Exhibit 10.3
INDEMNIFICATION AGREEMENT, dated as of ______, 1998, between XXXXXXXXX.XXX
INC., a Delaware corporation with executive offices located at 00000 Xxxxx
Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx 00000 (the "Company"), and ___________, an
individual serving as [a director][an officer][a director and officer] of the
Company residing at _________________ (the "Individual").
WITNESSETH:
WHEREAS, the Individual currently serves as [a director][an officer][a
director and officer] of the Company; and
WHEREAS, the Company desires to ensure the continued services of the
Individual in such capacity and, in furtherance thereof, desires to provide to
the Individual additional rights to indemnification pursuant to, and in
accordance with, this Agreement.
NOW THEREFORE, for $10.00 and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Rights to Indemnification; Procedural Matters.
(a) The Company shall indemnify the Individual in the event that
the Individual is made a party or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (other than an action by or in the
right of the Company), by reason of the fact that he is or was a director,
officer, employee, or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses (including counsel fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by the Individual in connection with
such action, suit, or proceeding if the Individual acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit, or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his or her conduct was unlawful.
(b) The Company shall indemnify the Individual in the event that
the Individual is made a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that the
Individual is or was a director, officer, employee, incorporator, or agent of
the Company or is or was serving at the request of the Company as a director,
officer, employee, incorporator, or agent of another corporation, partnership,
joint venture, trust, or other enterprise against expenses
(including counsel fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Company and except that no
indemnification shall be made in respect of any claim, issue, or matter as to
which such person shall have been adjudged to be liable to the Company unless
and only to the extent that the Court of Chancery of the State of Delaware or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability, but in view of all of
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) Any indemnification under paragraphs (a) or (b) of this Section 1
(unless ordered by a court) shall be made by the Company only as authorized in
the specific case upon a determination that indemnification of such director,
officer, employee, or agent is proper under the circumstances because he has met
the applicable standard of conduct set forth in paragraph (a) or (b) of this
Section 1, as applicable. Such determination shall be made (i) by the Board of
Directors of the Company by a majority vote of a quorum consisting of directors
who are not parties to such action, suit, or proceeding, or (ii) if such quorum
is not obtainable or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the a
majority vote of a quorum of stockholders of the Company.
Section 2. Advancement of Expenses. Expenses (including attorneys' fees)
incurred by any person referred to in Section 1 in defending any civil,
criminal, administrative, or investigative action, suit, or proceeding may be
paid by the Company in advance of the final disposition of such action, suit, or
proceeding upon receipt by the Company of an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Company as authorized in this Agreement.
Section 3. Non-Exclusivity. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Agreement shall not be deemed
exclusive of any other rights to which those entitled to indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders, resolution of disinterested directors, by provision of law, or
otherwise, in each case whether currently in effect or hereafter adopted.
Section 4. Insurance. The Company shall have the power to purchase and
maintain insurance on behalf of the Individual against any liability asserted
against him and incurred by him in his or her capacity as an officer, director,
employee, incorporator, or agent of the Company, or as a director, officer,
employee, incorporator, or agent of another corporation, partnership, joint
venture, trust, or other enterprise at the request of the Company, or arising
out of his or her status as such, whether or not the Company would have the
power to indemnify him against such liability under this Agreement.
Section 5. Matters Covered. The indemnification and advancement of
expenses provided for by this Agreement shall inure whether or not the claim
asserted is based on matters which antedate the adoption of this Agreement. Such
indemnification and advancement of expenses shall continue as to the Individual
even in the event that the Individual has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators thereof.
Section 6. Miscellaneous.
(a) For purposes of this Agreement, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "at the request of the Company" shall include
any service as a director, officer, employee, or agent of the Company which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the best interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Company" as referred to in this
Agreement.
(b) This Agreement may be modified only by a written
instrument duly executed by each party hereto.
(c) The headings in this Agreement are solely for convenience
of reference and shall be given no effect in the construction or interpretation
of this Agreement.
(d) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXXXXXXX.XXX INC.
By:
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Name:
Title:
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Name:
