Exhibit 10(d)
INDEMNITY AGREEMENT
This Agreement is made as of [Date], by and between XXXXXXX COMPANY, a
Michigan corporation (the "Company"), 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, and [Name]("Indemnitee"), whose address is [Address].
WHEREAS, it is essential to the Company to retain and attract as directors
and officers the most capable persons available; and
WHEREAS, the substantial increase in corporate litigation evidenced by
present trends subjects directors and officers to expensive litigation risks;
and
WHEREAS, it is now and has always been the express policy of the Company to
indemnify its directors and officers so as to provide them with the maximum
possible protection permitted by law; and
WHEREAS, the Act (as defined below) permits the Company to contractually
commit itself to increase the scope of indemnification of its directors and
officers beyond the indemnification rights provided for in the Act, and the
Company has determined under the circumstances that it is reasonable and
necessary and in the best interest of the Company and its shareholders to do so
in order to ensure that it can continue to attract and retain qualified persons
to serve as officers and directors of the Company.
NOW, THEREFORE, the parties agree as follows:
SECTION 1 DEFINITIONS. As used in this Agreement:
(a) "Act" means the Michigan Business Corporation Act in existence on
the date of this Agreement.
(b) "Change in Control" means a change in control of the Company after
the date of this Agreement of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any
similar item on any similar schedule or form) promulgated under the Securities
Exchange Act, whether or not the Company is then subject to such reporting
requirement; provided, however, that, without limitation, such a Change in
Control shall be deemed to have occurred if after the date of this Agreement (i)
any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company
representing 20 percent or more of the combined voting power of the Company's
then outstanding securities without the prior approval of at least eighty
percent (80%) of the members of the Board in office immediately prior to such
person attaining such percentage interest; (ii) the Company is a party to a
merger, consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board in office immediately
prior to such transaction or event constitute less than a majority of the Board
thereafter; or (iii) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board (including for this
purpose any new director whose election or nomination for election by the
Company's stockholders was approved by a vote of at least eighty
percent (80%) of the directors then still in office who were directors at the
beginning of such period) cease for any reason to constitute at least a majority
of the Board.
(c) "Corporate Position" means a director, officer, employee, agent
and/or fiduciary of the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which such person is
or was serving at the request of the Company. For the avoidance of doubt,
Indemnitee may serve in any one or more of such positions.
(d) "Disinterested Director" means a director of the Company who is
not and was not a party to or threatened to be made a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.
(e) "Expenses" shall mean all costs, expenses, and obligations paid or
incurred in connection with investigating, litigating, being a witness in,
defending or participating in, or preparing to litigate, defend, be a witness in
or participate in any matter that is the subject of a Proceeding, including
attorneys' and accountants' fees and court costs.
(f) "Independent Committee of the Board" means a committee of two or
more Disinterested Directors appointed by the Board of Directors of the Company
to determine the right of Indemnitee to be indemnified pursuant to the terms of
this Agreement and to act upon all other issues and matters relating to such
indemnification.
(g) "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent (i) the Company or
Indemnitee in any matter material to either such party, or (ii) any other party
to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the Company
or Indemnitee in an action to determine Indemnitee's rights under this
Agreement.
(h) "Independent Director" means a director of the Company designated
as an independent director pursuant to Section 450.1505(3) of the Michigan
Business Corporation Act now in effect.
(i) "Proceeding" shall mean any threatened, pending or completed
action, suit or proceeding, or any inquiry or investigation, whether brought by
or in the right of the Company or otherwise and whether of a civil, criminal,
administrative or investigative nature, in which Indemnitee may be or may have
been involved as a party or otherwise by reason of the fact that Indemnitee held
or holds a Corporate Position, or by reason of any action taken by Indemnitee or
any inaction on Indemnitee's part while acting in a Corporate Position, or by
reason of the fact that Indemnitee is or was serving at the request of the
Company in a Corporate Position of another corporation, or as a member, agent or
fiduciary of a partnership, joint venture, trust or other enterprise.
(j) "Resolution Costs" shall mean any amount, fine or penalty paid or
payable by Indemnitee in satisfaction of a final judgment entered by a court of
competent jurisdiction in any Proceeding or in settlement of any such
Proceeding.
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(k) "Securities Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time.
SECTION 2 AGREEMENT TO SERVE. Indemnitee agrees to serve in a Corporation
Position for so long as Indemnitee is duly elected or appointed or until
Indemnitee's death, permanent disability or written resignation from his or her
Corporate Position.
SECTION 3 INDEMNIFICATION.
(a) In any Proceeding other than a Proceeding by or in the right of
the Company, the Company shall indemnify Indemnitee against all Expenses and
Resolution Costs actually and reasonably incurred by Indemnitee in connection
with such Proceeding. Notwithstanding the preceding but subject to Section 4
below, no indemnification shall be made under this subsection unless otherwise
determined or directed by the court in which such proceeding was brought:
(i) with respect to remuneration paid to Indemnitee if it shall
be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(ii) on account of any suit in which a final judgment or other
final adjudication is rendered against Indemnitee for an accounting of profits
made from the purchase or sale by Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Securities Exchange Act and
amendments thereto or similar provisions of any federal, state or local law;
(iii) on account of Indemnitee's conduct which is determined by a
final judgment or other final adjudication to have been knowingly fraudulent,
deliberately dishonest or willfully wrong;
(iv) on account of Indemnitee's conduct which by a final judgment
or other final adjudication is determined to have been in bad faith and in
opposition to the best interests of the Company or to have produced an unlawful
personal benefit; or
(v) with respect to a criminal proceeding if the Indemnitee knew
or reasonably should have known that Indemnitee's conduct was illegal.
(b) The Company shall indemnify Indemnitee in accordance with the
provisions of this subsection (b) if Indemnitee is a party to or threatened to
be made a party to or otherwise involved in any Proceeding by or in the right of
the Company to procure a judgment in its favor by reason of the fact that
Indemnitee held or holds a Corporate Position, against all Expenses actually and
reasonably incurred by Indemnitee and any Resolution Costs paid by Indemnitee in
settlement of such Proceeding, but only if Indemnitee acted in good faith and in
a manner which Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company. Notwithstanding the preceding but subject to
Section 4 below, no indemnification shall be made under this subsection (b) in
respect of any claim, issue or matter as to which Indemnitee shall have been
finally adjudged to be liable to the Company in the performance of his or her
duty to the Company, unless and then only to the extent that any court in which
such proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of
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all the circumstances of the case, Indemnitee is fairly and reasonably entitled
to indemnification for such amount of Expenses as such court shall deem proper.
(c) In addition to any indemnification provided under subsection (a)
and (b) above, the Company shall indemnify Indemnitee against any Expenses
and/or Resolution Costs incurred by Indemnitee, regardless of the nature of the
Proceeding in which Expenses and/or Resolution Costs were incurred, if such
Expenses or Resolution Costs would have been covered under the directors' and
officers' liability insurance policies in effect on the effective date of this
Agreement or under any such insurance policies which become effective on any
subsequent date.
(d) The indemnification contemplated by this Agreement shall be to the
fullest extent now or hereafter allowed by law (whether statutory or common law)
as presently or hereafter enacted or interpreted. In this connection, if a
change in the Act or in the statutory laws of any other state under which the
Company, or its successor, is hereafter incorporated or the corporate offices of
the Company or its successor are hereafter located or relocated permits greater
or lesser indemnification, either by agreement or otherwise, than currently
provided by the Act or this Agreement, it is the intent of the parties hereto
that Indemnitee shall enjoy by this Agreement the greater benefits so afforded
by such change or prior to such change, as the case may be.
SECTION 4 MANDATORY ADVANCEMENT OF EXPENSES. Notwithstanding anything in
this Agreement expressed or implied to the contrary, the Company shall advance
all reasonable Expenses incurred by or on behalf of Indemnitee in connection
with any Proceeding within thirty (30) days after the receipt by the Company of
a statement or statements from time to time submitted by Indemnitee requesting
such advance or advances, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the Expenses
incurred by Indemnitee and shall include or be preceded or accompanied by an
undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it
shall ultimately be determined by a final order of a court of competent
jurisdiction that Indemnitee is not entitled to be indemnified against such
Expenses under this Agreement in which event the amounts so advanced shall be
repaid to the Company.
SECTION 5 PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION FOR
RESOLUTION COSTS.
(a) To obtain indemnification under this Agreement for Resolution
Costs, Indemnitee shall submit to the Company a written request, including such
documentation and information as is reasonably available to Indemnitee and is
reasonably necessary to determine pursuant to subsection (b) below whether and
to what extent Indemnitee is entitled to indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to
subsection (a) above, a determination, if required by applicable law, with
respect to Indemnitee's entitlement thereto, shall be made in each specific case
as follows:
(i) if a Change in Control shall have occurred, the determination
shall be made by Independent Counsel who shall be selected in the manner
provided in Section 5(c)(ii) below. In the alternative and at Indemnitee's sole
option, Indemnitee shall have the right to direct that such
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determination be made in the manner provided in the following subparagraph (ii)
of this subsection (b); and
(ii) if a Change in Control shall not have occurred or if
otherwise directed by Indemnitee pursuant to subsection (b)(i) above, the
determination shall be made by the Board by a majority vote of a quorum of the
Board consisting of Disinterested Directors, provided, however, that if a quorum
of the Board consisting solely of Disinterested Directors is not obtainable
then, at the option of the Board, by a majority vote of a quorum of all of the
directors (whether or not disinterested), such determination shall be made by
(A) majority vote of a committee of two or more Disinterested Directors
appointed by the Board, or (B) all Independent Directors, or (C) Independent
Counsel, or (D) the stockholders of the Company.
