<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION DRAFT
Washington, D.C. 20549
FORM 10-Q
(Mark one)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended March 31, 1997
Or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from _______________ to ______________
Commission File Number 1-12868
JALATE, LTD.
(Exact name of registrant as specified in its charter)
California 95-4121885
(State or other jurisdiction of (I.R.S Employer
incorporated or organization) Identification Number)
1675 South Alameda Street, Los Angeles, California 90021
(Address of principal executive offices) (Zip code)
(213) 765-5000
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Common Stock American Stock Exchange
(Title of each class) (Name of each exchange on which registered)
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
----- -----
The number of shares outstanding of the registrant's Common Stock, no par value,
at May 6, 1997 was 3,403,000 shares.
This Form 10-Q contains 18 pages.
<PAGE> 2
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements:
JALATE, LTD.
CONDENSED BALANCE SHEETS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1997 1996
--------- ------------
<S> <C> <C>
ASSETS
Current assets:
Cash $ 28 97
Due from factor 3,312 2,767
Trade accounts receivable, less allowance for
doubtful receivables of $940 in 1997 and
$358 in 1996 883 821
Inventories 5,066 3,572
Refundable income taxes 114 120
Prepaid expenses and other current assets 360 170
------- -------
Total current assets 9,763 7,547
Property and equipment, at cost, net 1,014 1,050
Investment in joint venture 567 482
Other assets, at cost 90 94
------- -------
$11,434 $ 9,173
======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Notes payable to bank $ 2,035 684
Trade accounts payable 3,546 2,871
Accrued expenses 523 254
------- -------
Total current liabilities 6,104 3,809
------- -------
Shareholders' equity:
Preferred stock, no par value. Authorized 3,000,000
shares; none issued and outstanding -- --
Common stock, no par value. Authorized 20,000,000
shares; issued and outstanding 3,403,000, and
3,403,000 shares in 1997 and 1996 respectively 5,311 5,311
Retained earnings 19 53
------- -------
Total shareholders' equity 5,330 5,364
------- -------
$11,434 9,173
======= =======
</TABLE>
See accompanying notes to condensed financial statements.
2
<PAGE> 3
JALATE, LTD.
CONDENSED STATEMENTS OF OPERATIONS
(in thousands except earnings per share and weighted average shares outstanding)
(Unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
1997 1996
-------- --------
<S> <C> <C>
Net Sales $ 13,919 $ 14,748
Cost of goods sold 10,091 10,840
-------- --------
Gross Profit 3,828 3,908
Operating expenses 3,887 3,617
-------- --------
Earnings (loss) from operations (59) 291
Other (Income) expense:
Interest expense 131 159
Equity in earnings of joint venture (156) (85)
-------- --------
Total other (income) expense (25) 74
-------- --------
Earnings (loss) before income taxes (34) 217
Income tax expense -- --
-------- --------
Net earnings (loss) $ (34) $ 217
======== ========
Net earnings (loss) per common share and
common equivalent shares $ (0.01) $ 0.06
======== ========
Weighted average common and common
equivalent shares outstanding 3,403 3,399
======== ========
</TABLE>
See accompanying notes to condensed financial statements.
3
<PAGE> 4
JALATE, LTD.
CONDENSED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
Three months ended
March 31,
1997 1996
------- -------
<S> <C> <C>
Cash flow from operating activities:
Net earnings (loss) $ (34) $ 217
------- -------
Adjustments to reconcile net earnings to net cash used in operating
activities:
Depreciation and amortization 105 82
Increase in allowance for doubtful
receivables 582 281
Undistributed earnings of joint venture (85) (85)
Changes in assets and liabilities
(Increase) decrease in:
Due from Factor, Net (3,382) (545)
Trade accounts receivable (644) (61)
Inventories (1,494) 323
Prepaid expenses and other current assets (190) (259)
Due from officers -- 103
Refundable income taxes 6 550
Other assets 4 1
Increase (decrease) in:
Trade accounts payable 675 747
Accrued expenses 269 259
------- -------
Total adjustments (1,317) (1,315)
------- -------
Net cash provided (used in) operating activities (1,351) (1,098)
------- -------
Cash flows from investing activities:
Capital expenditures (69) (183)
------- -------
Net cash used in investing activities (69) (183)
------- -------
Cash flows from financing activities:
Net Proceeds from note payable to bank 1,351 1,266
------- -------
Net cash provided by financing activities 1,351 1,266
------- -------
Net (decrease) in cash (69) (15)
Cash at beginning of
period 97 92
------- -------
Cash at end of period $ 28 $ 77
======= =======
Supplemental disclosures of cash flow information
Cash paid during the period for
Taxes -- --
Interest $ 131 $ 159
======= =======
</TABLE>
See accompanying notes to condensed financial statements.
4
<PAGE> 5
LINROZ MANUFACTURING COMPANY, L.P.
BALANCE SHEETS
<TABLE>
<CAPTION>
MARCH 31, 1997 DECEMBER 31, 1996
-------------- -----------------
(Unaudited)
<S> <C> <C>
ASSETS
Current Assets:
Cash $ 573,000 421,000
Accounts receivable from Jalate, Ltd. 113,000 95,000
Prepaid expenses and other current assets 8,000 37,000
---------- ----------
Total current assets 694,000 553,000
Property and equipment, at cost, net 888,000 915,000
Other assets, at cost 20,000 20,000
---------- ----------
$1,602,000 1,488,000
========== ==========
LIABILITIES AND PARTNERS' CAPITAL
Current
liabilities:
Current maturities of long term debt $ 113,000 111,000
Trade accounts payable 14,000 50,000
Accrued expenses and other liabilities 56,000 42,000
---------- ----------
Total current liabilities 183,000 203,000
Long-term debt, less current maturities 292,000 321,000
Partners' capital 1,127,000 964,000
---------- ----------
$1,602,000 1,488,000
========== ==========
</TABLE>
See accompanying notes to condensed financial statements
5
<PAGE> 6
LINROZ MANUFACTURING COMPANY, L.P.
CONDENSED STATEMENTS OF EARNINGS
FOR THREE MONTHS ENDED MARCH 31, 1997 AND 1996
(UNAUDITED)
<TABLE>
<CAPTION>
1997 1996
---------- ----------
<S> <C> <C>
Net sales $1,109,000 866,000
Cost of sales 698,000 593,000
---------- ----------
Gross profit 411,000 273,000
Operating expenses 88,000 91,000
---------- ----------
Earnings from operations 323,000 182,000
Interest expense, net 10,000 13,000
---------- ----------
Net earnings $ 313,000 169,000
========== ==========
</TABLE>
See accompanying notes to condensed financial statements
6
<PAGE> 7
LINROZ MANUFACTURING COMPANY, L.P.
STATEMENTS OF CASH FLOWS
FOR THREE MONTHS ENDED MARCH 31, 1997 AND 1996
(UNAUDITED)
<TABLE>
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
Cash flows from operating activities:
Net earnings $ 313,000 169,000
Adjustments to reconcile net earnings to net cash provided by
operating activities:
Depreciation and amortization of property and equipment 58,000 51,000
Changes in assets and liabilities:
(Increases) decreases in:
Accounts receivables from Jalate, Ltd. (18,000) (73,000)
Prepaid expense 22,000 --
Other assets 6,000 --
Increases (decreases) in:
Accounts payable 3,000 (15,000)
Accrued expenses (2,000) 10,000
Other current liabilities (23,000) (39,000)
--------- ---------
Net cash provided by operating activities 359,000 103,000
Cash flows from investing activities - capital expenditures (31,000) (7,000)
Cash flows from financing activities:
Principal payments on long-term debt (26,000) (25,000)
Distributions to partners (150,000) --
Net cash provided by (used in) financing activities (176,000) (25,000)
--------- ---------
Net increase in cash 152,000 72,000
Cash at beginning of year 421,000 121,000
--------- ---------
Cash at end of period ended March 31 $ 573,000 193,000
========= =========
Supplemental disclosures of cash flow information - cash paid
during the year to date period ended March 31 for interest $ 9,900 13,000
========= =========
</TABLE>
See accompanying notes to condensed financial statements
7
<PAGE> 8
JALATE, LTD.
Notes to Condensed Financial Statements
(Unaudited)
1. General.
The unaudited condensed financial statements have been prepared on the
same basis as the audited financial statements and, in the opinion of
management, reflect all adjustments (consisting of normal recurring
adjustments) necessary for a fair presentation for each of the periods
presented. The results of operations for interim periods are not
necessarily indicative of results to be achieved for full fiscal years.
