INDEMNIFICATION AGREEMENT
Exhibit
10.36
This
Indemnification Agreement ("Agreement") is made as of ____, 2008 by and between
Stamford Industrial Group, Inc., a Delaware corporation (the "Company"), and
________________________ ("Indemnitee").
RECITALS
WHEREAS,
it is essential to the Company and its stockholders to attract and retain highly
qualified and capable directors;
WHEREAS,
the Certificate of Incorporation of the Company, as amended to date (the
"Certificate of Incorporation"), and the By-laws of the Company, as amended
to
date (the “By-laws”), allow the Company to indemnify and advance expenses to its
directors;
WHEREAS,
this Agreement is a supplement to and in furtherance of the Certificate of
Incorporation and By-laws of the Company and any resolutions adopted pursuant
thereto and shall not be deemed a substitute therefor, nor to diminish or
abrogate any rights of Indemnitee thereunder;
WHEREAS,
in recognition of Indemnitee's need for protection against personal liability
and in order to induce Indemnitee to serve the Company in an effective manner,
and to supplement the Company's directors' liability insurance coverage, and,
in
part, to provide Indemnitee with specific contractual assurance that the
protection provided by the Certificate of Incorporation and By-laws will be
available to Indemnitee (regardless of, among other things, any amendment to
or
revocation of the Certificate of Incorporation or By-laws), the Company wishes
to provide the Indemnitee with the benefits contemplated by this Agreement;
and
WHEREAS,
as a result of the provision of such benefits Indemnitee has agreed to serve
or
continue to serve the Company as a director;
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:
1. Definitions.
As used
in this Agreement:
(a) "Beneficial
Owner"
shall
have the meaning given to such term in Rule l3d-3 under the Exchange Act;
provided, however, that Beneficial Owner shall exclude any Person otherwise
becoming a Beneficial Owner by reason of the stockholders of the Company
approving a merger of the Company with another entity.
(b) “Board”
or
“Board
of Directors”
shall
mean the board of directors of the Company from time to time.
(b) A
"Change
in Control"
shall
be deemed to occur upon the earliest to occur after the date of this Agreement
of any of the following events:
(i) Acquisition
of Stock by Third Party.
Any
Person (as defined below) is or becomes the Beneficial Owner (as defined below),
directly or indirectly, of securities of the Company representing thirty percent
(30%) or more of the combined voting power of the Company's then outstanding
securities;
(ii) Change
in Board of Directors.
During
any period of two (2) consecutive years (not including any period prior to
the
execution of this Agreement), individuals who at the beginning of such period
constitute the Board, and any new director (other than a director designated
by
a person who has entered into an agreement with the Company to effect a
transaction described in Sections 1(b)(i), 1(b)(iii) or 1(b)(iv)) whose election
by the Board or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of the period or whose election
or
nomination for election was previously so approved, cease for any reason to
constitute a least a majority of the members of the Board;
(iii) Corporate
Transactions.
The
effective date of a merger or consolidation of the Company with any other
entity, other than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than 66.67%
of the combined voting power of the voting securities of the surviving entity
outstanding immediately after such merger or consolidation and with the power
to
elect at least a majority of the board of directors or other governing body
of
such surviving entity;
(iv) Liquidation.
The
approval by the stockholders of the Company of a complete liquidation of the
Company or an agreement or series of agreements for the sale or disposition
by
the Company of all or substantially all of the Company's assets;
and
(v) Other
Events.
There
occurs any other event of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any
similar item on any similar schedule or form) promulgated under the Exchange
Act
(as defined below), whether or not the Company is then subject to such reporting
requirement.
(c) "Corporate
Status"
describes the status of a person who is or was a director of the Company or
who
was or is a director, officer, trustee, general partner, managing member,
fiduciary, employee or agent of any other Enterprise (as defined below) which
such person is or was serving at the request of the Company.
(d) “DGCL”
means
the General Corporation Law of the State of Delaware, as in effect from time
to
time.
(e) "Disinterested
Director"
means a
director of the Company who is not and was not a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.
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(f) "Enterprise"
shall
mean the Company and any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise
or
entity of which Indemnitee is or was serving at the request of the Company
as a
director, officer, trustee, general partner, managing member, fiduciary,
employee or agent.
(g) "Exchange
Act"
shall
mean the Securities Exchange Act of 1934, as amended.
