Exhibit 10.1
CENTEX CORPORATION
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this
“Agreement”) is made and entered into as of the ___day
of May, 2008 by and between Centex Corporation, a Nevada
corporation (the “Corporation”), and
«Officer_Name» (“Indemnitee”).
W I T
N E S S E T H:
WHEREAS, Indemnitee is currently
serving or is about to begin serving as an Officer of the
Corporation and/or in another capacity, and Indemnitee is willing,
subject to, among other things, the Corporation’s execution
and performance of this Agreement, to continue in or assume such
capacity or capacities;
WHEREAS, the Bylaws of the
Corporation provide that the Corporation shall indemnify and
advance expenses to all Officers of the Corporation in the manner
set forth therein and to the fullest extent permitted by applicable
law, and to such greater extent as applicable law may thereafter
permit; and
WHEREAS, in order to induce
Indemnitee to provide services as contemplated hereby, the
Corporation has deemed it to be in its best interest to enter into
this Agreement with Indemnitee;
NOW, THEREFORE, in consideration of
Indemnitee’s agreement to provide services to the Corporation
and/or certain of its affiliates as contemplated hereby, the mutual
agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto stipulate and agree as
follows:
ARTICLE I
Definitions
Section 1.1. As used
herein, the following words and terms shall have the following
respective meanings (whether singular or plural):
“Articles of
Incorporation” means the Articles of Incorporation of the
Corporation (as they may be amended or restated from time to
time).
“Board of
Directors” means the board of directors of the
Corporation.
“Bylaws” means
the By-Laws of the Corporation (as they may be amended or restated
from time to time).
“Change of
Control” means:
(i) The acquisition by any
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act” )) (a
“Person” ) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the
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Exchange
Act) of 20% or more of either (1) the then outstanding shares
of common stock of the Corporation (the “Outstanding
Corporation Common Stock” ) or (2) the combined
voting power of the then outstanding voting securities of the
Corporation entitled to vote generally in the election of directors
(the “Outstanding Corporation Voting Securities”
); provided , however , that for purposes of this
subsection (i), the following acquisitions shall not constitute a
Change of Control: (A) any acquisition directly from the
Corporation, (B) any acquisition by the Corporation,
(C) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any entity
controlled by the Corporation or (D) any acquisition by any
entity pursuant to a transaction which complies with clauses (1),
(2) and (3) of subsection (iii) of this definition;
or
(ii) Individuals who, as of the
date hereof, constitute the Board of Directors (the
“Incumbent Board” ) cease for any reason to
constitute at least a majority of the Board of Directors;
provided , however , that any individual becoming a
director subsequent to the date hereof whose election, or
nomination for election by the Corporation’s stockholders,
was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board of Directors;
or
(iii) Consummation of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Corporation (a “Business Combination” ), in each
case, unless, following such Business Combination, (1) all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Corporation
Common Stock and Outstanding Corporation Voting Securities
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally
in the election of directors, as the case may be, of the entity
resulting from such Business Combination (including, without
limitation, an entity that as a result of such transaction owns the
Corporation or all or substantially all of the Corporation’s
assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately
prior to such Business Combination, of the Outstanding Corporation
Common Stock and Outstanding Corporation Voting Securities, as the
case may be, (2) no Person (excluding any entity resulting
from such Business Combination or any employee benefit plan (or
related trust) of the Corporation or such entity resulting from
such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding
shares of common equity of the entity resulting from such Business
Combination or the combined voting power of the then outstanding
voting securities of such entity except to the extent that such
ownership existed prior to the Business Combination and (3) at
least a majority of the members of the board of directors of the
corporation, or the similar managing body of a non-corporate
entity, resulting from such Business Combination were members of
the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board of Directors, providing
for such Business Combination; or
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(iv) Approval by the
stockholders of the Corporation of a complete liquidation or
dissolution of the Corporation; or
(v) A change of control as
defined in any employment agreement, change of control agreement or
other agreement between the Corporation and Indemnitee.
“ Covered Capacity
” means, with respect to any person, that such person (or a
person for whom he or she is serving as a legal representative) is
or was an Officer of the Corporation, or is or was serving at the
request of the Corporation as director, manager, Officer, trustee,
general partner, member, fiduciary, employee or agent of any other
enterprise in which the Corporation has an interest, in each case
(i) whether or not such person was serving in that capacity at
the time any liability or expense is incurred and (ii) whether
the basis for any Proceeding brought against such person is alleged
action in an official capacity as a director, manager, officer,
trustee, general partner, member, fiduciary, employee or agent or
any other capacity while serving as a director, manager, officer,
trustee, general partner, member, fiduciary, employee or
agent.
“ Expenses ”
include all direct and indirect costs, fees and expenses of any
type or nature, including, without limitation, all attorneys’
fees and costs, retainers, court costs, transcript costs, fees of
experts, witness fees, travel expenses, fees of private
investigators and professional advisors, duplicating costs,
printing and binding costs, telephone charges, postage, delivery
service fees, fax transmission charges, secretarial services and
all other disbursements or expenses in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being
or preparing to be a witness in, settlement or appeal of or
otherwise participating in a Proceeding, including reasonable
compensation for time spent by Indemnitee for which he or she is
not otherwise compensated by the Corporation or any third party.
“Expenses” also include expenses incurred in connection
with any appeal resulting from any Proceeding, including the
premium for, security for, and other costs relating to, any cost
bond, supersedeas bond or other appeal bond or its equivalent.
“Expenses” do not include amounts paid in settlement by
Indemnitee or the amount of judgments or fines against
Indemnitee.
“ Independent Counsel
” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is,
nor in the five years previous to his or her selection or
appointment has been, retained to represent: (i) the
Corporation or Indemnitee in any matter material to either such
party or (ii) any other party to the Proceeding giving rise to
a claim for indemnification hereunder. The term “Independent
Counsel” does not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Corporation
or Indemnitee in an action to determine Indemnitee’s rights
under this Agreement, the Bylaws of the Corporation or under any
agreement between Indemnitee and the Corporation.
“ NRS ” means the
Nevada Revised Statutes.
“ Officer ” means
the president, the treasurer, the secretary, and each vice
president of the Corporation and any other corporation,
partnership, limited liability company, association, joint venture,
trust, employee benefit plan or other enterprise for which such
person is or was serving in such position at the request of the
Corporation (and all variants of the preceding positions such
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as
assistant treasurer, assistant secretary, senior vice president,
and similar modifications), in each case elected or appointed
pursuant to proper corporate authority, and each other person
designated by the President of the Corporation from time to time as
constituting an “Officer.”
“ Proceeding ”
includes a threatened, pending or completed action, suit,
arbitration, alternate dispute resolution, investigation, inquiry,
administrative hearing, appeal or any other actual, threatened or
completed proceedings with or brought in the right of the
Corporation or otherwise and whether civil, criminal,
administrative or investigative in nature.
ARTICLE II
Services by Indemnitee
Section 2.1. Services by
Indemnitee. Indemnitee agrees to serve or continue to serve in his
or her current capacity as an Officer of the Corporation.
Indemnitee may also serve, as the Corporation may reasonably
request from time to time, as a director, manager, Officer,
trustee, general partner, member, employee, fiduciary or agent of
any other corporation, partnership, limited liability company,
association, joint venture, trust, employee benefit plan or other
enterprise in which the Corporation has an interest. Indemnitee and
the Corporation each acknowledge that they have entered into this
Agreement as a means of inducing Indemnitee to serve the
Corporation in such capacities. Indemnitee may at any time and for
any reason resign from such position or positions (subject to any
other contractual obligation or any obligation imposed by operation
of law). The Corporation shall have no obligation under this
Agreement to continue Indemnitee in any such position for any
period of time and shall not be precluded by the provisions of this
Agreement from removing Indemnitee from any such position at any
time.
ARTICLE III
Third Party Proceedings
Section 3.1. The
Corporation must indemnify Indemnitee if he or she was or is a
party or is threatened to be made a party to any Proceeding, except
an action by or in the right of the Corporation, by reason of the
fact that he or she is or was serving or acting in a Covered
Capacity, against Expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee in
connection with the Proceeding if he or she: (a) is not liable
pursuant to NRS 78.138 or (b) acted in good faith and in a
manner which Indemnitee reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any
criminal action or Proceeding, had no reasonable cause to believe
his or her conduct was unlawful. The termination of any Proceeding
by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, does not, of itself, create a
presumption that Indemnitee is liable pursuant to NRS 78.138 or did
not act in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Corporation or that, with respect to any criminal action or
proceeding, he or she had reasonable cause to believe that his or
her conduct was unlawful.
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ARTICLE IV
Derivative Actions
Section 4.1. The
Corporation must indemnify Indemnitee if he or she was or is a
party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor, by reason of the
fact that Indemnitee is or was serving or acting in a Covered
Capacity, against Expenses and amounts paid in settlement thereof
if Indemnitee: (a) is not liable pursuant to NRS 78.138, or
(b) acted in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interests
of the Corporation. Indemnification may not be made for any claim,
issue or matter as to which Indemnitee has been adjudged by a court
of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the Corporation or for amounts paid in
settlement to the Corporation, unless and only to the extent that
the court in which the action or suit was brought or other court of
competent jurisdiction determines upon application that in view of
all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such Expenses as the court
deems proper.
ARTICLE V
Party Who is Wholly or Partially Successful
Section 5.1.
Notwithstanding any other provisions of this Agreement, to the
extent that Indemnitee is a party to or a participant in and is
successful on the merits or otherwise in any Proceeding or in
defense of any claim, issue or matter in any Proceeding, in whole
or in part, to which Indemnitee was or is a party or is otherwise
involved by reason of the fact that he or she is or was serving or
acting in a Covered Capacity, the Corporation shall indemnify and
hold harmless Indemnitee against all Expenses actually and
reasonably incurred by Indemnitee in connection with any Proceeding
or defense. If Indemnitee is not wholly successful in the
Proceeding, the Corporation must indemnify and hold harmless
Indemnitee against all Expenses actually and reasonably incurred by
him or her or on his or her behalf in connection with each claim,
issue or matter on which Indemnitee was successful. The termination
of any claim, issue or matter in the Proceeding by dismissal, with
or without prejudice, by reason of settlement, judgment, order or
otherwise, shall be deemed to be a successful result as to such
Proceeding, claim, issue or matter, so long as there has been no
finding that Indemnitee (i) is liable pursuant to NRS 78.138
or (ii) did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal proceeding or
action, had no reasona
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