As contemplated by the Securities and Exchange Commission under Rule
10-01 of Regulation S-X, the accompanying financial statements and
notes have been condensed and do not contain certain information that
will be included in the Company's annual financial statements and notes
thereto. For further information, refer to the financial statements and
related notes for the year ended December 31, 1996 included in the
Company's Annual Report on Form 10-K.
2. Income Taxes.
Income taxes for the interim periods were computed using the effective
tax rate estimated to be applicable for the full fiscal year, which is
subject to ongoing review and evaluation by management. As of March 31,
1997, management's estimate of the 1997 effective tax rate is zero.
3. Earnings per Share.
Net earnings (loss) per share is based on the weighted average number
of shares of Common Stock and Common Stock equivalents outstanding.
4. Inventories
A summary of inventories at March 31, 1997 is as follows:
<TABLE>
<CAPTION>
<S> <C>
Piece Goods and Trim $ 1,425
Work in Process 1,544
Finished Goods 2,097
-------
$ 5,066
</TABLE>
5. Investment in Joint Venture
In November 1994, the Company entered into a manufacturing joint
venture ("Linroz Manufacturing Company L.P." or the "Joint Venture")
with an affiliate of its largest sewing contractor ("the Partner") to
improve the efficiency, quality and cost of its products. The Joint
Venture is a California Limited partneship. The Company and the Partner
each are equal limited partners and each hold one-half of the
outstanding capital stock of the sole general partner, a California
corporation. The Joint Venture commenced operations in May 1995.
For the three months ended March 31,1997 and 1996, purchases from the
Joint Venture aggregated $1,109,000 and $866,000, respectively. The
Company had accounts payable to the Joint Venture for purchases of
$113,000 and $114,000 at March 31, 1997 and 1996, respectively.
8
<PAGE> 9
The table below contains the summarized financial information of the
Joint Venture:
<TABLE>
<CAPTION>
Three months ended
March 31
1997 1996
---------- -------
(Unaudited)
<S> <C> <C>
Net Sales $1,109,000 866,000
Gross profit 411,000 273,000
Operating Expenses 88,000 91,000
Net earnings 312,000 169,000
========== =======
</TABLE>
<TABLE>
<CAPTION>
Mar. 31, 1997 Dec. 31, 1996
------------- -------------
(Unaudited)
<S> <C> <C>
Current assets $ 694,000 553,000
Non current assets 907,000 935,000
---------- -------
Total assets 1,601,000 1,488,000
Current liabilities $ 183,000 203,000
Long -term debt 291,000 321,000
---------- -------
Total liabilities 474,000 524,000
Partners' capital 1,127,000 964,000
---------- -------
$1,601,000 1,488,000
========== =========
</TABLE>
6. Adoption of Accounting Standards.
EARNINGS PER SHARE. The Financial Accounting Standards Board issued
Statement No.128 ("FASB 128"), in February 1997. FAS 128 is effective
for both interim and annual periods ending after December 15, 1997. The
Company will adopt FAS 128 in the fourth quarter of 1997. FAS 128
requires the presentation of "Basic" earnings per share which
represents income available to common shareholders divided by the
weighted average number of common shares outstanding for the period. A
dual presentation of "Diluted" earnings per share will also be
required. The Diluted presentation is similar to the current
presentation of all prior-period earnings per share data presented.
Management believes the adoption of FAS 128 will not have a material
impact on the Company's financial position or results of operations.
LINROZ MANUFACTURING COMPANY L.P.
Notes to Condensed Financial Statements
(Unaudited)
1. General
The unaudited condensed financial statements have been prepared on the
same basis as the audited financial statements and, in the opinion of
management, reflect all adjustments (consisting of normal recurring
adjustments) necessary for a full presentation for each of the periods
presented. The results of operations for interim periods are not
necessarily indicative of results to be achieved for full fiscal years.
As contemplated by the Securities and Exchange Commission under Rule
10-01 of Regulation 8-X of the accompanying financial statements and
notes have been condensed and do not contain certain information that
will be included in the Company's annual financial statements and notes
thereto. For further information, refer to the financial statements and
related notes for the year ending December 31, 1996, included in
Jalate's, Limited Annual Report and Form 10-K.
ITEM 2
Management's Discussion and Analysis of Financial Condition and Results
of Operations.
EXCEPT FOR THE HISTORICAL INFORMATION CONTAINED HEREIN, THE MATTERS
ADDRESSED IN THIS ITEM 2 CONSTITUTE "FORWARD-LOOKING STATEMENTS" WITHIN
THE MEANING OF SECTION 27A OF THE SECURITIES ACT OF 1933, AS AMENDED,
AND SECTION 21E OF THE SECURITIES EXCHANGE ACT OF 1934 AS AMENDED. SUCH
FORWARD-LOOKING STATEMENTS ARE SUBJECT TO A VARIETY OF RISKS AND
UNCERTAINTIES, INCLUDING THOSE DISCUSSED BELOW UNDER THE HEADING
"FACTORS THAT MAY AFFECT FUTURE RESULTS" AND ELSEWHERE IN THIS REPORT
ON FORM 10-Q THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM
THOSE ANTICIPATED BY THE COMPANY'S MANAGEMENT. THE PRIVATE SECURITIES
LITIGATION REFORM ACT OF 1995 (THE "ACT") PROVIDES CERTAIN "SAFE
HARBOR" PROVISIONS FOR FORWARD-LOOKING STATEMENTS. ALL FORWARD-LOOKING
STATEMENTS MADE IN THIS QUARTERLY REPORT ON FORM 10-Q ARE MADE PURSUANT
TO THE ACT.
The following table sets forth, for the periods indicated, the
percentage which certain items in the statements of operations data
bear to net sales and the percentage dollar increase (decrease) of such
items from period to period.
9
<PAGE> 10
JALATE, LTD.
CONDENSED STATEMENTS OF OPERATIONS
(Unaudited)
Percent of Net Sales
Three Months Ended
March 31,
<TABLE>
<CAPTION>
% Dollar
Increase
1997 1996 (Decrease)
----- ----- ----------
<S> <C> <C> <C>
Net sales 100% 100% -5.6%
Cost of goods sold 72.5 73.5 -6.9
----- ----- ------
Gross profit 27.5 26.5 -2.0
Operating expenses 27.9 24.5 7.5
----- ----- ------
Earnings (loss) from operations (.04) 2.0 -120.3
Interest expense .9 1.1 -17.6
Equity in earnings of joint venture 1.1 .6 83.5
----- ----- ------
Earnings (loss) before taxes (.2) 1.5 -115.7
</TABLE>
NET SALES. Gross sales decreased to $15,047,000 for the three
months ended March 31, 1997 from $16,018,000 for the comparable period
of fiscal 1996, a decrease of 6.1%. The decrease in gross sales for the
three month period was due to a decrease in the volume of apparel sold
from 1,745 to 1,642 units, a decrease of 5.9%. The decrease in volume
of apparel sold was due in part to a 10.7% decrease in the number of
units sold by the Jalate division and a 15.7% decrease in volume of the
Zanoni division. The decrease in units in volume of apparel sold by the
Jalate and Zanoni divisions was partially offset by the 431 units of
apparel sold by the Kids division which started at the end of the prior
fiscal year. The average wholesale prices increased 17.4% for the
Zanoni division and decreased 4.5% for the Jalate division.
RETURNS AND ALLOWANCES AND DISCOUNTS decreased to $1,128,000 (7.5% of
gross sales) for the three months ended March 31, 1997 from $1,270,000
(7.9% of gross sales) for the comparable period of fiscal 1996, a
decrease of 11.2% due in part to the Company's implementation of
improved procedures to manage quality control in the preproduction,
production and distribution operations.
As a result of the above mentioned factors, net sales decreased to
$13,919,000 for the three months ended March 31, 1997 from $14,748,000
for the comparable period of fiscal 1996, a decrease of 5.6%.
10
<PAGE> 11
GROSS PROFIT. Gross Profit decreased to $3,828,000 (27.5% of net sales)
for the three months ended March 31, 1997 from $3,908,000 (26.5% of net
sales) for the comparable period of fiscal 1996, an decrease of 2.0%.
The increase in gross profit as a percent of net sales for the three
month period for fiscal 1997 compared to fiscal 1996 was due primarily
to the decrease in discounts, returns and allowances in all product
lines and to the company's policy of selecting customers that provide
acceptable gross profit margins.
OPERATING EXPENSES. Operating expenses increased to $3,887,000 (27.9%
of net sales) for the three months ended March 31, 1997 from $3,617,000
(24.5% of net sales) for the comparable period of fiscal 1996, an
increase of 7.5%, primarily due to expenses related to the Kids
division start up and non-recurring expenses related to product
development.
INTEREST EXPENSE. Interest expense primarily reflects interest payable
on advances from the factor and interest payable on loans against
imports. Interest expense decreased to $131,000 for the three months
ended March 31, 1997 from $159,000 for the comparable period of fiscal
1996, a decrease of 17.6%, due to (i) the decreases in advances from
the factor partly as result of reductions in gross sales and (ii) the
decrease in the interest rate charged by the factor and Trade Bank.
EQUITY IN EARNINGS OF JOINT VENTURE. Investment in joint venture is
accounted for by the equity method, under which the Company's share of
earnings of the joint venture is reflected in income as earned and
distributions are credited against the investment in the joint venture
when received. Equity earnings increased to $156,000 for the three
months ended March 31, 1997 from $85,000 for the comparable period of
fiscal 1996. The increase in earnings is attributable to increased unit
volume.
INCOME TAXES. Income taxes for the interim periods were computed using
the effective tax rate estimated to be applicable for the full fiscal
year, which is subject to ongoing review and evaluation by management.
As of March 31, 1997, management's estimate of the 1997 effective tax
rate is zero.
NET EARNINGS. Net earnings decreased to a net loss of $34,000 ($0.01
per common share) for the three months ended March 31, 1997 from net
earnings of $217,000 ($.06 per common share) for the comparable period
of fiscal 1996. The decrease in net earnings for the period ended March
31, 1997 is primarily attributable to matters described above.
LIQUIDITY AND CAPITAL RESOURCES. At March 31, 1997, working capital was
$3,659,000 compared to $3,738,000 at December 31, 1996. Cash used by
operating activities aggregated $1,351,000 for the three months ended
March 31, 1997, compared with cash used by operating activities of
$1,098,000 for the three months ended March 31, 1996.
Inventory at March 31, 1997 was $5,066,000 as compared to $4,109,000 at
March 31, 1996 and $3,572,000 at December 31, 1996.
At March 31, 1997, the amount due from the factor consisted of the
following:
<TABLE>
<CAPTION>
<S> <C>
Factor receivables $ 10,494,000
Advances from Factor (6,722,000)
Open Credit Memos (460,000)
------------
$ 3,312,000
============
</TABLE>
The Company has an agreement with its factor, that provides for
advances to the company of up to 90% of qualified factor receivables.
The Company believes that its present and currently available sources
of working capital are sufficient to maintain its current level of
operations for the foreseeable future.
11
<PAGE> 12
FACTORS THAT MAY AFFECT FUTURE RESULTS
All forward-looking statements contained in this Item 2 are subject to,
in addition to the other matters described in the Report on Form 10-Q,
a variety of significant risks and uncertainties. The following
discussion highlights some of these risks and uncertainties. Further,
from time to time, information provided by the Company or statements
made by its employees may contain forward-looking information. The
Company cautions the reader that there can be no assurance that actual
results or business conditions will not differ materially from those
projected or suggested in such forward-looking statements as a result
of various factors, including those discussed below.
SUBSTANTIAL COMPETITION. The apparel industry is highly competitive.
Many of the Company's competitors have substantially greater financial,
distribution, marketing and other resources, including greater brand
awareness, than the Company. The Company competes with numerous apparel
manufacturers, including those with their own retail stores, as well as
department stores, specialty stores, retail chains and mass
merchandisers which sell apparel under their own labels. From time to
time, the Company has lowered prices on certain products to maintain
market share, which has adversely affected the Company's gross profit
margin on such products. There can be no assurance that such price
competition will not recur.
CHANGING FASHION TRENDS. The Company's success depends in substantial
part on its ability to correctly anticipate, gauge and respond to
rapidly changing consumer preferences in a timely manner. If the
Company materially misjudges the market for a particular product or
product line, the Company may be faced with a substantial reduction in
sales and excess inventory. There can be no assurance that the Company
will be able to correctly anticipate, gauge and respond to changing
consumer preferences in a timely manner in the future.
ECONOMIC CONDITIONS. The apparel industry historically has been subject
to substantial cyclical variation, and a recession in the general
economy or uncertainties regarding future economic prospects that
affect consumer spending habits have in the past had, and may in the
future have, a materially adverse effect on the Company's results of
operations. In addition, certain retailers, including some of the
Company's customers, are experiencing financial difficulties which
increase the risk of extending credit to such retailers. Many retailers
have attempted to improve their own operating efficiencies by
concentrating their purchasing power among an increasingly small group
of vendors. There can be no assurance that the Company will remain a
preferred vendor for its existing customers. A decrease in business
from, or loss of, a major customer could have a material adverse effect
on the Company's results of operations. In addition, there can be no
assurance that the Company's factor will approve the extension of
credit to certain retail customers in the future. If a customer's
credit is not approved by the factor, the Company could either assume
the collection risk on sales to such customer itself, or choose not to
make sales to such customer.
VARIABILITY OF QUARTERLY RESULTS. The Company has experienced, and
expects to continue to experience, variability in its net sales and
operating results on a quarterly basis. The Company believes the
factors which influence this variability include (i) the timing of the
Company's introduction of new apparel collections, (ii) the level of
consumer acceptance of each new collection, (iii) general economic and
industry conditions that affect consumer spending and retailer
purchasing, (iv) the timing of the placement or cancellation of
customer orders, (v) the timing of expenditures in anticipation of
increased sales and customer delivery requirements, (vi) the weather
and (vii) actions of competitors. In addition, the women's apparel
business is highly seasonal.
RELIANCE ON KEY PERSONNEL. The operations of the Company depend to a
great extent on the efforts of its senior management, including Vinton
W. Bacon, Larry Brahim, Theodore B. Cooper, Jeffrey L. Friedman and Jan
L. Grossman. The extended loss of the services of one or more of these
individuals could have a materially adverse effect on the Company's
operations.
IMPACT OF FOREIGN OPERATIONS. In July 1994, the Company commenced
manufacturing products abroad. As a result, the Company's operations
are subject to the customary risks of doing business abroad, including,
but not limited to, transportation delays, political instability,
12
<PAGE> 13
expropriation, currency fluctuations and the imposition of tariffs,
import and export controls and other non-tariff barriers (including
changes in the allocation of quotas).
PART II - OTHER INFORMATION
Item 1. Legal Proceedings. None
Item 2. Changes in Securities. None
Item 3. Defaults Upon Senior Securities. None
Item 4. Submission of Matters to a Vote of Security Holders. None
Item 5. Other Information. None
Item 6. Exhibits and Reports on Form 8-k.
Exhibits. The following is a list of exhibits filed as a part of this
report.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
3.1 Restated Articles of Incorporation of the Company [3.1*] (1)
3.2 Bylaws of the Company [3.2*] (1)
3.3 Certificate of Amendment dated February 25, 1997, of Restated Article of
Incorporation of Jalate, Ltd. (10.60*) (10)
4.1 Form of stock certificate [4.3*] (2)
4.2 Underwriters' Warrant Agreement dated March 16, 1994, among the Company,
H.J. Meyers & Co., Inc. and Sanders Morris Mundy Inc. [4.2*] (6)
10.1 Employment Agreement dated as of January 1, 1993, between the Company and
Larry Brahim [10.1*] (1)
10.2 Employment Agreement dated as of January 1, 1993, between the Company and
Theodore B. Cooper [10.2*] (1)
10.3 Employment Agreement dated as of January 1, 1993, between the Company and
Jeffrey L. Friedman [10.3*] (1)
10.4 Employment Agreement dated as of January 1, 1993, between the Company and
Jan L. Grossman [10.4*] (1)
10.5 Employment Agreement dated as of February 17, 1994, between the Company and
Martin Zwiebach [10.5*] (2)
10.6 Indemnification Agreement dated as of October 21, 1993, between the Company
and Larry Brahim [10.6*] (1)
10.7 Indemnification Agreement dated as of October 21, 1993, between the Company
and Theodore B. Cooper [10.7*] (1)
10.8 Indemnification Agreement dated as of October 21, 1993, between the Company
and Jeffrey L. Friedman [10.8*] (1)
10.9 Indemnification Agreement dated as of October 21, 1993, between the Company
and Jan L. Grossman [10.9*] (1)
10.10 Jalate, Ltd. 1993 Stock Incentive Plan, together with forms of stock option
and restricted stock agreements [10.10*] (1)
</TABLE>
13
<PAGE> 14
<TABLE>
<CAPTION>
<S> <C>
10.11 Standard Industrial/Commercial Single-Tenant
Lease-Gross dated September 8, 1993, between Swede
Sportswear Co., Inc., as lessor, and the Company, as
lessee [10.11*] (1)
