DIRECTORS and OFFICERS
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is entered into as of
the ___ day of ____________, 199___, between Del Webb Corporation, a Delaware
corporation (the "Company"), and _____________, a(n) __________________ of the
Company (the "Indemnitee").
RECITALS
WHEREAS, it is essential to the Company to retain and attract
as directors and officers the most capable persons available;
WHEREAS, Indemnitee is a director or officer of the Company;
WHEREAS, both the Company and Indemnitee recognize the
increased risk of litigation and other claims being asserted against directors
and officers of public companies in today's environment;
WHEREAS, the Amended and Restated Certificate of Incorporation
("Certificate of Incorporation") of the Company requires the Company to
indemnify and advance expenses to its directors and officers to the fullest
extent permitted by law and the Indemnitee has been serving and continues to
serve as a director or officer of the Company in part in reliance on such
Certificate of Incorporation;
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to enhance Indemnitee's continued
service to the Company in an effective manner and Indemnitee's reliance on the
Certificate of Incorporation, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by the Certificate of
Incorporation will be available to Indemnitee (regardless of, among other
things, any amendment to or revocation of such or any change in the composition
of the Company's Board of Directors or acquisition transaction relating to the
Company), the Company wishes to provide in this Agreement for the
indemnification of, and the advancing of expenses to, Indemnitee to the fullest
extent (whether partial or complete) permitted by law and as set forth in this
Agreement, and, to the extent insurance is maintained, for the continued
coverage of Indemnitee under the Company's directors' and officers' liability
insurance policies; and
THEREFORE, in consideration of Indemnitee continuing to serve the
Company directly or, at its request, with another enterprise, and intending to
be legally bound hereby, and for other good and valuable consideration, the
adequacy of which is hereby acknowledged, the parties agree as follows:
Indemnification Agreement Page - 2
1. Certain Definitions:
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(a) Action: any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether conducted
by the Company or any other party, that Indemnitee in good
faith believes might lead to the institution of any such
action, suit or proceeding, whether civil, criminal,
administrative, investigative or other.
(b) Change in Control: shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended), other than a
trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock
of the Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company represent ing 20% or more of the
total voting power represented by the Company's then
outstanding Voting Securities (as defined below), or (ii)
during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board of Directors
of the Company and any new director whose election by the
Board of Directors or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for
any reason to constitute a majority thereof, or (iii) the
stockholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than a merger
or consolidation which would result in the Voting Securities
of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into Voting Securities of the surviving
entity) at least 80% of the total voting power represented by
the Voting Securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or
the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of (in one transaction or a series
of transactions) all or substantially all the Company's
assets.
(c) Derivative Action: an Action by or in the right of the
Company.
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(d) Expenses: include reasonable attorneys' fees, court costs,
deposition costs, court reporter fees, travel and all other
costs, expenses and obligations actually paid to another or
incurred in connection with investigating the facts underlying
the Action, preparing to defend and defending the Action,
preparation for and participating in the Action as a witness,
or any of the foregoing expenses incurred on appeal, or any
other reasonable expenses incurred by Indemnitee in
participating in any Indemnifiable Action or Indemnifiable
Derivative Action.
(e) Indemnifiable Action or Indemnifiable Derivative Action: any
Action or Derivative Action arising out of or relating,
directly or indirectly, to the fact that Indemnitee is or was
a Director, Indemnitee, employee, agent or fiduciary of the
Company, or a subsidiary of the Company, or is or was serving
at the request of the Company as a Director, Indemnitee,
employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or
other enterprise, or by reason of anything done or not done by
Indemnitee in any such capacity.
(f) Potential Change in Control: shall be deemed to have occurred
if (i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in
Control; (ii) any person (including the Company) publicly
announces an intention to take or to consider taking actions
which if consummated would constitute a Change in Control;
(iii) any person other than a trustee or other fiduciary
holding securities under an employee benefit plan of the
Company or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company who is
or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 10% or more of the
combined voting power of the Company's then outstanding Voting
Securities, increases such person's beneficial ownership of
such securities by five percentage points (5%) or more over
the percentage so owned by such person; or (iv) the Board of
Directors adopts a resolution to the effect that, for purposes
of this Agreement, a Potential Change in Control has occurred.
