRD PARTY ACTIONS. The Company shall
indemnify the Indemnitee in accordance with the provisions of this Section 3 if
the Indemnitee is a party to or threatened to be made a party to or otherwise
involved in any Proceeding (other than a Proceeding by or in the right of the
Company to procure a judgment in its favor), by reason of the fact that the
Indemnitee is or was an officer and/or a director of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another enterprise, against all Expenses, damages, judgments, amounts paid in
settlement, fines, penalties and ERISA excise taxes actually and reasonably
incurred by the Indemnitee in connection with the defense or settlement of such
Proceeding, to the fullest extent permitted by Delaware law; provided that any
settlement shall be approved in writing by the Company.
4. INDEMNIFICATION IN PROCEEDINGS BY OR IN THE RIGHT OF THE
COMPANY. The Company shall indemnify the Indemnitee in accordance with the
provisions of this Section 4 if the Indemnitee is a party to or threatened to be
made a party to or otherwise involved in any Proceeding by or in the right of
the Company to procure a judgment in its favor by reason of the fact that the
Indemnitee is or was an officer and/or a director of the
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Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another enterprise, against all Expenses actually
and reasonably incurred by Indemnitee in connection with the defense or
settlement of such Proceeding, to the fullest extent permitted by Delaware law.
5. CONCLUSIVE PRESUMPTION REGARDING STANDARD OF CONDUCT. The
Indemnitee shall be conclusively presumed to have met the relevant standards of
conduct required by Delaware law for indemnification pursuant to this Agreement,
unless a determination is made that the Indemnitee has not met such standards by
(i) the Board of Directors of the Company by a majority vote of a quorum thereof
consisting of directors who were not parties to such Proceeding, (ii) the
stockholders of the Company by majority vote, or (iii) in a written opinion of
independent legal counsel, the selection of whom has been approved by the
Indemnitee in writing.
6. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding or in defense of any claim, issue or matter therein, including the
dismissal of a Proceeding without prejudice, the Indemnitee shall be indemnified
against all Expenses incurred in connection therewith to the fullest extent
permitted by Delaware law.
7. ADVANCES OF EXPENSES. The Expenses incurred by the
Indemnitee in any Proceeding shall be paid promptly by the Company in advance of
the final disposition of the Proceeding at the written request of the Indemnitee
to the fullest extent permitted by Delaware law; provided that the Indemnitee
shall undertake in writing to repay such amount
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to the extent that it is ultimately determined that the Indemnitee is not
entitled to indemnification by the Company.
8. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled
under any provision of this Agreement to indemnification by the Company for some
or a portion of the Expenses, damages, judgments, amounts paid in settlement,
fines, penalties or ERISA excise taxes actually and reasonably incurred by
Indemnitee in the investigation, defense, appeal or settlement of any Proceeding
but not, however, for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Expenses, damages, judgments,
amounts paid in settlement, fines, penalties or ERISA excise taxes to which the
Indemnitee is entitled.
9. INDEMNIFICATION PROCEDURE; DETERMINATION OF RIGHT TO
INDEMNIFICATION.
(a) Promptly after receipt by the Indemnitee of
notice of the commencement of any Proceeding with respect to which the
Indemnitee intends to claim indemnification pursuant to this Agreement, the
Indemnitee will notify the Company of the commencement thereof. The omission to
so notify the Company will not relieve the Company from any liability which it
may have to the Indemnitee under this Agreement or otherwise.
(b) If a claim under this Agreement is not paid by or
on behalf of the Company within 30 days of receipt of written notice thereof,
Indemnitee may at any time thereafter bring suit in any court of competent
jurisdiction against the Company to enforce the right to indemnification
provided by this Agreement. It shall be a defense to any such action (other than
an action brought to enforce a claim for Expenses incurred in defending
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any Proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Company) that the
Indemnitee has failed to meet the standard of conduct that makes it permissible
under Delaware law for the Company to indemnify the Indemnitee for the amount
claimed. The burden of proving by clear and convincing evidence that
indemnification or advancement of Expenses are not appropriate shall be on the
Company. The failure of the directors or stockholders of the Company or
independent legal counsel to have made a determination prior to the commencement
of such Proceeding that indemnification or advancement of Expenses are proper in
the circumstances because the Indemnitee has met the applicable standard of
conduct shall not be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct.
(c) The Indemnitee's Expenses incurred in connection
with any action concerning Indemnitee's right to indemnification or advancement
of Expenses in whole or in part pursuant to this Agreement shall also be
indemnified by the Company regardless of the outcome of such action, unless a
court of competent jurisdiction determines that each of the material claims made
by the Indemnitee in such action was not made in good faith or was frivolous.
(d) With respect to any Proceeding for which
indemnification is requested, the Company will be entitled to participate
therein at its own expense and, except as otherwise provided below, to the
extent that it may wish, the Company may assume the defense thereof, with
counsel satisfactory to the Indemnitee. After notice from the Company to the
Indemnitee of its election to assume the defense of a Proceeding, the Company
will not be liable to the Indemnitee under this Agreement for any Expenses
subsequently incurred by
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the Indemnitee in connection with the defense thereof, other than reasonable
costs of investigation or as otherwise provided below. The Company shall not
settle any Proceeding in any manner which would impose any penalty or limitation
on the Indemnitee without the Indemnitee's written consent. The Indemnitee shall
have the right to employ counsel in any Proceeding, but the Expenses of such
counsel incurred after notice from the Company of its assumption of the defense
thereof shall be at the expense of the Indemnitee, unless (i) the employment of
counsel by the Indemnitee has been authorized by the Company, (ii) the
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee in the conduct of the defense of
a Proceeding, or (iii) the Company shall not in fact have employed counsel to
assume the defense of a Proceeding, in each of which cases the Expenses of the
Indemnitee's counsel shall be at the expense of the Company. The Company shall
not be entitled to assume the defense of any Proceeding brought by or on behalf
of the Company or as to which the Indemnitee has concluded that there may be a
conflict of interest between the Company and the Indemnitee.
10. LIMITATIONS ON INDEMNIFICATION. No payments pursuant to
this Agreement shall be made by the Company:
(a) to indemnify or advance Expenses to the
Indemnitee with respect to actions initiated or brought voluntarily by the
Indemnitee and not by way of defense except with respect to actions brought to
establish or enforce a right to indemnification under this Agreement or any
other statute or law or otherwise as required under Delaware law, but such
indemnification or advancement of Expenses may be provided by the Company in
specific cases if approved by the Board of Directors by a majority vote of a
quorum thereof consisting of directors who are not parties to such action;
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(b) to indemnify the Indemnitee for any Expenses,
damages, judgments, amounts paid in settlement, fines, penalties or ERISA excise
taxes for which payment is actually made to the Indemnitee under a valid and
collectible insurance policy, except in respect of any excess beyond the amount
paid under such insurance;
(c) to indemnify the Indemnitee for any Expenses,
damages, judgments, amounts paid in settlement, fines, penalties or ERISA excise
taxes for which the Indemnitee has been or is indemnified by the Company
otherwise than pursuant to this Agreement;
(d) indemnify the Indemnitee for any Expenses,
damages, judgments, amounts paid in settlement, fines or penalties sustained in
any Proceeding for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder or similar provisions of any federal, state
or local statutory law;
(e) to indemnify the Indemnitee for any Expenses,
damages, judgments, amounts paid in settlement, fines, penalties or ERISA excise
taxes resulting from Indemnitee's conduct which is finally adjudicated by a
court of competent jurisdiction (i) to have been knowingly fraudulent, a knowing
violation of law, deliberately dishonest or in violation of Indemnitee's duty of
loyalty to the Company or (ii) to have involved willful misconduct on the part
of the Indemnitee; or
(f) if a court of competent jurisdiction shall enter
a final order, decree or judgment to the effect that such indemnification or
advancement of Expenses hereunder is unlawful under the circumstances.
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11. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. The
indemnification and advancement of Expenses provided by this Agreement shall not
be deemed to limit or preclude any other rights to which the Indemnitee may be
entitled under the Certificate of Incorporation, the Bylaws, any agreement, any
vote of stockholders or disinterested directors, Delaware law, or otherwise,
both as to action in Indemnitee's official capacity and as to action in any
other capacity on behalf of the Company while holding such office.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon, and shall inure to the benefit of (i) the Indemnitee and Indemnitee's
heirs, personal representatives, executors, administrators and assigns and (ii)
the Company and its successors and assigns, including any transferee of all or
substantially all of the Company's assets and any successor or assign of the
Company by merger or by operation of law.
13. SEPARABILITY. Each provision of this Agreement is a
separate and distinct agreement and independent of the other, 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. To the extent required, any
provision of this Agreement may be modified by a court of competent jurisdiction
to preserve its validity and to provide the Indemnitee with the broadest
possible indemnification and advancement of Expenses permitted under Delaware
law. If this Agreement or any portion thereof is invalidated on any ground by
any court of competent jurisdiction, then the Company shall nevertheless
indemnify Indemnitee as to Expenses, damages, judgments, amounts paid in
settlement, fines, penalties or ERISA excise taxes with respect to any
Proceeding to the full extent permitted by any applicable portion of this
Agreement that shall
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not have been invalidated or by any applicable provision of Delaware law or the
law of any other jurisdiction.
14. HEADINGS. The Headings used herein are for convenience
only and shall not be used in construing or interpreting any provision of the
Agreement.
15. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
16. AMENDMENTS AND WAIVERS. No amendment, waiver,
modification, termination or cancellation of this Agreement shall be effective
unless in writing and signed by the party against whom enforcement is sought.
The indemnification rights afforded to the Indemnitee hereby are contract rights
and may not be diminished, eliminated or otherwise affected by amendments to the
Company's Certificate of Incorporation, Bylaws or agreements, including any
directors' and officers' liability insurance policies, whether the alleged
actions or conduct giving rise to indemnification hereunder arose before or
after any such amendment. No waiver of any provision of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof, whether or
not similar, nor shall any waiver constitute a continuing waiver.
17. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each party and delivered to the other.
18. NOTICES. All notices and communications shall be in
writing and shall be deemed duly given on the date of delivery if personally
delivered or the date of receipt or refusal indicated on the return receipt if
sent by first class mail, postage prepaid, registered
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or certified, return receipt requested, to the following addresses, unless
notice of a change of address in duly given by one party to the other, in which
case notices shall be sent to such changed address:
If to the Company:
Quiksilver, Inc.
1740 Monrovia
Costa Mesa, CA 92627
Attention: Secretary
If to Indemnitee:
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19. SUBROGATION. In the event of any payment under this
Agreement to or on behalf of the Indemnitee, the Company shall be subrogated to
the extent of such payment to all of the rights of recovery of the Indemnitee
against any person, firm, corporation or other entity (other than the Company)
and the Indemnitee shall execute all papers requested by the Company and shall
do any and all things that may be necessary or desirable to secure such rights
for the Company, including the execution of such documents necessary or
desirable to enable the Company to effectively bring suit to enforce such
rights.
20. SUBJECT MATTER AND PARTIES. The intended purpose of this
Agreement is to provide for indemnification and advancement of Expenses, and
this Agreement is not intended to affect any other aspect of any relationship
between the Indemnitee and the Company and is not intended to and shall not
create any rights in any person as a third party beneficiary hereunder.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
"INDEMNITEE"
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"COMPANY"
QUIKSILVER, INC., a Delaware corporation
By:
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Its:
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