If it is so determined that Indemnitee is entitled to indemnification,
payment to Indemnitee shall be made within thirty (30) days after such
determination. Any costs or expenses (including attorneys' fees and
disbursements) incurred by Indemnitee in connection with the making of such
determination shall be borne by the Company (irrespective of the determination
as to Indemnitee's entitlement to indemnification) and the Company hereby agrees
to indemnify and hold Indemnitee harmless therefrom. A determination by the
Independent Directors or Independent Counsel shall be expressed in a written
opinion to the Board, a copy of which shall be delivered to Indemnitee.
(c) If the determination of entitlement to indemnification is to be
made by Independent Counsel, the Independent Counsel shall be selected as
follows:
(i) if a Change in Control shall not have occurred, the
Independent Counsel shall be selected by the Board, or
(ii) if a Change in Control shall have occurred, the Independent
Counsel shall be selected by Indemnitee.
The party selecting Independent Counsel shall advise the
other party in writing of the identity of the Independent Counsel so selected.
The Company shall pay any and all fees and expenses incurred by such Independent
Counsel and otherwise incident to the procedures of this Section 5, regardless
of the manner in which such Independent Counsel was selected or appointed.
SECTION 6 PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) If a Change in Control shall have occurred, the person or persons
making a determination with respect to entitlement to indemnification shall
presume that Indemnitee is entitled to indemnification under this Agreement, and
the Company shall have the burden of proof to overcome that presumption.
(b) If the person or persons empowered or selected to determine
whether Indemnitee is entitled to indemnification shall not have made a
determination within sixty (60) days after being selected or empowered to do so
(or within ninety (90) days thereafter, if such determination is to be made by
the stockholders), the requisite determination of entitlement to
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indemnification shall be deemed to have been made and Indemnitee shall be
entitled to such indemnification, unless such indemnification is specifically
prohibited under applicable law.
(c) The termination of any Proceeding or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or by a plea of nolo
contendere or its equivalent, shall not of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Company or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that his conduct was
unlawful.
SECTION 7 REMEDIES OF INDEMNITEE.
(a) The Indemnitee shall be entitled to an adjudication of his or her
right to indemnification or to the advancement of Expenses, at his or her sole
option, (i) by the Circuit Court for the County of Kent or Allegan, State of
Michigan, or any other court of competent jurisdiction, or (ii) by a single
arbitrator in an arbitration conducted pursuant to the rules of the American
Arbitration Association, if:
(i) a determination has been made pursuant to Section 5 that the
Indemnitee is not entitled to indemnification for Resolution Costs;
(ii) the determination of his or her entitlement to
indemnification is not timely made pursuant to Section 5;
(iii) advancement of Expenses is not timely made pursuant to
Section 4; or
(iv) payment of indemnification to which Indemnitee is entitled
under Section 9 below is not timely made or payment is not timely made after a
determination has been made that Indemnitee is entitled to indemnification.
The Company shall not oppose Indemnitee's right to seek any such
adjudication, whether in a court or in arbitration.
(b) If a determination shall have been made that Indemnitee is not
entitled to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 7 shall be conducted in all respects, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse determination. If a
Change in Control shall have occurred, then, in any judicial proceeding or
arbitration commenced pursuant to this Section 7, the Company shall have the
burden of proving that Indemnitee is not entitled to indemnification.
(c) If a determination shall have been made that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration commenced pursuant to this Section 7,
unless such indemnification is prohibited under applicable law.
(d) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 7 that the
procedures and presumptions of this
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Agreement are not valid, binding and enforceable and shall stipulate in any such
court or before any such arbitrator that the Company is bound by all the
provisions of this Agreement.
(e) If Indemnitee, pursuant to this Section 7, seeks a judicial
adjudication of or an award in arbitration to enforce his or her rights under,
or to recover damages for breach of, this Agreement, Indemnitee shall be
entitled to recover from the Company, and shall be indemnified by the Company
against, any and all expenses (of the types described in the definition of
Expenses) actually and reasonably incurred by him in such judicial adjudication
or arbitration, but only if he prevails therein. If it shall be determined in
the judicial adjudication or arbitration that Indemnitee is entitled to receive
part but not all of the indemnification or advancement of Expenses sought, the
expenses incurred by Indemnitee in connection with such judicial adjudication or
arbitration shall be appropriately prorated between the Company and the
Indemnitee.
SECTION 8 INSURANCE; SUBROGATION.
(a) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers, employees,
agents or fiduciaries of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise which such
person serves in a Corporate Position at the request of the Company (the "D & O
Policy"), Indemnitee shall be covered by the D & O Policy or Policies in
accordance with its or their terms to the maximum extent of the coverage
available for any such director, officer, employee or agent under such policy or
policies.
(b) If the Company makes any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
(c) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
SECTION 9 PARTIAL INDEMNIFICATION; SUCCESSFUL DEFENSE. If Indemnitee is
entitled under any provision of this Agreement to indemnification by the Company
for some or a portion of the Expenses actually and reasonably incurred by
Indemnitee or for Resolution Costs but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion of
such Expenses or Resolution Costs to which Indemnitee is entitled.
Notwithstanding any other provision of this Agreement, expressed or implied to
the contrary, to the extent that Indemnitee has been successful on the merits or
otherwise in defense of any or all claims relating in whole or in part to a
Proceeding or in defense of any issue or matter therein, including dismissal
without prejudice, Indemnitee shall be indemnified against all Expenses incurred
in connection therewith.
SECTION 10 CONSENT. Unless and until a Change in Control has occurred, the
Company shall not be liable to indemnify Indemnitee under this Agreement for any
amounts
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paid in settlement of any Proceeding made without the Company's written consent.
Following a Change in Control, such consent shall not be required. The Company
shall not settle any Proceeding in any manner which would impose any penalty or
limitation on Indemnitee without Indemnitee's written consent. Neither the
Company nor the Indemnitee will unreasonably withhold their consent to any
proposed settlement.
SECTION 11 INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. The indemnification
provided by this Agreement shall be in addition to any other rights to which
Indemnitee may be entitled under the Articles of Incorporation, the Bylaws, any
agreement, any vote of shareholders or disinterested directors, the Act as
amended from time to time, or otherwise, both as to actions in Indemnitee's
official capacity and as to actions in another capacity while holding such
office.
SECTION 12 SEVERABILITY. If this Agreement or any portion hereof (including
any provision within a single section, subsection or sentence) shall be held to
be invalid, void or otherwise unenforceable on any ground by any court of
competent jurisdiction, the Company shall nevertheless indemnify Indemnitee as
to any Expenses or Resolution Costs with respect to any Proceeding to the full
extent permitted by law or any applicable portion of this Agreement that shall
not have been invalidated, declared void or otherwise held to be unenforceable.
SECTION 13 NO PRESUMPTION. For purposes of this Agreement, the termination
of any claim, action, suit or proceeding, by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief or
that a court had determined that indemnification is not permitted by applicable
law.
SECTION 14 NOTICE. Indemnitee shall, as a condition precedent to
Indemnitee's right to be indemnified under this Agreement, give to the Company
notice in writing as soon as practicable of any claim for which indemnity will
or could be sought under this Agreement. Notice to the Company shall be directed
to the Company's corporate offices at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Secretary (or to such other individual or address as the
Company shall designate in writing to Indemnitee). Notice shall be deemed
received three (3) days after the date postmarked if sent by prepaid mail
properly addressed. In addition, Indemnitee shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Indemnitee's power to give.
SECTION 15 CONTINUATION OF INDEMNIFICATION. The indemnification rights
provided to Indemnitee under this Agreement, including the right provided under
Sections 3, 4 and 5 above, shall continue after Indemnitee has ceased to hold a
Corporate Position.
SECTION 16 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Company, and its successors and assigns, including
any direct or indirect successor by purchase, merger, consolidation or otherwise
to all or substantially all of the business or assets of the Company, and of
Indemnitee and the spouse, heirs, assigns and personal and legal representatives
of Indemnitee.
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SECTION 17 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the state of Michigan applicable to
contracts made and to be performed in such state without giving effects to the
principles of conflicts of laws.
SECTION 18 LIABILITY INSURANCE. To the extent the Company maintains an
insurance policy or policies providing directors and officers' liability
insurance, Indemnitee shall be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of the coverage available for any
one else who holds a Corporate Position.
SECTION 19 PERIOD OF LIMITATIONS. No legal action shall be brought and no
cause of action shall be asserted by or on behalf of the Company or any
affiliate of the Company against Indemnitee, Indemnitee's spouse, heirs, assigns
or personal or legal representatives after the expiration of two (2) years from
the date of accrual of such cause of action, and any claim or cause of action of
the Company or its affiliate shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such two (2) year period;
provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action such shorter period shall govern.
SECTION 20 AMENDMENTS; WAIVER. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
SECTION 21 EFFECTIVE PERIOD OF COVERAGE. This Agreement shall cover and
extend to all actions taken by Indemnitee in the course of his or her duties in
a Corporate Position from the inception of those duties on and after [Date,
20__].
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ATTEST: PERRIGO COMPANY
By:
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Its: Secretary Its: Chief Executive Officer
INDEMNITEE
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[ ]
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