(g) Voting Securities: any securities of the Company which vote
generally in the election of directors.
2. No Pending Actions. Indemnitee represents to Company that to
Indemnitee's actual knowledge, (i) there is no Indemnifiable Action
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or Indemnifiable Derivative Action involving Indemnitee as of the date of this
Agreement and (ii) no facts exist that may form the basis for such Action
involving Indemnitee.
3. Indemnification For Actions Other Than Derivative Actions. In the
event Indemnitee was, is, or becomes a party to or a witness or other
participant in, or is threatened to be made a party to or witness or other
participant in, an Indemnifiable Action other than an Indemnifiable Derivative
Action, the Company shall, subject to the provisions of this Agreement,
indemnify Indemnitee to the fullest extent permitted by law against any and all
Expenses, judgments, fines, penalties, and amounts paid in settlement of such
Action.
4. Indemnification For Derivative Actions.
(a) Basic Indemnification. In the event Indemnitee was, is, or
becomes a party to or a witness or other participant in, or is threatened to be
made a party to or witness or other participant in an Indemnifiable Derivative
Action, the Company shall, subject to the provisions of this Agreement,
indemnify Indemnitee to the fullest extent permitted by law against any and all
Expenses, but not judgments, fines, or, except as set forth below, amounts paid
in settlement of such Derivative Action.
(b) Adjudication of Liability in Derivative Actions.
Notwithstanding Paragraph 4(a), no indemnification shall be made in respect of
any claim, issue, or matter as to which Indemnitee shall have been adjudged (by
final judicial determination from which there is no further right to appeal) to
be liable to the Company unless and only to the extent that the court in which
such Derivative Action was brought shall determine upon application by
Indemnitee that despite the adjudication of liability and in view of all
circumstances of the case, such person is fairly and reasonably entitled to
indemnification which such court shall deem proper.
(c) Settlement of Derivative Actions. Notwithstanding
Paragraph 4(a), the court in which such Derivative Action was brought may
determine upon application of Indemnitee that, in view of all circumstances of
the case, indemnity for amounts paid in settlement is proper and may order
indemnity for the amounts so paid in settlement and for the Expenses actually
and reasonably paid in connection with such application, to the extent the court
deems proper.
5. Limits on Indemnification. Except as stated in Paragraph 6, there
shall be no indemnification pursuant to this Indemnification Agreement:
Indemnification Agreement Page - 5
(a) to the extent that payment for the same claims or amounts
are actually made to the Indemnitee under a valid and collectible insurance
policy; provided, however, that if it should subsequently be determined that the
Indemnitee is not legally entitled to retain any such payment, the restriction
on indemnification pursuant to this subparagraph (a) shall no longer apply;
(b) to the extent that the Indemnitee is indemnified or
receives a recovery for the same claims or amounts otherwise than pursuant to
this Indemnification Agreement; provided, however, that if it should
subsequently be determined that the Indemnitee is not legally entitled to retain
any such recovery, the restriction on indemnification pursuant to this
subparagraph (b) shall no longer apply;
(c) on account of any violation of Section l6(b) of the
Securities Exchange Act of l934, as amended, and rules promulgated thereunder;
(d) on account of any violation of Section l0(b) of the
Securities Exchange Act of l934, as amended (the "Exchange Act"), and any rules
promulgated thereunder, or similar state law, to the extent that such violation
is based on (i) the purchase or sale of a security by Indemnitee or a person
affiliated with Indemnitee while Indemnitee is in possession of material
nonpublic information about the Company, or (b) the communication of material
nonpublic information about the Company in connection with any transaction on or
through the facilities of a national securities exchange or from or through a
broker or dealer, other than as part of a securities offering by the Company;
(e) with respect to any transaction from which the Indemnitee
derived an improper personal benefit to which he or she is not legally entitled;
(f) for the return of any remuneration paid to the Indemnitee
that is held by any court in a final judgment to have been illegal or improper;
(g) to the extent that the Indemnitee acted or failed to act
(i) not in good faith, or (ii) not in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Company, or (iii) with respect
to any criminal Action, with reasonable cause to believe his or her conduct was
unlawful; or
(h) if a final nonappealable decision by a court having
jurisdiction in the matter shall determine that such indemnification is not
lawful.
6. Partial and Mandatory Indemnity. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company of some or a
portion of the
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Expenses, judgments, fines, penalties and amounts paid in settlement of an
Action but not for the total amount, the Company shall indemnify Indemnitee for
the portion to which Indemnitee is entitled. To the extent that Indemnitee has
been successful on the merits or otherwise (including dismissal with or without
prejudice) in defense of any Indemnifiable Action or Indemnifiable Derivative
Action, or in defense of any claim, issue or matter therein, he or she shall be
indemnified against Expenses actually and reasonably incurred by him in
connection therewith, except as stated in Paragraph 5(a) or 5(b).
7. Notification of Indemnifiable Action or Indemnifiable Derivative
Action. Indemnitee shall promptly notify the Company of any Indemnifiable Action
or Indemnifiable Derivative Action promptly after receipt by Indemnitee of
notice of the commencement of such Indemnifiable Action or Derivative Action.
With respect thereto:
(a) The Company will be entitled to participate therein at its
own expense.
(b) Except as otherwise provided below, the Company jointly
with any other indemnifying party may assume the defense thereof, with counsel
reasonably satisfactory to Indemnitee to be chosen or approved by the Company.
After notice from the Company to Indemnitee of its election to so assume the
defense thereof, the Company will not be liable to Indemnitee for any legal or
other expenses subsequently incurred by Indemnitee in connection with the
defense thereof other than reasonable costs of investigation or participation in
any Action or Derivative Action (including travel expenses) or as otherwise
provided below. Indemnitee shall have the right to employ independent counsel in
such Action or Derivative Action; however, 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 Indemnitee unless:
(i) the employment of independent counsel by
Indemnitee has been authorized by the Company;
(ii) counsel employed by the Company to represent the
Indemnitee shall have reasonably concluded that there may be a conflict
of interest in the conduct of the defense of such action that prevents
such counsel from representing Indemnitee; or
(iii) the Company shall not in fact have employed
counsel to assume the defense of such Action or Derivative Action on
behalf of Indemnitee.
The fees and expenses of independent counsel of Indemnitee in subparagraphs
7(b)(i), (ii) and (iii) shall be borne by the Company.
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(c) If the Company has assumed the defense of the Indemnitee
pursuant to subparagraph (b) above, the Company shall not be liable to indemnify
Indemnitee under this Agreement for any amount paid in settlement of any Action
or Derivative Action effected without its written consent, the Company shall not
settle any Action or Derivative Action in any manner which would impose any
penalty or limitation on Indemnitee without Indemnitee's written consent, and
neither the Company nor Indemnitee will unreasonably withhold their consent to
any proposed settlement.