(h) "Expenses"
shall
include all reasonable attorneys' fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements, costs, or expenses of the types customarily
incurred in connection with prosecuting, defending, preparing to prosecute
or
defend, investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding. Expenses also shall include Expenses incurred
in
connection with any appeal resulting from any Proceeding, including without
limitation the premium, security for, and other costs relating to any cost
bond,
supersedes bond, or other appeal bond or its equivalent. Expenses, however,
shall not include amounts paid in settlement by Indemnitee or the amount of
judgments or fines against Indemnitee.
(i) "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 (other than with respect to matters concerning the Indemnitee
under this Agreement, or of other indemnitees under similar indemnification
agreements), 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. The Company agrees to pay
the reasonable fees and expenses of the Independent Counsel referred to above
and to fully indemnify such counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(j) “Loss”
means
all judgments, fines, penalties, damages, liabilities, claims, and amounts
paid
in settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such judgments, fines, penalties,
damages, liabilities, claims, and amounts paid in settlement).
(k) Reference
to "other
enterprise"
shall
include employee benefit plans; references to "fines"
shall
include any excise tax assessed with respect to any employee benefit plan;
references to "serving
at the request of the Company"
shall
include any service as a director of the Company which imposes duties on, or
involves services by, such director 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 interests 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.
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(k) A
“Potential
Change in Control”
shall
occur if the Company (a) enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control or (b) the Board of
Directors adopts a resolution to the effect that, for purposes of this
Agreement, a potential Change in Control has occurred.
(l) "Person"
shall
have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act;
provided, however, that Person shall exclude (i) the Company and any of its
direct and indirect subsidiaries, (ii) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, and (iii) any
corporation owned, directly or indirectly, by the stockholders of the Company
in
substantially the same proportions as their ownership of stock of the
Company.
(m) The
term
"Proceeding"
shall
include any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding, whether brought
in the right of the Company or otherwise and whether of a civil, criminal,
administrative or investigative nature, in which Indemnitee was, is or will
be
involved as a party or otherwise by reason of the fact that Indemnitee is or
was
a director of the Company, by reason of any action taken (or failure to act)
by
him or of any action (or failure to act) on his part while acting as director
of
the Company, or by reason of the fact that he is or was serving at the request
of the Company as a director, officer, trustee, general partner, managing
member, fiduciary, employee or agent of any other Enterprise, in each case
whether or not serving in such capacity at the time any liability or expense
is
incurred for which indemnification, reimbursement, or advancement of expenses
can be provided under this Agreement.
2. Indemnity
In Third-Party Proceedings.
The
Company shall indemnify Indemnitee, his executors and administrators in
accordance with the provisions of this Section 2 if Indemnitee is, or is
threatened to be made, a party to or a participant (as a witness or otherwise)
in any Proceeding, other than a Proceeding by or in the right of the Company
to
procure a judgment in its favor. Pursuant to this Section 2, Indemnitee shall
be
indemnified against all Expenses and Losses incurred by Indemnitee or on his
behalf in connection with such Proceeding or any claim, issue or matter therein,
if Indemnitee 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, in the case of
a
criminal action or proceeding had no reasonable cause to believe that his
conduct was unlawful.
3. Indemnity
In Proceedings By Or In The Right Of The Company.
The
Company shall indemnify Indemnitee, his executors and administrators in
accordance with the provisions of this Section 3 if Indemnitee is, or is
threatened to be made, a party to or a participant (as a witness or otherwise)
in any Proceeding by or in the right of the Company to procure a judgment in
its
favor. Pursuant to this Section 3, Indemnitee shall be indemnified against
all
Expenses incurred by him or on his behalf in connection with such Proceeding
or
any claim, issue or matter therein, if Indemnitee acted in good faith and in
a
manner he reasonably believed to be in or not opposed to the best interests
of
the Company. No indemnification for Expenses shall be made under this Section
3
in respect of any claim, issue or matter as to which Indemnitee shall have
been
finally adjudged by a court to be liable to the Company, unless and only to
the
extent that any court in which the Proceeding was brought or the Delaware Court
of Chancery shall determine upon application that, despite the adjudication
of
liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnification for such Expenses which the Delaware
Court of Chancery or such other court shall deem proper.
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4. Indemnification
For Expenses Of A Witness.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding
to
which Indemnitee is not a party, he shall be indemnified against all Expenses
incurred by him or on his behalf in connection therewith.
5. Additional
Indemnification.
(a) Notwithstanding
any limitation in Sections 2 or 3, the Company shall indemnify Indemnitee to
the
fullest extent permitted by law if Indemnitee is a party to or threatened to
be
made a party to any Proceeding (including a Proceeding by or in the right of
the
Company to procure a judgment in its favor) against all Expenses and Losses
incurred by Indemnitee in connection with the Proceeding. No indemnity shall
be
made under this Section 5(a) on account of Indemnitee's conduct which
constitutes a breach of Indemnitee's duty of loyalty to the Company or its
stockholders or is an act or omission not in good faith or which involves
intentional misconduct or a knowing violation of the law.
(b) For
purposes of Section 5(a), the meaning of the phrase "to the fullest extent
permitted by law" shall include, but not be limited to:
(i) to
the
fullest extent permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding
provision of any amendment to or replacement of the DGCL, and
(ii)
to
the fullest extent authorized or permitted by any amendments to or replacements
of the DGCL adopted after the date of this Agreement that increase the extent
to
which a corporation may indemnify its directors.
6. Exclusions.
Notwithstanding any provision in this Agreement, the Company shall not be
obligated under this Agreement to make any indemnity in connection with any
claim made against Indemnitee:
(a) for
which
payment has actually been received by or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect to any excess
beyond the amount actually received under any insurance policy or other
indemnity provision;
(b) for
an
accounting of profits made from the purchase and sale (or sale and purchase)
by
Indemnitee of securities of the Company within the meaning of Section 16(b)
of
the Exchange Act or similar provisions of state statutory law or common law;
or
(c) for
any
Loss which the Company is prohibited by applicable law from paying as indemnity
or for any other reason.
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7. Advances
Of Expenses; Defense Of Claim;
Settlement
(a) Notwithstanding
any provision of this Agreement to the contrary, the Company shall advance
the
Expenses incurred by Indemnitee in connection with any Proceeding within ten
(10) days after the receipt by the Company of a statement or statements
requesting such advances from time to time, whether prior to or after final
disposition of any Proceeding. Advances shall be unsecured and interest free.
Advances shall be made without regard to Indemnitee's ability to repay the
expenses and without regard to Indemnitee's ultimate entitlement to
indemnification under the other provisions of this Agreement. Advances shall
include any and all Expenses incurred pursuing an action to enforce this right
of advancement, including Expenses incurred preparing and forwarding statements
to the Company to support the advances claimed. The Indemnitee shall qualify
for
advances solely upon the execution and delivery to the Company of an undertaking
providing that the Indemnitee undertakes to repay the advance to the extent
that
it is ultimately determined that Indemnitee is not entitled to be indemnified
by
the Company. This Section 7(a) shall not apply to any claim made by Indemnitee
for which indemnity is excluded pursuant to Section 6.
(b) In
the
event the Company shall be obligated hereunder to provide indemnification for
Expenses or Losses, or shall be required to make an advance in accordance with
Section 7(a) hereof, the Company, if appropriate, shall be entitled to assume
the defense of such Proceeding, with counsel reasonably satisfactory to
Indemnitee, upon the delivery to Indemnitee of reasonable written notice of
its
election to do so. After delivery of such notice, the Company will not be liable
to Indemnitee under this Agreement for any legal or other Expenses subsequently
incurred by Indemnitee in connection with such defense other than reasonable
Expenses of investigation; provided that
Indemnitee shall have the right to employ its counsel in such Proceeding but
the
Expenses of such counsel incurred after delivery of notice from the Company
of
its assumption of such defense shall be at the Indemnitee's expense;
provided further
that if:
(i) the employment of counsel by Indemnitee has been previously authorized
by
the Company, (ii) Indemnitee shall have reasonably concluded that there will
be
a conflict of interest between the Company and Indemnitee in the conduct of
any
such defense, or (iii) the Company shall not, in fact, have employed counsel
to
assume the defense of such action or having employed counsel, such counsel
is
not diligently prosecuting a defense on behalf of the Indemnitee, the Expenses
of counsel employed by the Indeminitee shall be at the expense of the
Company.
(c) The
Company shall not settle any action, claim or Proceeding (in whole or in part)
which would impose any Expense, Loss, or limitation on the Indemnitee without
the Indemnitee’s prior written consent, and no settlement of any Proceeding
shall be entered into unless, if applicable, in the Indemnitee’s discretion,
such settlement includes, as an unconditional term thereof, the delivery by
the
claimant or plaintiff in such Proceeding to Indemnitee of a duly executed
written release of Indemnitee from all liability or obligation in respect of
such Proceeding, which release shall be reasonably satisfactory in form and
substance to Indemnitee and Indemnitee’s counsel. The Company shall have no
obligation to indemnify Indemnitee under this Agreement for any amounts paid
in
settlement of any Proceeding effected without the Company’s prior written
consent, which consent shall not be unreasonably withheld, conditioned, or
delayed.
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8. Procedure
For Notification And Application For Indemnification.
(a) Within
forty-five (45) days after the actual receipt by Indemnitee of notice that
he or
she is a party to or a participant (as a witness or otherwise) in any
Proceeding, Indemnitee shall submit to the Company a written notice identifying
the Proceeding. The omission by the Indemnitee to notify the Company will not
relieve the Company from any liability which it may have to Indemnitee (i)
otherwise than under this Agreement, and (ii) under this Agreement only to
the
extent the Company can establish that such omission to notify resulted in actual
prejudice to the Company.
(b) Indemnitee
shall thereafter deliver to the Company a written application to indemnify
Indemnitee in accordance with this Agreement. Such application(s) may be
delivered from time to time and at such time(s) as Indemnitee deems appropriate
in his or her sole discretion. Following such a written application for
indemnification by Indemnitee, the Indemnitee's entitlement to indemnification
shall be determined according to Section 9(a) of this Agreement.
9. Procedure
Upon Application For Indemnification.
(a) Upon
written request by Indemnitee for indemnification pursuant to Section 8(b),
a
determination, if required by law, with respect to Indemnitee’s entitlement to
indemnification hereunder shall be made (i) by a majority vote of the
Disinterested Directors, even though less than a quorum of the Board, or if
there are no Disinterested Directors by a majority vote of the Board or (ii)
if
so requested by the Indemnitee in his or her sole discretion, by Independent
Counsel in a written opinion to the Board and the Indemnitee, which shall
supersede any determination made by the Board. If (i) it is so determined that
Indemnitee is entitled to indemnification or (ii) a determination is not
required by applicable law, payment to Indemnitee shall be made within ten
(10)
days after such determination. Indemnitee shall reasonably cooperate with the
person, persons or entity making such determination with respect to Indemnitee's
entitlement to indemnification, including providing to such person, persons
or
entity upon reasonable advance request any documentation or information which
is
not privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
Expenses incurred by Indemnitee in so cooperating with the person, persons
or
entity making such determination shall be borne by the Company (irrespective
of
the determination as to Indemnitee's entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
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(b) In
the
event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 9(a) hereof, the Independent Counsel
shall be selected as provided in this Section 9(b). If a Change in Control
shall
not have occurred, the Independent Counsel shall be selected by the Board of
Directors, and the Company shall give written notice to Indemnitee advising
him
of the identity of the Independent Counsel so selected. If a Change in Control
shall have occurred, the Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the Board of
Directors, in which event the preceding sentence shall apply), and Indemnitee
shall give written notice to the Company advising it of the identity of the
Independent Counsel so selected. In either event, Indemnitee or the Company,
as
the case may be, may, within 10 days after such written notice of selection
shall have been received, deliver to the Company or to Indemnitee, as the case
may be, a written objection to such selection; provided,
however,
that
such objection may be asserted only on the ground that the Independent Counsel
so selected does not meet the requirements of "Independent Counsel" as defined
in Section 1 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and timely
objection, the person so selected shall act as Independent Counsel. If such
written objection is so made and substantiated, the Independent Counsel so
selected may not serve as Independent Counsel unless and until such objection
is
withdrawn or a court of competent jurisdiction has determined that such
objection is without merit. If, within 20 days after submission by Indemnitee
of
a written request for indemnification pursuant to Section 8(b) hereof, no
Independent Counsel shall have been selected and not objected to, either the
Company or Indemnitee may petition a court of competent jurisdiction for
resolution of any objection which shall have been made by the Company or
Indemnitee to the other's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the Court or by
such
other person as the Court shall designate, and the person with respect to whom
all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 9(a) hereof. Upon the due commencement of
any
judicial proceeding or arbitration pursuant to Section 12(a) of this Agreement,
Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
(c) The
Company agrees to pay the reasonable fees of Independent Counsel and to fully
indemnify such Independent Counsel against any and all Expenses and Losses
arising out of or relating to this Agreement or its engagement pursuant
hereto.
10. Establishment
Of Trust.
In the
event of a Potential Change in Control or Change of Control, the Company shall,
upon written request by Indemnitee, create a trust (the "Trust") for the benefit
of Indemnitee and from time to time upon written request of Indemnitee shall
fund the Trust in an amount sufficient, in the reasonable opinion of the Board
or the Independent Counsel, as the case may be, to satisfy any and all Losses
and Expenses which are actually paid or which Indemnitee reasonably determines
from time to time may be payable by the Company under this Agreement. The terms
of the Trust shall provide that upon a Change in Control: (i) the Trust shall
not be revoked or the principal thereof invaded without the written consent
of
Indemnitee; (ii) the trustee of the Trust shall advance, within 20 days of
a
request by Indemnitee, any and all Expenses to Indemnitee (and Indemnitee hereby
agrees to reimburse the Trust under the circumstances under which Indemnitee
would be required to reimburse the Company under Section 7(a) of this
Agreement); (iii) the Company shall continue to fund the Trust from time to
time
in accordance with the funding obligations set forth above; (iv) the trustee
of
the Trust shall promptly pay to Indemnitee all Expenses and Losses for which
Indemnitee shall be entitled to indemnification pursuant to this Agreement;
and
(v) all unexpended funds in the Trust shall revert to the Company upon a final
determination by a court of competent jurisdiction in a final decision from
which there is no further right of appeal that Indemnitee has been fully
indemnified under the terms of this Agreement. The trustee of the Trust shall
be
chosen by Indemnitee and shall be approved by the Company, which approval shall
not be unreasonably withheld, conditioned, or delayed.
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11. Presumptions
And Effect Of Certain Proceedings.
(a) In
making
a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement if Indemnitee
has
submitted a request for indemnification in accordance with Section 8(b) of
this
Agreement, and the Company shall have the burden of proof to overcome that
presumption in connection with the making by any person, persons or entity
of
any determination contrary to that presumption. Neither the failure of the
Company (including by its directors or Independent Counsel) to have made a
determination prior to the commencement of any action pursuant to this Agreement
that indemnification is proper in the circumstances because Indemnitee has
met
the applicable standard of conduct, nor an actual determination by the Company
(including by its directors or Independent Counsel) that Indemnitee has not
met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that Indemnitee has not met the applicable standard of
conduct.
(b) If
the
person, persons or entity empowered or selected under Section 9 of this
Agreement to determine whether Indemnitee is entitled to indemnification shall
not have made a determination within thirty (30) days after receipt by the
Company of the request therefor, the requisite determination of entitlement
to
indemnification shall be deemed to have been made and Indemnitee shall be
entitled to such indemnification, absent a prohibition of such indemnification
under applicable law; provided, however, that such 30-day period may be extended
for a reasonable time, not to exceed an additional fifteen (15) days, if the
person, persons or entity making the determination with respect to entitlement
to indemnification in good faith requires such additional time for the obtaining
or evaluating of documentation and/or information relating thereto.
(c) The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon 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 the Indemnitee 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 the
Indemnitee’s conduct was unlawful.
(d) For
purposes of any determination of good faith, Indemnitee shall be deemed to
have
acted in good faith if Indemnitee's action is based on the records or books
of
account of the Enterprise, including financial statements, or on information
supplied to Indemnitee by the officers of the Enterprise in the course of their
duties, or on the advice of legal counsel for the Enterprise or on information
or records given or reports made to the Enterprise by an independent certified
public accountant or by an appraiser or other expert selected by the Enterprise.
The provisions of this Section 11(d) shall not be deemed to be exclusive or
to
limit in any way the other circumstances in which the Indemnitee may be deemed
or found to have met the applicable standard of conduct set forth in this
Agreement.
(e) The
knowledge and/or actions, or failure to act, of any other director, trustee,
partner, managing member, fiduciary, officer, agent or employee of the
Enterprise shall not be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement.
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12. Remedies
Of Indemnitee.