10.12 Standard Industrial Lease - Net dated August 15, 1988, between Flora E.
Maclise and Chairman E. Robinson, as lessor, and the Company, as lessee
[10.12*] (1)
10.13 Lease dated November 7, 1989, between California Mart, as lessor, and the
Company, as lessee [10.13*] (1)
10.14 Standard Industrial Lease - Multi-Tenant dated August 21, 1992, between
Eugene J. Mulholland and Leonor Mulholland, D/B/A Contract Associates, as
lessor, and the Company, as lessee [10.14*] (1)
10.15 Discount Factoring Agreement dated August 17, 1987, between Congress Talcott
Corporation and the Company, as amended [10.15*] (1)
10.16 Underwriting Agreement dated March 16, 1994, among the Company, H.J. Meyers
& Co., Inc. and Sanders Morris Mundy Inc. [10.16*] (6)
10.17 Lease dated March 15, 1994, between the Company and Gettinger Associates
[10.16*] (3)
10.18 Letter agreement dated April 21, 1994, between the Company and Congress
Talcott Corporation [10.17*] (4)
10.19 Letter agreement dated April 21, 1994, between the Company and Congress
Talcott Corporation (10.18*] (4)
10.20 Standard Form Month-to-Month Lease dated June 7, 1994, between the Company
and Jack Litt Trust [10.19*] (4)
10.21 Master Equipment Lease dated July 5, 1994, between the Company and
XL/Datacomp, Inc. [10.20*] (4)
10.22 Articles of Incorporation of Linroz Manufacturing, Inc. [10.21*] (5)
10.23 Bylaws of Linroz Manufacturing, Inc. [10.22*] (5)
10.24 Agreement of Limited Partnership of Linroz Manufacturing Company, L.P.
[10.23*] (5)
10.26 Standard Industrial/Commercial Single Tenant Lease - Gross dated October 11, 1994,
by the Company, as lessee, and George Familian Testamentary Trust, as lessor as
amended [10.25*] (5)
10.27 Letter agreement dated December 16, 1994, between the Company and Congress
Talcott Corporation [10.26*] (6)
10.28 Consulting Agreement dated August 9, 1995, between the Company and Martin
Zwiebach [10.28*] (7)
10.29 Letter agreement dated May 17, 1995, between the Company and Congress
Talcott Corporation (Western) [10.29*] (7)
10.30 Letter Agreement dated May 17, 1995, between the Company and Congress
Talcott Corporation (Western) [10.30*] (7)
10.31 Promissory Note dated May 5, 1995 in the principal amount of $306,247.99
payable by Linroz Manufacturing Company, L.P. (the "Joint Venture") to
General Electric Capital Corporation ("GECC") [10.31*] (7)
10.32 Master Security Agreement dated March 24, 1995,
between GECC, as secured party, and the Joint Venture,
as debtor [10.32*] (7)
</TABLE>
14
<PAGE> 15
<TABLE>
<CAPTION>
<S> <C>
10.33 Commercial Credit Agreement dated July 24, 1995, between the Company and The
Hongkong and Shanghai Banking Corporation Limited [10.26*] (8)
10.34 Continuing Commercial Letter of Credit and Security Agreement, between the
Company and The Hongkong and Shanghai Banking Corporation Limited [10.27*]
(8)
10.35 Optional Advance Time Note (Loans Against Imports) dated July 24, 1995 in
the amount of U.S. $3,000,000 by the Company in favor of The Hongkong and
Shanghai Banking Corporation Limited [10.28*] (8)
10.36 General Security Agreement dated July 24, 1995, between the Company and The
Hongkong and Shanghai Banking Corporation Limited [10.29*] (8)
10.37 Continuing Standby Letter of Credit and Security Agreement dated July 24,
1995, between the Company and The Hongkong and Shanghai Banking Corporation
Limited [10.30*] (8)
10.38 Continuing Indemnity Agreement dated July 24, 1995, between the Company and
The Hongkong and Shanghai Banking Corporation Limited [10.38*] (8)
10.39 Promissory Noted dated October 1, 1995 in the amount of $34,000 by Larry
Brahim in favor of the Company [10.32*] (8)
10.40 Promissory Note dated October 1, 1995 in the amount of $68,000, by Theodore
B. Cooper in favor of the Company [10.33*] (8)
10.41 Letter agreement dated January 24, 1996, between the Company and I.S.K.,
Inc. (10.41*) (6)
10.42 Engagement Agreement dated July 17, 1995, between the Company and Sonoma
Group, Inc. (10.42*) (6)
10.43 Employment Agreement dated December 1, 1995, between the Company and Vinton
W. Bacon. (10.43*) (6)
10.44 Indemnification Agreement dated January 1, 1996, between the Company and
Vinton W. Bacon. (10.46*) (6)
10.45 Indemnification Agreement dated March 26, 1994, between the Company and
Allan E. Dalshaug. (10.47*) (6)
10.46 Indemnification Agreement dated August 21, 1995, between the Company and I.
Jay Goldfarb. (10.48*) (6)
10.47 Indemnification Agreement dated March 26, 1994, between the Company and
Howard L. Hughes. (10.49*) (6)
10.48 Indemnification Agreement dated January 1, 1996, between the Company and
Phillip C. Levin. (10.50*) (6)
10.49 First Amendment to Commercial Credit Agreement dated as of February 29,
1996, between the Company and Wells Fargo HSBC Trade Bank, N.A. (formerly,
The Hongkong and Shanghai Banking Corporation Limited). (10.51*) (6)
10.50 Letter agreement dated February 16, 1996, between the Company and Congress
Talcott Corporation (Western). (10.52*) (6)
10.51 Employment Agreement with Frederick A. Findley dated May 6, 1996. (10.53*) (10)
10.52 Indemnity Agreement with Frederick A. Findley dated January 1, 1996. (10.54*) (10)
10.53 Continuing Credit Agreement dated June 1, 1996, between the Company and the
Wells Fargo HSBC Trade Bank, N.A. (Formerly, The Hong Kong and Shanghai
Banking Corporation Limited. (10.55*) (10)
</TABLE>
15
<PAGE> 16
<TABLE>
<CAPTION>
<S> <C>
10.54 First Amendment to Agreement dated November 30, 1996 between the Company and
Wells Fargo HSBC Trade Bank, N.A. (10.56*) (10)
10.55 Letter Agreement dated July 25, 1996, between the Company and Congress
Talcott Corporation (Western). (10.57*) (10)
10.56 Letter Agreement dated March 4, 1997, between the Company and Congress
Talcott Corporation (Western). (10.58*) (10)
10.57 Second Amendment to Agreement dated March 17, 1997,
between the Company and Wells Fargo HSBC Trade Bank,
N.A. (10.59*) (10)
10.58 Indemnification Agreement dated August 1, 1996, between the Company and
Victor K. Nichols.
10.59 Indemnification Agreement dated August 1, 1996, between the Company and
William Soady.
27 Financial Data Schedule
</TABLE>
* Indicates the exhibit number of the document in the original filing.
1. Filed as an exhibit to the Company's Registration Statement on Form
S-1 filed with the Securities and Exchange Commission on February 24,
1994 (File No. 33-75694).
2. Filed as an exhibit to Amendment No. 1 to Registration Statement on
Form S-1 filed with the Securities and Exchange Commission on March
16, 1994.
3. Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1994.
4. Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1994.
5. Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1994.
6. Filed as a exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1995.
7. Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1995.
8. Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1995.
9. Filed as an exhibit to the Company's Quarterly report on Form 10-Q for
the quarter ended September 30, 1995.
10. Filed as an exhibit to the Company's Annual Report on Form 10-K for
the year ended December 31, 1996.
b. Reports on Form 8-k - None
16
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
JALATE, LTD.
Date: May 12, 1997 By /s/ FREDERICK A. FINDLEY
-----------------------------------
FREDERICK A. FINDLEY
Chief Financial Officer
17
<PAGE> 1
EXHIBIT 10.58
INDEMNIFICATION AGREEMENT
This Indemnification Agreement, dated as of January 1, 1996, is made by and
between JALATE, Ltd., a California corporation (the "Company"), and Victor
Nichols, a director of the Company (the "Indemnitee").
RECITALS
A. The Company and the Indemnitee recognize that the present state of the law is
too uncertain to provide the Company's officers and directors with adequate and
reliable advance knowledge or guidance with respect to the legal risks and
potential liabilities to which they may become personally exposed as a result of
performing their duties for the Company;
B. The Company and the Indemnitee are aware of the substantial growth in the
number of lawsuits filed against corporate officers and directors in connection
with their activities in such capacities and by reason of their status as such;
C. The Company and the Indemnitee recognize that the cost of defending against
such lawsuits, whether or meritorious, is typically beyond the financial
resources of most officers and directors of the Company;
D. The Company and the Indemnitee recognize that the legal risks and potential
liabilities, and the threat thereof, associated with proceedings filed against
the officers and directors of the Company bear no reasonable relationship to the
amount of compensation received by the Company's officers and directors;
E. The Company, after reasonable investigation prior to the date hereof, has
determined that the liability insurance coverage available to the Company as of
the date hereof is inadequate, unreasonable expensive or both. The Company
believes, therefore, that the interest of the Company's shareholders would be
best served by a combination of (I) such insurance as the Company may obtain
pursuant to the Company's obligations hereunder and (ii) a contract with its
officers and directors, including the Indemnitee, to indemnify them to the
fullest extent permitted by law (as in effect on the date hereof, or, to the
extent any amendment may expand such permitted indemnification, as hereafter in
effect) against personal liability for actions taken in the performance of their
duties to the Company;
F. Section 317 of the California General Corporation Law empowers California
corporations to indemnify their officers and directors and further states that
the indemnification provided by Section 317 "shall not be deemed exclusive of
any other rights to which those seeking indemnification may be entitled under
any bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office, to the extent such additional rights to
indemnification are authorized in the articles of the corporation"; thus,
Section 317 does not by itself limit the extent to which the Company may
indemnify persons serving as its officers and directors;
1
<PAGE> 2
G. The Company's Articles of Incorporation and Bylaws authorize the
indemnification of the officers and directors of the Company in excess of that
expressly permitted by Section 317, subject to the limitations set forth in
Section 204 (a) (11) of the California General Corporation Law, or limitations
set forth in a statute, regulation or rule promulgated by any state or federal
regulatory agency with jurisdiction over the Company's activities;
H. The Board of Directors of the Company has concluded that, to retain and
attract talented and experienced individuals to serve as officers and directors
of the Company and to encourage such individuals to take the business risks
necessary for the success of the Company, it is necessary for the Company to
contractually indemnify its officers and directors, and to assume for itself
liability for expenses and damages in connection with claims against such
officers and directors in connection with their service to the Company, and has
further concluded that the failure to provide such contractual indemnification
could result in great harm to the Company and its shareholders;
I. The Company desires and has requested the Indemnitee to serve or continue to
serve as a director or officer of the Company, free from undue concern for the
risks and potential liabilities associated with such services to the Company;
and
J. The indemnitee is willing to serve, or continue to serve, the Company,
provided, and on the expressed condition, that he is furnished with the
indemnification provided for herein.
AGREEMENT
NOW, THEREFORE, the Company and indemnitee agree as follows:
1. DEFINITIONS.
(a) "Expenses" means, for the purposes of this Agreement, all direct and
indirect costs of any type or nature whatsoever (including, without limitation,
any fees and disbursements of Indemnitee's counsel, accountants and other
experts and other out-of-pocket costs) actually and reasonably incurred by the
Indemnitee in connection with the investigation, preparation, defense or appeal
of a Proceeding; provided, however, that Expenses shall not include judgments,
fines, penalties or amounts paid in settlement of a Proceeding.
(b) "Proceeding" means, for the purposes of this Agreement, any
threatened, pending or completed action or proceeding, whether civil, criminal,
administrative or investigative (including an action brought by or in the right
of the Company) in which Indemnitee may be or may have been involved as a party
or otherwise, by reason of the fact that Indemnitee is or was a director or
officer of the Company, by reason of any action taken by him or of any inaction
on his part, whether before or after the date hereof, while acting as such
director or officer or by reason of the fact that he is or was serving at the
request of the Company as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust or other
enterprise, or was a director or officer of the foreign or domestic corporation
which was a predecessor corporation to the Company or of another enterprise at
the request of such predecessor corporation, whether or not he is serving in
such capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided under this Agreement.
2. AGREEMENT TO SERVE. Indemnitee agrees to serve or continue to serve as a
director or officer of the Company to the best of his abilities at the will of
the Company or under separate contract, if such contract exists, for so long as
Indemnitee is duly elected or appointed and qualified or until such time as he
tenders his
2
<PAGE> 3
resignation in writing. Nothing contained in this Agreement is intended to
create in Indemnitee any right to continued employment.
3. INDEMNIFICATION
(a) THIRD PARTY PROCEEDINGS. The Company shall indemnify Indemnitee
against Expenses, judgments, fines, penalties or amounts paid in settlement (if
the settlement is approved in advance by the Company) actually and reasonably
incurred by Indemnitee in connection with a Proceeding (other than a Proceeding
by or in the right of the Company) if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in 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 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 the best interests of the Company, or, with respect
to any criminal Proceeding, had no reasonable cause to believe that Indemnitee's
conduct was unlawful.
(b) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. To the fullest extent
permitted by law, the Company shall indemnify Indemnitee against Expenses and
amounts paid in settlement, actually and reasonably incurred by Indemnitee in
connection with a Proceeding by or in the right of the Company to procure a
judgment in its favor in Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the best interests of the company and
its shareholders. Notwithstanding the foregoing, no indemnification shall be
made in respect of any claim, issue or matter as to which Indemnitee shall have
been adjudged liable to the Company in the performance of Indemnitee's duty to
the Company and its shareholders 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 indemnify for expenses and then only to the
extent that the court shall determine.
(c) SCOPE. Notwithstanding any other provision of this Agreement but
subject to Section 14(b), the Company shall indemnify the Indemnitee to the
fullest extent permitted by law, notwithstanding that such indemnification is
not specifically authorized by other provisions of this Agreement, the Company's
restated Articles of Incorporation, the Company's Bylaws or by statute.
4. LIMITATIONS ON INDEMNIFICATION. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) EXCLUDED ACTS. To indemnify Indemnitee for any acts or omissions or
transactions from which a director may not be relieved of liability under
section 204 of the California General Corporation Law;
(b) EXCLUDED INDEMNIFICATION PAYMENTS. To indemnify or advance Expenses in
violation of any prohibition or limitation on indemnification under the
statutes, regulations or rules promulgated by any state or federal regulatory
agency having jurisdiction over the Company.
(c) CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance Expenses to
Indemnitee with respect to Proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required under
Section 317 of the California General Corporation Law, but such indemnification
or advancement of Expenses may be provided by the Company in specific cases if
the Board of Directors has approved the initiation or bringing of such suit;
3
<PAGE> 4
(d) LACK OF GOOD FAITH. To indemnify Indemnitee for any Expenses incurred
by the Indemnitee with respect to any proceeding instituted by Indemnitee to
enforce or interpret this Agreement, if a court of competent jurisdiction
determines that each of the material assertions made by the Indemnitee in such
proceeding was not made in good faith or was frivolous;
(e) INSURED CLAIMS. To indemnify Indemnitee for Expenses or liabilities of
any type whatsoever (including, but not limited to, judgments, fines, ERISA
excise taxes or penalties, and amounts paid in settlement) which have been paid
directly to or on behalf of Indemnitee by an insurance carrier under a policy of
directors' and officers' liability insurance maintained by the Company or any
other policy of insurance maintained by the Company or Indemnitee;
(f) CLAIMS UNDER SECTION 16(B). To Indemnify Indemnitee for Expenses and
the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities and Exchange Act of
1934, as amended, or any similar successor statute.
5. DETERMINATION OF RIGHT TO INDEMNIFICATION.
Upon receipt of a written claim addressed to the Board of Directors for
indemnification pursuant to Section 3, the Company shall determine by any of the
methods set forth in Section 317(e) of the California General Corporation Law
whether Indemnitee has met the applicable standards of conduct which makes it
permissible under applicable law to indemnify Indemnitee. If a claim under
Section 3 is not paid in full by the Company within ninety (90) days after such
written claim has been received by the Company, the Indemnitee may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim and, unless such action is dismissed by the court as frivolous or brought
in bad faith, the Indemnitee shall be entitled to be paid also the expense of
prosecuting such claim. The court in which such action is brought shall
determine whether Indemnitee has or has not met the applicable standard of
conduct.
6. ADVANCEMENT AND REPAYMENT OF EXPENSES.
Subject to Section 4 hereof, the Expenses incurred by Indemnitee in
defending and investigating any Proceeding shall be paid by the Company in
advance of the final disposition of such Proceeding within 30 days after
receiving from Indemnitee the copies of invoices presented to Indemnitee for
such Expenses, if Indemnitee shall provide an undertaking to the Company to
repay such amount to the extent it is ultimately determined that Indemnitee is
not entitled to indemnification. In determining whether or not to make an
advance thereunder, the ability of Indemnitee to repay shall not be a factor.
Notwithstanding the foregoing, in a proceeding brought by the Company directly,
in its own right ( as distinguished from an action brought derivatively or by
any receiver or trustee), the Company shall not be required to make the advances
called for hereby if the Board of Directors determines, in its sole discretion,
that it does not appear that Indemnitee has met the standards of conduct which
make it permissible under applicable law to indemnify Indemnitee and the
advancement of Expenses would not be in the best interests of the company and
its shareholders.
7. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any provision of
this Agreement to indemnification or advancement by the Company of some or a
portion of any Expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, penalties, and amounts paid in settlement)
incurred by him in the investigation, defense, settlement or appeal of a
Proceeding, but is not entitled to indemnification or advancement of the total
amount thereof, the Company shall nevertheless indemnify or pay advancements to
the Indemnitee for the portion of such Expenses or liabilities to which the
Indemnitee is entitled.
4
<PAGE> 5
8. NOTICE TO COMPANY BY INDEMNITEE. Indemnitee shall notify the Company in
writing of any matter with respect to which Indemnitee intends to seek
indemnification hereunder as soon as reasonably practicable following the
receipt by Indemnitee of written notice thereof; provided, however, that any
delay in so notifying the Company shall not constitute a waiver by Indemnitee of
his rights hereunder. The written notification to the Company shall be addressed
to the Board of Directors and shall include a description of the nature of the
Proceeding and the facts underlying the Proceeding and be accompanied by copies
of any documents filed with the court in which the proceeding is pending. In
addition, Indemnitee shall give the Company such information and cooperation as
it may reasonably require and as shall be within Indemnitee's power.
9. MAINTENANCE OF LIABILITY INSURANCE.
(a) Subject to Section 4 hereof, the Company hereby agrees that so long as
Indemnitee shall continue to serve as a director or officer of the company and
thereafter so long as Indemnitee shall be subject to any possible Proceeding,
the Company, subject to Section 9(b), shall use its best efforts to obtain and
maintain in full force and effect directors' and officers' liability insurance
("D&O Insurance") which provides Indemnitee the same rights and benefits as are
accorded to the most favorably insured of the Company's directors, if Indemnitee
is a director; or of the Company's officers, if Indemnitee is not a director of
the Company but is an officer.
(b) Notwithstanding the foregoing, the Company shall have no obligation to
obtain or maintain D&O Insurance if the Company determines in good faith that
such insurance is not reasonably available, the premium costs for such insurance
are disproportionate to the amount of coverage provided, the coverage provided
by such insurance is limited by exclusions so as to provide an insufficient
benefit, or the Indemnitee is covered by similar insurance maintained by a
subsidiary or parent of the Company.
(c) Notice to Insurers. If, at the time of the receipt of a notice of a
claim pursuant to Section 8 hereof, the Company has D&O 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, all amounts payable as a
result of such Proceeding in accordance with the terms of such policies.
10. DEFENSE OF CLAIM. In the event that the Company shall be obligated under
Section 6 hereof to pay the Expenses of any Proceeding against Indemnitee, the
Company, if appropriate, shall be entitled to assume the defense of such
Proceeding, with counsel approved by Indemnitee, which approval shall not be
unreasonably withheld, upon the delivery to Indemnitee of written notice of its
election to do so. After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same Proceeding,
provided that (i)Indemnitee shall have the right to employ his counsel in any
such Proceeding at Indemnitee's expense; and (ii) if (A) the employment of
counsel by Indemnitee has been previously authorized by the Company, or (B)
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee in the conduct of such defense
or (C) the Company shall not, in fact, have employed counsel to assume the
defense of such Proceeding, then the fees and expenses of Indemnitee's counsel
shall be at the expense of the Company.
11. ATTORNEYS' FEES. In the event that Indemnitee or the Company institutes an
action to enforce or interpret any terms of this Agreement, the Company shall
reimburse Indemnitee for all of the Indemnitee's reasonable fees and expenses in
bringing and pursuing such action or defense, unless as part of such action or
defense, a court of competent jurisdiction determines that the material
assertions made by Indemnitee as a basis for such action or defense were not
made in good faith or were frivolous.
5
<PAGE> 6
12. CONTINUATION OF OBLIGATIONS. All agreements and obligations of the Company
contained herein shall continue during the period the Indemnitee is a director
or officer of the Company, or is or was serving at the request of the Company as
a director, officer, fiduciary, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, and shall continue
thereafter so long as the Indemnitee shall be subject to any possible proceeding
by reason of the fact that Indemnitee served in any capacity referred to herein.
13. SUCCESSORS AND ASSIGNS. This Agreement establishes contract rights that
shall be binding upon, and shall incur to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto.
14. NON-EXCLUSIVITY.
(a) The provisions for indemnification and advancement of expenses set
forth in this Agreement shall not be deemed to be exclusive of any other rights
that the Indemnitee may have under any provision of law, the company's Restated
Articles of Incorporation or Bylaws, the vote of the company's shareholders or
disinterested directors, other agreements or otherwise, both as to action in his
official capacity and action in another capacity while occupying his position as
a director or officer of the company.
(b) In the event of any changes, after the date of this Agreement, in any
applicable law, statute, or rule which expanse the right of a California
corporation to indemnify its officers and directors, the Indemnitee's rights and
the company's obligations under this Agreement shall be expended to the full
extent permitted by such changes. In the event of any changes in any applicable
law, statute or rule, which narrow the right of a California corporation to
indemnify a director or officer, such changes, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement, shall
have no effect on this Agreement or parties' rights and obligations hereunder.
15. EFFECTIVENESS OF AGREEMENT. To the extent that the indemnification permitted
under the terms of certain provisions of this Agreement exceeds the scope of the
indemnification provided for in the California General Corporation Law, such
provisions shall not be effective unless and until the Company's Restated
Articles of Incorporation authorized such additional rights of indemnification.
In all other respects, the balance of this Agreement shall be effective as of
the date set forth on the first page and may apply to acts of omissions of
Indemnitee which occurred prior to such date if Indemnitee was an officer,
director, employee or other agent of the Company, 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, at the time such act or
omission occurred.
16. SEVERABILITY. Nothing in this Agreement is intended to require to shall be
construed as requiring the Company to do or fail to do any act in violation of
applicable law. The Company's inability, pursuant to court order, to perform its
obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable as provided in
this Section 16. If this Agreement or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
17. GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of California. To the extent permitted by
applicable law, the parties hereby waived any provisions of law which render any
provision of this Agreement unenforceable in any respect.
6
<PAGE> 7
18. NOTICE. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (I) if delivered by
hand and receipted by the party addressee or (ii) if mailed by certified or
registered mail with postage prepaid, on the third business day after the
mailing date. Addresses for notice to either party are as shown on the signature
page of this Agreement, or as subsequently modified by written notice.
19. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge that in
certain instances, federal law or applicable public policy may prohibit the
Company from indemnifying its directors and officers under this Agreement or
otherwise. Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the appropriate
state or federal regulatory agency to submit for approval any request for
indemnification, and has undertaken or may be required in the future to
undertake with the Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of the
Company's right under public policy to indemnify Indemnitee.
20. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original.
21. AMENDMENT AND TERMINATION. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth above.
JALATE, LTD.
1675 South Alameda Street
Los Angeles, CA 90021
By________________________
INDEMNITEE:
- --------------------------------------
7
<PAGE> 1
EXHIBIT 10.59
INDEMNIFICATION AGREEMENT
This Indemnification Agreement, dated as of January 1, 1996, is made by and
between JALATE, Ltd., a California corporation (the "Company"), and William S.
Soady, a director of the Company (the "Indemnitee").
RECITALS
A. The Company and the Indemnitee recognize that the present state of the law is
too uncertain to provide the Company's officers and directors with adequate and
reliable advance knowledge or guidance with respect to the legal risks and
potential liabilities to which they may become personally exposed as a result of
performing their duties for the Company;
B. The Company and the Indemnitee are aware of the substantial growth in the
number of lawsuits filed against corporate officers and directors in connection
with their activities in such capacities and by reason of their status as such;
C. The Company and the Indemnitee recognize that the cost of defending against
such lawsuits, whether or meritorious, is typically beyond the financial
resources of most officers and directors of the Company;
D. The Company and the Indemnitee recognize that the legal risks and potential
liabilities, and the threat thereof, associated with proceedings filed against
the officers and directors of the Company bear no reasonable relationship to the
amount of compensation received by the Company's officers and directors;
E. The Company, after reasonable investigation prior to the date hereof, has
determined that the liability insurance coverage available to the Company as of
the date hereof is inadequate, unreasonable expensive or both. The Company
believes, therefore, that the interest of the Company's shareholders would be
best served by a combination of (I) such insurance as the Company may obtain
pursuant to the Company's obligations hereunder and (ii) a contract with its
officers and directors, including the Indemnitee, to indemnify them to the
fullest extent permitted by law (as in effect on the date hereof, or, to the
extent any amendment may expand such permitted indemnification, as hereafter in
effect) against personal liability for actions taken in the performance of their
duties to the Company;
F. Section 317 of the California General Corporation Law empowers California
corporations to indemnify their officers and directors and further states that
the indemnification provided by Section 317 "shall not be deemed exclusive of
any other rights to which those seeking indemnification may be entitled under
any bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office, to the extent such additional rights to
indemnification are authorized in the articles of the corporation"; thus,
Section 317 does not by itself limit the extent to which the Company may
indemnify persons serving as its officers and directors;
1
<PAGE> 2
G. The Company's Articles of Incorporation and Bylaws authorize the
indemnification of the officers and directors of the Company in excess of that
expressly permitted by Section 317, subject to the limitations set forth in
Section 204 (a) (11) of the California General Corporation Law, or limitations
set forth in a statute, regulation or rule promulgated by any state or federal
regulatory agency with jurisdiction over the Company's activities;
H. The Board of Directors of the Company has concluded that, to retain and
attract talented and experienced individuals to serve as officers and directors
of the Company and to encourage such individuals to take the business risks
necessary for the success of the Company, it is necessary for the Company to
contractually indemnify its officers and directors, and to assume for itself
liability for expenses and damages in connection with claims against such
officers and directors in connection with their service to the Company, and has
further concluded that the failure to provide such contractual indemnification
could result in great harm to the Company and its shareholders;
I. The Company desires and has requested the Indemnitee to serve or continue to
serve as a director or officer of the Company, free from undue concern for the
risks and potential liabilities associated with such services to the Company;
and
J. The indemnitee is willing to serve, or continue to serve, the Company,
provided, and on the expressed condition, that he is furnished with the
indemnification provided for herein.
AGREEMENT
NOW, THEREFORE, the Company and indemnitee agree as follows:
1. DEFINITIONS.
(a) "Expenses" means, for the purposes of this Agreement, all direct and
indirect costs of any type or nature whatsoever (including, without limitation,
any fees and disbursements of Indemnitee's counsel, accountants and other
experts and other out-of-pocket costs) actually and reasonably incurred by the
Indemnitee in connection with the investigation, preparation, defense or appeal
of a Proceeding; provided, however, that Expenses shall not include judgments,
fines, penalties or amounts paid in settlement of a Proceeding.
(b) "Proceeding" means, for the purposes of this Agreement, any
threatened, pending or completed action or proceeding, whether civil, criminal,
administrative or investigative (including an action brought by or in the right
of the Company) in which Indemnitee may be or may have been involved as a party
or otherwise, by reason of the fact that Indemnitee is or was a director or
officer of the Company, by reason of any action taken by him or of any inaction
on his part, whether before or after the date hereof, while acting as such
director or officer or by reason of the fact that he is or was serving at the
request of the Company as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust or other
enterprise, or was a director or officer of the foreign or domestic corporation
which was a predecessor corporation to the Company or of another enterprise at
the request of such predecessor corporation, whether or not he is serving in
such capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided under this Agreement.
2. AGREEMENT TO SERVE. Indemnitee agrees to serve or continue to serve as a
director or officer of the Company to the best of his abilities at the will of
the Company or under separate contract, if such contract exists, for so long as
Indemnitee is duly elected or appointed and qualified or until such time as he
tenders his
2
<PAGE> 3
resignation in writing. Nothing contained in this Agreement is intended to
create in Indemnitee any right to continued employment.
3. INDEMNIFICATION
(a) THIRD PARTY PROCEEDINGS. The Company shall indemnify Indemnitee
against Expenses, judgments, fines, penalties or amounts paid in settlement (if
the settlement is approved in advance by the Company) actually and reasonably
incurred by Indemnitee in connection with a Proceeding (other than a Proceeding
by or in the right of the Company) if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in 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 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 the best interests of the Company, or, with respect
to any criminal Proceeding, had no reasonable cause to believe that Indemnitee's
conduct was unlawful.
(b) PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. To the fullest extent
permitted by law, the Company shall indemnify Indemnitee against Expenses and
amounts paid in settlement, actually and reasonably incurred by Indemnitee in
connection with a Proceeding by or in the right of the Company to procure a
judgment in its favor in Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the best interests of the company and
its shareholders. Notwithstanding the foregoing, no indemnification shall be
made in respect of any claim, issue or matter as to which Indemnitee shall have
been adjudged liable to the Company in the performance of Indemnitee's duty to
the Company and its shareholders 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 indemniy for expenses and then only to the
extent that the court shall determine.
(c) SCOPE. Notwithstanding any other provision of this Agreement but
subject to Section 14(b), the Company shall indemnify the Indemnitee to the
fullest extent permitted by law, notwithstanding that such indemnification is
not specifically authorized by other provisions of this Agreement, the Company's
restated Articles of Incorporation, the Company's Bylaws or by statute.
4. LIMITATIONS ON INDEMNIFICATION. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) EXCLUDED ACTS. To indemnify Indemnitee for any acts or omissions or
transactions from which a director may not be relieved of liability under
section 204 of the California General Corporation Law;
(b) EXCLUDED INDEMNIFICATION PAYMENTS. To indemnify or advance Expenses in
violation of any prohibition or limitation on indemnification under the
statutes, regulations or rules promulgated by any state or federal regulatory
agency having jurisdiction over the Company.
(c) CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance Expenses to
Indemnitee with respect to Proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to indemnification under
this Agreement or any other statute or law or otherwise as required under
Section 317 of the California General Corporation Law, but such indemnification
or advancement of Expenses may be provided by the Company in specific cases if
the Board of Directors has approved the initiation or bringing of such suit;
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<PAGE> 4
(d) LACK OF GOOD FAITH. To indemnify Indemnitee for any Expenses incurred
by the Indemnitee with respect to any proceeding instituted by Indemnitee to
enforce or interpret this Agreement, if a court of competent jurisdiction
determines that each of the material assertions made by the Indemnitee in such
proceeding was not made in good faith or was frivolous;
(e) INSURED CLAIMS. To indemnify Indemnitee for Expenses or liabilities of
any type whatsoever (including, but not limited to, judgments, fines, ERISA
excise taxes or penalties, and amounts paid in settlement) which have been paid
directly to or on behalf of Indemnitee by an insurance carrier under a policy of
directors' and officers' liability insurance maintained by the Company or any
other policy of insurance maintained by the Company or Indemnitee;
(f) CLAIMS UNDER SECTION 16(B). To Indemnify Indemnitee for Expenses and
the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities and Exchange Act of
1934, as amended, or any similar successor statute.
5. DETERMINATION OF RIGHT TO INDEMNIFICATION.
Upon receipt of a written claim addressed to the Board of Directors for
indemnification pursuant to Section 3, the Company shall determine by any of the
methods set forth in Section 317(e) of the California General Corporation Law
whether Indemnitee has met the applicable standards of conduct which makes it
permissible under applicable law to indemnify Indemnitee. If a claim under
Section 3 is not paid in full by the Company within ninety (90) days after such
written claim has been received by the Company, the Indemnitee may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim and, unless such action is dismissed by the court as frivolous or brought
in bad faith, the Indemnitee shall be entitled to be paid also the expense of
prosecuting such claim. The court in which such action is brought shall
determine whether Indemnitee has or has not met the applicable standard of
conduct.