8. Establishment of Trust. In the event of a Potential Change in
Control, the Company shall, upon written request by Indemnitee, create a trust
for the benefit of Indemnitee and from time to time upon written request of
Indemnitee shall fund such trust in an amount sufficient to satisfy any and all
Expenses reasonably anticipated at the time of each such request to be incurred
in connection with investigating, preparing for and defending any Indemnifiable
Action or Indemnifiable Derivative Action, and any and all judgments, fines,
penalties and settlement amounts of any and all Indemnifiable Actions or
Indemnifiable Derivative Action from time to time actually paid or claimed,
reasonably anticipated or proposed to be paid; provided, however, that in no
event shall more than $250,000 be required to be deposited in any trust created
hereunder in excess of amounts deposited in respect of reasonably anticipated
Expenses. The terms of the trust shall provide that upon a Change in Control (i)
the trust shall not be revoked or the principal thereof invaded without the
written consent of the Indemnitee, (ii) the trustee shall advance, within ten
(10) business days of a written request by the Indemnitee, any and all Expenses
to the Indemnitee (and the Indemnitee hereby agrees to reimburse the trust under
the circumstances under which the Indemnitee would be required to reimburse the
Company under Section 9(b) of this Agreement), (iii) the trust shall continue to
be funded by the Company in accordance with the funding obligation set forth
above, (iv) the trustee shall promptly pay to Indemnitee all amounts for which
Indemnitee shall be entitled to indemnification pursuant to this Agreement or
otherwise, and (v) all unexpended funds in such trust shall revert to the
Company upon a final determination by the Indemnitee or a court of competent
jurisdiction, as the case may be, that Indemnitee has been fully indemnified
under the terms of this Agreement. Trustee shall be chosen by the Board of
Directors. Nothing in this Section 8 shall relieve the Company of any of its
obligations under this Agreement.
9. Advance of Expenses; Failure to Pay Claim.
(a) Written Request. If so requested by Indemnitee in writing,
the Company shall (subject to the Expense Advance Rules hereinafter described)
advance to Indemnitee (an "Expense Advance") any and all Expenses incurred in
connection with the
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investigation and preparation of the Indemnitee's participation in any
Indemnifiable Action or Indemnifiable Derivative Action, whether as a witness or
a party, pursuant to this Agreement. The Company shall comply with the
Indemnitee's written request for an Expense Advance within ten (10) business
days of receipt of such written request together with the reimbursement
commitment referred to in subparagraph (b) below. In the event the Company does
not honor Indemnitee's request for an Expense Advance, Indemnitee may bring an
action in any court of competent jurisdiction to enforce the right to an Expense
Advance, and the Company shall have the burden of proof in such action to
demonstrate that the Expense Advance is not payable.
(b) Reimbursement by Indemnitee. The obligation of the Company
to make an Expense Advance shall be subject to the condition that, if it is
ultimately determined (by final judicial determination from which there is no
further right to appeal) that there are matters to which Indemnitee is not
entitled to indemnity under this Agreement, the Company shall be entitled to be
reimbursed by Indemnitee for all such amounts. Prior to obtaining the initial
Expense Advance, Indemnitee must confirm such reimbursement obligation by
delivery to Company of a signed undertaking in the form of Exhibit A or in such
other form as Company may reasonably accept.
(c) Expense Advance Rules. Expenses in all cases must be
reasonable and comply with existing or future billing procedures of the Company
so that the Company can reasonably monitor and audit such Expenses. With respect
to attorneys' fees, the Company will give reasonable consideration to requests
for specific counsel and to requests for the grouping of individuals for joint
defense purposes. Any attorney representing more than one individual may be
requested to render separate statements to each individual or otherwise allocate
billings by individual.
(d) Failure to Pay Claim. If loss has been incurred and a
claim for indemnification under this Agreement is not paid by the Company within
ten (10) business days after a written claim has been received by the Company,
Indemnitee may at any time thereafter bring suit against the Company to recover
any unpaid amount of the claim.
10. Burden of Proof. In connection with any determination as to whether
Indemnitee is entitled to be indemnified hereunder the burden of proof shall be
on the Company to establish that Indemnitee is not so entitled.
11. No Presumption. For purposes of this Agreement, the termination of
any action, suit or proceeding by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or
Indemnification Agreement Page - 9
have any particular belief or that a court has determined that indemnification
is not payable under this Indemnification Agreement or permitted by applicable
law.
12. Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall
be in addition to any other rights Indemnitee may have under the Company's
Certificate of Incorporation, or the Delaware General Corporation Law or
otherwise. To the extent that a change in the Delaware General Corporation Law
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Company's Certificate of
Incorporation and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change.
