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EXHIBIT (c)(4)
FORM OF INDEMNIFICATION AGREEMENT
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AGREEMENT dated as of the ____ day of __________, 199_ between
ISOMEDIX INC., a Delaware corporation (the "Indemnitor"), and the individual
whose name appears on the signature page hereof as Indemnitee (the
"Indemnitee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, in recognition of the Indemnitee's need for
substantial protection against personal liability arising out of his service to
the Indemnitor and/or its subsidiaries and affiliates, and to induce the
Indemnitee to continue to serve as a director, officer, employee, agent or
fiduciary of the Indemnitor and/or various of its subsidiaries and affiliates,
the Indemnitor wishes to provide in this Agreement for the indemnification of
and the advancing of expenses to the Indemnitee as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual benefits to be derived from this Agreement, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. INDEMNIFICATION.
(a) The Indemnitor hereby agrees to indemnify the
Indemnitee in the event the Indemnitee is or becomes a party to or witness or
other participant in, or is threatened to be made a party to or witness or other
participant in, any action, suit or proceeding (including any appeal), whether
civil, criminal, administrative, investigative or other, relating to any
occurrence or event before or after the date hereof, by reason of the fact that
the Indemnitee is or was a director, officer, employee, fiduciary or agent of
the Indemnitor or any of its subsidiaries or affiliates, or is or was serving at
the request of the Indemnitor or any of its subsidiaries or affiliates as a
director, officer, employee, fiduciary or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
including but not limited to any such action, suit or proceeding (including any
appeal), whether civil, criminal, administrative, investigative or other by any
third party or by or in the right of the Indemnitor or any of its subsidiaries
or affiliates or any such other corporation, partnership, joint venture, trust,
employee benefit plan or enterprise (hereinafter called a "Claim"), for and
against
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expenses, including attorneys' fees, and all other costs, charges and expenses
paid, incurred by or assessable against the Indemnitee in connection with
investigating, defending, being a witness in or participating in, or preparing
to defend, be a witness in or participate in, any Claim (collectively,
"Expenses") and judgments, fines, penalties, taxes (including excise taxes), and
amounts paid or to be paid in settlement (including all interest, assessments
and other charges paid or payable in respect of the foregoing) incurred by the
Indemnitee in connection with any Claim (collectively, "Damages").
(b) If requested by the Indemnitee, the Indemnitor
shall, upon presentation of bills, statements of account or invoices for
Expenses relating to a Claim, advance to or pay on behalf of the Indemnitee,
within 30 days of such request, any and all Expenses shown on such bills,
statements or invoices relating to such Claim (an "Expense Advance"), upon
receipt of a written undertaking by or on behalf of the Indemnitee to repay such
Expense Advance in the event of a final determination, adjudication or judgment
(as to which all rights of appeal have been exhausted or have lapsed) that the
Indemnitee is not entitled to indemnification pursuant to this Agreement.
(c) In the event that the Indemnitee demands
indemnification hereunder as a result of any Claim, the Indemnitee shall, in a
timely manner, provide the Indemnitor with notice of such Claim and shall make
available to the Indemnitor all information in the Indemnitee's possession that
relates to such Claim. The Indemnitor shall have the right, but not the
obligation, to control the defense of the Indemnitee from such Claim at the
Indemnitor's sole cost and expense and by counsel mutually acceptable to the
Indemnitor and the Indemnitee. In the event that the Indemnitor shall elect to
exercise such right to control such defense, the Indemnitee shall have the right
to participate in such defense at its sole expense and through counsel of its
choice. No Claim shall be settled or compromised without the consent of the
Indemnitor, which shall not be unreasonably withheld, unless the Indemnitor
shall have failed, after the lapse of a reasonable time, but in no event more
than 30 days after notice to the Indemnitor of such proposed settlement or
compromise, to notify the Indemnitee of the Indemnitor's reasonable objection
thereto. The Indemnitee's failure to give timely notice or to provide copies of
documents or to furnish information in connection with any Claim shall not
constitute a defense to any claim for indemnification by the Indemnitee
hereunder except, and only to the extent, that the Indemnitor is materially
prejudiced thereby.
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2. INTERPRETATION OF INDEMNITY. It is agreed between the
parties that, although the indemnities and other protections given by the
Indemnitor to the Indemnitee are considered necessary, fair and reasonable, if
it should be found that any of the provisions are void as going beyond that
which is permitted by law and if by deleting part of the wording or by
substituting a more restricted indemnity or protection than that set out in
Section 1 such provision would be valid and enforceable, there shall be
substituted such more restricted indemnity or other provision or such deletions
shall be made as shall render Section 1 or such part thereof valid and
enforceable; provided, however, that the terms of such substituted indemnity or
other provision or such deletions shall be consistent with the provisions of
Section 14.
3. PARTIAL INDEMNITY; SUCCESSFUL DEFENSE; BURDEN OF PROOF. If
the Indemnitee is entitled under any provisions of this Agreement to
indemnification by the Indemnitor for some or a portion of the Expenses and
Damages but not, however, for all of the total amount thereof, the Indemnitor
shall nevertheless indemnify the Indemnitee for the portion thereof to which the
Indemnitee is entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee has been successful on the merits
or otherwise in defense of any or all Claims or in defense of any issue or
matter therein, the Indemnitee shall be indemnified against any and all Expenses
and Damages. In connection with any determination by action of the Board of
Directors of Indemnitor, arbitration agency or court of competent jurisdiction
regarding whether the Indemnitee is or is not entitled to be indemnified
hereunder, the burden of proof shall be on the Indemnitor to establish that the
Indemnitee is not so entitled.
4. NO PRESUMPTION. For purposes of this Agreement, the
termination of any Claim by judgment, order or settlement (whether with or
without court approval), conviction or upon a plea of nolo contendere or its
equivalent, shall not create a presumption that the Indemnitee did not meet any
particular standard of conduct or had any particular belief or that a court has
determined that indemnification is not permitted by this Agreement or applicable
law.
5. CONTRIBUTION. In the event that the indemnification
provided for in this Agreement is unavailable to the Indemnitee for any reason
whatsoever, the Indemnitor, in lieu of indemnifying the Indemnitee, shall
contribute to the Expenses and Damages, in such proportion as is deemed fair and
reasonable in light of all
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of the circumstances of the related Claim by the Board of Directors of the
Indemnitor or by the arbitrator, agency or court before which such Claim was
brought in order to reflect (i) the relative benefits received by the
Indemnitor, or any subsidiary or affiliate of the Indemnitor, and the Indemnitee
as a result of the events and/or transactions giving rise to such Claim; and/or
(ii) the relative fault of the Indemnitor or any subsidiary or affiliate of the
Indemnitor (and its directors, officers, employees and agents) and the
Indemnitee in connection with such events and/or transactions.
6. NOTICE TO THE INDEMNITOR BY THE INDEMNITEE. The Indemnitee
agrees to notify the Indemnitor promptly in writing upon being served with or
having actual knowledge of any citation, summons, complaint, indictment or any
other similar document relating to any action which may result in a claim for
indemnification or contribution hereunder.
7. ARBITRATION. Any controversy or claim arising out of a
denial or threatened denial of indemnification to the Indemnitee under this
Agreement shall be settled by arbitration in accordance with the rules of the
American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in New York, New York or in such other
location mutually agreed to by the parties hereto. The arbitration award shall
include attorneys' fees and costs to the prevailing party.
8. SEGREGATION OF FUNDS. In the event of any Claim, the
Indemnitor shall, promptly upon written request by the Indemnitee from time to
time following a Change in Control (as defined in Section 9), set aside in a
separate fund an amount, as set forth in such request, sufficient to satisfy any
and all Expenses reasonably anticipated at the time of each such request to be
incurred in connection with investigating, preparing for and defending any
Claim, and any and all Damages from time to time actually paid or claimed,
reasonably anticipated or proposed to be paid.
9. ESTABLISHMENT OF TRUST. Immediately prior to or upon a
Change in Control (as defined below), the Indemnitor shall, upon written request
by the Indemnitee, promptly create a trust (the "Trust") for the benefit of the
Indemnitee and from time to time, upon written request of the Indemnitee to the
Indemnitor, shall fund the Trust in an amount, as set forth in such request,
sufficient to satisfy any and all Expenses reasonably anticipated at the time of
each such request to be incurred in connection with
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investigating, preparing for and defending any Claim, and any and all judgments,
fines, penalties and settlement amounts of any and all Claims from time to time
actually paid or claimed, reasonably anticipated or proposed to be paid. The
terms of the Trust shall provide that (i) the Trust shall not be revoked or the
principal thereof invaded, without the written consent of the Indemnitee; (ii)
the trustee of the Trust (the "Trustee") shall advance, within 30 business days
of a request by the Indemnitee, any and all Expenses to the Indemnitee, not
advanced directly by the Indemnitor to the Indemnitee (and the Indemnitee hereby
agrees to reimburse the Trust under the circumstances under which the Indemnitee
would be required to reimburse the Indemnitor under Section 1(b)); (iii) the
Trust shall continue to be funded by the Indemnitor in accordance with the
funding obligation set forth above; (iv) the Trustee shall promptly pay to the
Indemnitee all amounts for which the Indemnitee shall be entitled to
indemnification pursuant to this Agreement or otherwise; and (v) all unexpended
funds in the Trust shall revert to the Indemnitor upon a final determination by
arbitration or court of competent jurisdiction, as the case may be, that the
Indemnitee has been fully indemnified under the terms of this Agreement. The
Trustee shall be chosen by the Indemnitee. For purposes of this Agreement, a
Change in Control of the Indemnitor shall be deemed to have occurred if:
(A) a "person" (meaning an individual, a
partnership, or other group or association as defined in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, other than the Indemnitee or a
group including the Indemnitee), acquires fifty percent (50%) or more of the
combined voting power of the outstanding securities of the Indemnitor having a
right to vote in elections of directors and such acquisition shall not have been
approved in advance of such acquisition by a majority of the Continuing
Directors (as hereinafter defined) then in office; or
(B) the Indemnitor is a party to a merger or
consolidation in which the Indemnitor is not the surviving corporation and such
merger or consolidation shall not have been approved in advance by a majority of
the Continuing Directors then in office; or
(C) all or substantially all of the assets
of the Indemnitor are sold or otherwise disposed of and such sale or disposition
shall not have been approved in advance by a majority of the Continuing
Directors then in office.
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For purposes of this Agreement, the term "Continuing Director"
shall mean a member of the Board of Directors of the Indemnitor who either was a
member of the Board of Directors on the date hereof or who subsequently became a
Director and whose election, or nomination for election, was approved by a vote
of at least two-thirds of the Continuing Directors then in office.
10. INDEMNIFICATION FOR ADDITIONAL EXPENSES. The Indemnitor
shall indemnify the Indemnitee against any and all Expenses and, if requested by
the Indemnitee, shall, upon presentation of bills, statements of account or
invoices for Expenses, within 30 business days of such request advance such
Expenses shown on such bills, statements or invoices to the Indemnitee, which
are incurred by the Indemnitee in connection with any claim asserted by or
action brought by the Indemnitee for (i) indemnification or advance payment of
Expenses by the Indemnitor under this Agreement, any other agreement to which
the Indemnitor and Indemnitee are parties, or any provision of the Indemnitor's
certificate of incorporation or by-laws now or hereafter in effect relating to
Claims and/or (ii) recovery under any directors' and officers' liability
insurance policies maintained by the Indemnitor relating to Claims, upon receipt
of a written undertaking by or on behalf of the Indemnitee to repay such
Expenses in the event of a final determination, adjudication or judgment (as to
which all rights of appeal have been exhausted or have lapsed) that the
Indemnitee is not entitled to indemnification.
11. NON-EXCLUSIVITY. The rights of the Indemnitee hereunder
shall be in addition to any other rights the Indemnitee may have under the
certificate of incorporation or by-laws of the Indemnitor or of any subsidiary
or affiliate of the Indemnitor, or under applicable law, including without
limitation the General Corporation Law of the State of Delaware, or otherwise,
and nothing herein shall be deemed to diminish or otherwise restrict the
Indemnitee's other such rights to indemnification. The Indemnitor may satisfy
any of its obligations to the Indemnitee hereunder by causing any subsidiary or
affiliate of the Indemnitor to satisfy such obligation on behalf of the
Indemnitor.
12. AMENDMENTS, ETC. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by all 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.
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13. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of and be enforceable against the parties hereto and, in
the case of the Indemnitor, its successors and assigns (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Indemnitor) or, in the
case of the Indemnitee, his or her heirs and legal representative. This
Agreement shall continue in effect regardless of whether the Indemnitee
continues to serve as a director, officer, employee, agent or fiduciary of the
Indemnitor, or any subsidiary or affiliate of the Indemnitor, or any other
enterprise at the Indemnitor's request.
14. SEVERABILITY. Subject to Section 2, if a court of
competent jurisdiction shall determine that any provision of this Agreement is
void and of no effect, the provisions of this Agreement shall be deemed amended
to delete or modify, as necessary, the offending provision, and this Agreement
as so amended or modified shall not be rendered unenforceable or impaired but
shall remain in force to the fullest extent possible in keeping with the
intention of the parties hereto.
15. GOVERNING LAW. The validity, interpretation and
performance of this Agreement shall be governed by the laws of the State of
Delaware applicable to agreements made and to be performed entirely within such
State.
16. LIABILITY INSURANCE. To the extent the Indemnitor
maintains at any time an insurance policy or policies providing directors' and
officers' liability insurance, the Indemnitee shall be covered by such policy or
policies, in accordance with the terms of such policy or policies, to the
maximum extent of the coverage available for any other director or officer of
the Indemnitor under such insurance policy. The purchase and maintenance of such
insurance shall not in any way limit or affect the rights and obligations of the
parties hereto, and the execution and delivery of this Agreement shall not in
any way be construed to limit or affect the rights and obligations of the
Indemnitor and/or of the other parties under any such insurance policy.
17. NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand or seven business days
after mailing by certified or registered mail, return receipt requested, with
postage prepaid:
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(a) If to the Indemnitee:
at the address of the Indemnitee shown
on the records of the Indemnitor
(b) If to the Indemnitor:
00 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxxxxx, President
or to such other address as the Indemnitee or Indemnitor shall designate in
writing pursuant to the above.
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first written above.
Indemnitor:
ISOMEDIX INC.
By
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Indemnitee:
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