Exhibit 10.1
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (the “ Agreement ”)
dated June 25, 2009, effective as of March 11, 2009, by
and between American Reprographics Company, a Delaware corporation
(the “ Company ”), and James F. McNulty (the
“ Indemnitee ”).
RECITALS
The
Company and Indemnitee recognize the increasing difficulty in
obtaining liability insurance for directors, officers and key
employees, the significant increases in the cost of such insurance
and the general reductions in the coverage of such insurance. The
Company and Indemnitee further recognize the substantial increase
in corporate litigation in general, subjecting directors, officers
and key employees to expensive litigation risks at the same time as
the availability and coverage of liability insurance has been
severely limited. Indemnitee does not regard the current protection
available as adequate under the present circumstances, and
Indemnitee and agents of the Company may not be willing to continue
to serve as agents of the Company without additional protection.
The Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, and to indemnify its
directors, officers and key employees so as to provide them with
the maximum protection permitted by law.
AGREEMENT
In
consideration of the mutual promises made in this Agreement, and
for other good and valuable consideration, receipt of which is
hereby acknowledged, the Company and Indemnitee hereby agree as
follows:
1. Indemnification
.
(a) Third Party
Proceedings . The
Company shall indemnify Indemnitee if Indemnitee is or was a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Company) by reason of the fact that Indemnitee is or
was a director, officer, employee or agent of the Company, or any
subsidiary of the Company, by reason of any action or inaction on
the part of Indemnitee while an officer or director or by reason of
the fact that Indemnitee is or was serving at the request of the
Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be
unreasonably withheld) actually and reasonably incurred by
Indemnitee in connection with such action, suit or proceeding if
Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe Indemnitee’s
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that Indemnitee 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 Company, or, with respect to
any criminal action or proceeding, that Indemnitee had reasonable
cause to believe that Indemnitee’s conduct was
unlawful.
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(b) Proceedings By or in the Right of
the Company . The
Company shall indemnify Indemnitee if Indemnitee was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or proceeding by or in the right of the Company or
any subsidiary of the Company to procure a judgment in its favor by
reason of the fact that Indemnitee is or was a director, officer,
employee or agent of the Company, or any subsidiary of the Company,
by reason of any action or inaction on the part of Indemnitee while
an officer or director or by reason of the fact that Indemnitee is
or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys’ fees) and, to the fullest extent
permitted by law, amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be
unreasonably withheld), in each case to the extent actually and
reasonably incurred by Indemnitee in connection with the defense or
settlement of such action or suit if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company and its stockholders,
except that no indemnification shall be made in respect of any
claim, issue or matter as to which Indemnitee shall have been
finally adjudicated by court order or judgment to be liable to the
Company in the performance of Indemnitee’s duty to the
Company and its stockholders unless and only to the extent that the
court in which such action or proceeding is or was pending shall
determine upon application that, in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem
proper.
(c) Mandatory Payment of
Expenses . To the
extent that Indemnitee has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to
in Section 1(a) or Section 1(b) or the defense of any claim, issue
or matter therein, Indemnitee shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred
by Indemnitee in connection therewith.
2. No Employment Rights
. Nothing contained in this
Agreement is intended to create in Indemnitee any right to
continued employment.
3. Expenses; Indemnification
Procedure .
(a) Advancement of
Expenses . The
Company shall advance all expenses incurred by Indemnitee in
connection with the investigation, defense, settlement or appeal of
any civil or criminal action, suit or proceeding referred to in
Section l(a) or Section 1(b) hereof (including amounts actually
paid in settlement of any such action, suit or proceeding).
Indemnitee hereby undertakes to repay such amounts advanced only
if, and to the extent that, it shall ultimately be determined that
Indemnitee is not entitled to be indemnified by the Company as
authorized hereby.
(b) Notice/Cooperation by
Indemnitee .
Indemnitee shall, as a condition precedent to his or her right to
be indemnified under this Agreement, give the Company notice in
writing as soon as practicable of any claim made against Indemnitee
for which indemnification will or could be sought under this
Agreement. Notice to the Company shall be directed to the Chief
Executive Officer of the Company and shall be given in accordance
with the provisions of Section 12(d) below. In addition, Indemnitee
shall give the Company such information and cooperation as it may
reasonably require and as shall be within Indemnitee’s
power.
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(c) Procedure
. Any indemnification and advances
provided for in Section 1 and this Section 3 shall be
made no later than twenty (20) days after receipt of the
written request of Indemnitee. If a claim under this Agreement,
under any statute, or under any provision of the Company’s
Certificate of Incorporation or Bylaws providing for
indemnification, is not paid in full by the Company within twenty
(20) days after a written request for payment thereof has
first been received by the Company, Indemnitee may, but need not,
at any time thereafter bring an action against the Company to
recover the unpaid amount of the claim and, subject to
Section 11 of this Agreement, Indemnitee shall also be
entitled to be paid for the expenses (including attorneys’
fees) of bringing such action. It shall be a defense to any such
action (other than an action brought to enforce a claim for
expenses incurred in connection with any action, suit or proceeding
in advance of its final disposition) that Indemnitee has not met
the standards of conduct which make it permissible under applicable
law for the Company to indemnify Indemnitee for the amount claimed,
but the burden of proving such defense shall be on the Company and
Indemnitee shall be entitled to receive interim payments of
expenses pursuant to Section 3(a) unless and until such defense may
be finally adjudicated by court order or judgment from which no
further right of appeal exists. It is the parties’ intention
that if the Company contests Indemnitee’s right to
indemnification, the question of Indemnitee’s right to
indemnification shall be for the court to decide, and neither the
failure of the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal
counsel, or its stockholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct
required by applicable law, nor an actual determination by the
Company (including its Board of Directors, any committee or
subgroup of the Board of Directors, independent legal counsel, or
its stockholders) that Indemnitee has not met such applicable
standard of conduct, shall create a presumption that Indemnitee has
or has not met the applicable standard of conduct.
(d) Notice to Insurers
. If, at the time of the receipt of
a notice of a claim pursuant to Section 3(b) hereof, the Company
has director and officer liability insurance in effect, the Company
shall give prompt notice of the commencement of such proceeding to
the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on
behalf of the Indemnitee, al
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