6. ADVANCEMENT AND REPAYMENT OF EXPENSES.
Subject to Section 4 hereof, the Expenses incurred by Indemnitee in
defending and investigating any Proceeding shall be paid by the Company in
advance of the final disposition of such Proceeding within 30 days after
receiving from Indemnitee the copies of invoices presented to Indemnitee for
such Expenses, if Indemnitee shall provide an undertaking to the Company to
repay such amount to the extent it is ultimately determined that Indemnitee is
not entitled to indemnification. In determining whether or not to make an
advance thereunder, the ability of Indemnitee to repay shall not be a factor.
Notwithstanding the foregoing, in a proceeding brought by the Company directly,
in its own right ( as distinguished from an action brought derivatively or by
any receiver or trustee), the Company shall not be required to make the advances
called for hereby if the Board of Directors determines, in its sole discretion,
that it does not appear that Indemnitee has met the standards of conduct which
make it permissible under applicable law to indemnify Indemnitee and the
advancement of Expenses would not be in the best interests of the company and
its shareholders.
7. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any provision of
this Agreement to indemnification or advancement by the Company of some or a
portion of any Expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, penalties, and amounts paid in settlement)
incurred by him in the investigation, defense, settlement or appeal of a
Proceeding, but is not entitled to indemnification or advancement of the total
amount thereof, the Company shall nevertheless indemnify or pay advancements to
the Indemnitee for the portion of such Expenses or liabilities to which the
Indemnitee is entitled.
4
<PAGE> 5
8. NOTICE TO COMPANY BY INDEMNITEE. Indemnitee shall notify the Company in
writing of any matter with respect to which Indemnitee intends to seek
indemnification hereunder as soon as reasonably practicable following the
receipt by Indemnitee of written notice thereof; provided, however, that any
delay in so notifying the Company shall not constitute a waiver by Indemnitee of
his rights hereunder. The written notification to the Company shall be addressed
to the Board of Directors and shall include a description of the nature of the
Proceeding and the facts underlying the Proceeding and be accompanied by copies
of any documents filed with the court in which the proceeding is pending. In
addition, Indemnitee shall give the Company such information and cooperation as
it may reasonably require and as shall be within Indemnitee's power.
9. MAINTENANCE OF LIABILITY INSURANCE.
(a) Subject to Section 4 hereof, the Company hereby agrees that so long as
Indemnitee shall continue to serve as a director or officer of the company and
thereafter so long as Indemnitee shall be subject to any possible Proceeding,
the Company, subject to Section 9(b), shall use its best efforts to obtain and
maintain in full force and effect directors' and officers' liability insurance
(`D&O Insurance") which provides Indemnitee the same rights and benefits as are
accorded to the most favorably insured of the Company's directors, if Indemnitee
is a director; or of the Company's officers, if Indemnitee is not a director of
the Company but is an officer.
(b) Notwithstanding the foregoing, the Company shall have no obligation to
obtain or maintain D&O Insurance if the Company determines in good faith that
such insurance is not reasonably available, the premium costs for such insurance
are disproportionate to the amount of coverage provided, the coverage provided
by such insurance is limited by exclusions so as to provide an insufficient
benefit, or the Indemnitee is covered by similar insurance maintained by a
subsidiary or parent of the Company.
(c) Notice to Insurers. If, at the time of the receipt of a notice of a
claim pursuant to Section 8 hereof, the Company has D&O 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, all amounts payable as a
result of such Proceeding in accordance with the terms of such policies.
10. DEFENSE OF CLAIM. In the event that the Company shall be obligated under
Section 6 hereof to pay the Expenses of any Proceeding against Indemnitee, the
Company, if appropriate, shall be entitled to assume the defense of such
Proceeding, with counsel approved by Indemnitee, which approval shall not be
unreasonably withheld, upon the delivery to Indemnitee of written notice of its
election to do so. After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same Proceeding,
provided that (i)Indemnitee shall have the right to employ his counsel in any
such Proceeding at Indemnitee's expense; and (ii) if (A) the employment of
counsel by Indemnitee has been previously authorized by the Company, or (B)
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and the Indemnitee in the conduct of such defense
or (C) the Company shall not, in fact, have employed counsel to assume the
defense of such Proceeding, then the fees and expenses of Indemnitee's counsel
shall be at the expense of the Company.
11. ATTORNEYS' FEES. In the event that Indemnitee or the Company institutes an
action to enforce or interpret any terms of this Agreement, the Company shall
reimburse Indemnitee for all of the Indemnitee's reasonable fees and expenses in
bringing and pursuing such action or defense, unless as part of such action or
defense, a court of competent jurisdiction determines that the material
assertions made by Indemnitee as a basis for such action or defense were not
made in good faith or were frivolous.
5
<PAGE> 6
12. CONTINUATION OF OBLIGATIONS. All agreements and obligations of the Company
contained herein shall continue during the period the Indemnitee is a director
or officer of the Company, or is or was serving at the request of the Company as
a director, officer, fiduciary, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, and shall continue
thereafter so long as the Indemnitee shall be subject to any possible proceeding
by reason of the fact that Indemnitee served in any capacity referred to herein.
13. SUCCESSORS AND ASSIGNS. This Agreement establishes contract rights that
shall be binding upon, and shall incur to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto.
14. NON-EXCLUSIVITY.
(a) The provisions for indemnification and advancement of expenses set
forth in this Agreement shall not be deemed to be exclusive of any other rights
that the Indemnitee may have under any provision of law, the company's Restated
Articles of Incorporation or Bylaws, the vote of the company's shareholders or
disinterested directors, other agreements or otherwise, both as to action in his
official capacity and action in another capacity while occupying his position as
a director or officer of the company.
(b) In the event of any changes, after the date of this Agreement, in any
applicable law, statute, or rule which expanse the right of a California
corporation to indemnify its officers and directors, the Indemnitee's rights and
the company's obligations under this Agreement shall be expended to the full
extent permitted by such changes. In the event of any changes in any applicable
law, statute or rule, which narrow the right of a California corporation to
indemnify a director or officer, such changes, to the extent not otherwise
required by such law, statute or rule to be applied to this Agreement, shall
have no effect on this Agreement or parties' rights and obligations hereunder.
15. EFFECTIVENESS OF AGREEMENT. To the extent that the indemnification permitted
under the terms of certain provisions of this Agreement exceeds the scope of the
indemnification provided for in the California General Corporation Law, such
provisions shall not be effective unless and until the Company's Restated
Articles of Incorporation authorized such additional rights of indemnification.
In all other respects, the balance of this Agreement shall be effective as of
the date set forth on the first page and may apply to acts of omissions of
Indemnitee which occurred prior to such date if Indemnitee was an officer,
director, employee or other agent of the Company, 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, at the time such act or
omission occurred.
16. SEVERABILITY. Nothing in this Agreement is intended to require to shall be
construed as requiring the Company to do or fail to do any act in violation of
applicable law. The Company's inability, pursuant to court order, to perform its
obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable as provided in
this Section 16. If this Agreement or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated, and the balance
of this Agreement not so invalidated shall be enforceable in accordance with its
terms.
17. GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of California. To the extent permitted by
applicable law, the parties hereby waived any provisions of law which render any
provision of this Agreement unenforceable in any respect.
6
<PAGE> 7
18. NOTICE. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (I) if delivered by
hand and receipted by the party addressee or (ii) if mailed by certified or
registered mail with postage prepaid, on the third business day after the
mailing date. Addresses for notice to either party are as shown on the signature
page of this Agreement, or as subsequently modified by written notice.
19. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge that in
certain instances, federal law or applicable public policy may prohibit the
Company from indemnifying its directors and officers under this Agreement or
otherwise. Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the appropriate
state or federal regulatory agency to submit for approval any request for
indemnification, and has undertaken or may be required in the future to
undertake with the Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of the
Company's right under public policy to indemnify Indemnitee.
20. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original.
21. AMENDMENT AND TERMINATION. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth above.
JALATE, LTD.
1675 South Alameda Street
Los Angeles, CA 90021
By________________________
INDEMNITEE:
- ---------------------------------------
7
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