13. Liability Insurance. To the extent the Company maintains an
insurance policy or policies providing Directors' and Officers' liability
insurance, Indemnitee shall be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of the coverage available for any
Company Director, Officer or Indemnitee. In the event Indemnitee incurs any
Expenses in tendering the defense of the Action to the insurance company
providing the Directors and Officers insurance, such Expenses shall be
considered indemnifiable Expenses.
14. Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal
action within such two year period; provided, however, that if any shorter
period of limitations is otherwise applicable to any such cause of action such
shorter period shall govern.
15. No Right To Continued Employment. Nothing contained in this
Indemnification Agreement is intended to, or shall, create any right to
continued employment by the Company.
16. Amendments and Waiver. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto; provided, however, that if any provision of this Agreement is
challenged as being unlawful, the parties agree that the court in which such
challenge is litigated may modify such provision so that it is enforceable to
the maximum extent permitted by law and may enforce the Agreement as so
modified. No waiver of any of the provisions of this Agreement shall
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be deemed or shall constitute a waiver of any other provisions hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.
17. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
18. Binding Effect. Etc. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors, heirs, and assigns.
l9. Termination by Company. This Agreement shall continue in full force
and effect, regardless of whether Indemnitee continues to serve as an officer or
director of the Company or any other enterprise at the Company's request, unless
terminated pursuant to this Paragraph. By giving written notice to Indemnitee at
his or her address according to Company records, the Company, prior to a
Potential Change of Control or Change of Control, may terminate its obligations
under this Indemnification Agreement as to any act or omission of Indemnitee
after such written notice is given. Notice is deemed given when actually
received or two days after being sent by registered or certified mail, whichever
is earlier.
20. Severability. The provisions of this Agreement shall be severable
and, in the event that any of the provisions hereof (including any provision
within a single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, the remaining
provisions shall remain enforceable to the fullest extent permitted by law,
including the provisions that have been modified by a court pursuant to
Paragraph 16 hereof.
21. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in such state without giving effect to the
principles of conflicts of laws.
22. Prior Agreements. This Agreement supersedes all prior
Indemnification Agreements between the Company and Indemnitee.
DEL WEBB CORPORATION
Indemnification Agreement Page - 11
By:
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Its:
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Indemnitee
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EXHIBIT A
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__________ ___, l995
DEL WEBB CORPORATION
Attention: General Counsel
6001 North 24th Street
Phoenix, Arizona 85016
Re: Indemnification Agreement Dated , l995 (the "Agreement")
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Gentlemen:
I am the beneficiary of the above Agreement and am a defendant,
witness, or other participant in the following legal action:
______________________________________________________________________. A copy
of the Complaint in this action is attached for your information.
Pursuant to Paragraph 9 of the Agreement, I hereby request that Del
Webb Corporation advance my Expenses as such term is used in the Agreement,
subject to the Expense Advance Rules, as such Rules are applied in the
Agreement. I hereby confirm that I will reimburse Del Webb Corporation for all
the amounts advanced to me that are ultimately determined (by final judicial
determination from which there is no further right to appeal) to be associated
with matters to which I am not entitled to indemnity under the Agreement.
If any additional information is needed, my address and telephone
number are listed below:
Address:
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Telephone Number:
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Very truly yours,
DIRECTORS AND OFFICERS
INDEMNIFICATION AGREEMENTS
LIST OF RECIPIENTS
Directors:
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Philip J. Dion
Hugh F. Culverhouse
J. Russell Nelson
Peter A. Nelson
C. Anthony Wainwright
Sam Yellen
D. Kent Anderson
Michael E. Rossi
Kenny C. Guinn
Michael O. Maffie
Glenn W. Schaeffer
Officers
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Philip J. Dion
Larry W. Beckner
Joseph F. Contadino
John H Gleason
LeRoy C. Hanneman, Jr.
Robertson C. Jones
Anne L. Mariucci
Donald V. Mickus
John M. Murray
Frank D. Pankratz
David E. Rau
Charles T. Roach
David G. Schreiner
M. Lynn Schuttenberg
John A. Spencer
Richard L. Vandermeer
Robert R. Wagoner