(a) In
the
event that (i) a determination is made pursuant to Section 9 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 7 of this
Agreement, (iii) no determination of entitlement to indemnification shall have
been made pursuant to Section 9(a) of this Agreement within forty-five (45)
days
after receipt by the Company of the request for indemnification, (iv) payment
of
indemnification is not made pursuant to Section 4 or 5 or the last sentence
of
Section 9(a) of this Agreement within ten (10) days after receipt by the Company
of a written request therefor, or (v) payment of indemnification pursuant to
Section 2 or 3 of this Agreement is not made within ten (10) days after a
determination has been made that Indemnitee is entitled to indemnification,
Indemnitee shall be entitled to an adjudication by a court of his entitlement
to
such indemnification or advancement of Expenses. Alternatively, Indemnitee,
at
his option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. The Company shall not oppose Indemnitee's right to
seek
any such adjudication or award in arbitration.
(b) In
the
event that a determination shall have been made pursuant to Section 9(a) of
this
Agreement that Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this Section 12 shall be
conducted in all respects as a de novo trial, or arbitration, on the merits
and
Indemnitee shall not be prejudiced by reason of that adverse determination.
In
any judicial proceeding or arbitration commenced pursuant to this Section 12
the
Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be, and the Company
may not refer to or introduce into evidence any determination pursuant to
Section 9(a) of this Agreement adverse to Indemnitee for any purpose. If
Indemnitee commences a judicial proceeding or arbitration pursuant to this
Section 12, Indemnitee shall not be required to reimburse the Company for any
advances pursuant to Section 7 until a final determination is made with respect
to Indemnitee's entitlement to indemnification (as to which all rights of appeal
have been exhausted or lapsed).
(c) If
a
determination shall have been made pursuant to Section 9(a) of this Agreement
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 12, absent a prohibition of such indemnification under
applicable law.
(d) In
the
event that Indemnitee, pursuant to this Section 12, seeks a judicial
adjudication of or an award in arbitration to enforce his 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 incurred by him in such judicial adjudication or arbitration.
If it shall be determined in said judicial adjudication or arbitration that
Indemnitee is entitled to receive part but not all of the indemnification or
advancement of Expenses sought, the Indemnitee shall be entitled to recover
from
the Company, and shall be indemnified by the Company against, any and all
Expenses incurred by Indemnitee in connection with such judicial adjudication
or
arbitration.
10
(e) The
Company shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 12 that the procedures and
presumptions of this 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.
(f) The
Company shall indemnify Indemnitee to the fullest extent permitted by law
against all Expenses and, if requested by Indemnitee, shall (within ten (10)
days after the Company's receipt of such written request) advance such Expenses
to Indemnitee, which are incurred by Indemnitee in connection with any judicial
proceeding or arbitration brought by Indemnitee for (i) indemnification or
advances of Expenses by the Company under this Agreement or any other agreement
or provision of the Company's Certificate of Incorporation or By-laws now or
hereafter in effect or (ii) recovery or advances under any insurance policy
maintained by any person for the benefit of Indemnitee, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification,
advance or insurance recovery, as the case maybe.
13. Non-Exclusivity;
Survival of Rights; Insurance; Subrogation.
(a) The
rights of indemnification and to receive advancement of Expenses as provided
by
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the Company's
Certificate of Incorporation, the Company's By-laws, any agreement, a vote
of
stockholders or a resolution of directors, or otherwise. No amendment,
alteration or repeal of this Agreement or of any provision hereof shall limit
or
restrict any right of Indemnitee under this Agreement in respect of any action
taken or omitted by such Indemnitee in his Corporate Status prior to such
amendment, alteration or repeal. To the extent that a change in Delaware law,
whether by statute or judicial decision, permits greater indemnification or
advancement of Expenses than would be afforded currently under the Company's
By-laws and 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. No right or remedy herein conferred is intended to be exclusive
of
any other right or remedy, and every other right and remedy shall be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy.
(b) To
the
extent that the Company maintains an insurance policy or policies providing
liability insurance for directors of the Company or of any other Enterprise
which such person serves at the request of the Company, 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 such director under such policy
or policies. If, at the time the Company receives notice from any source of
a
Proceeding as to which Indemnitee is a party or a participant (as a witness
or
otherwise), the Company has director liability insurance in effect, the Company
shall give prompt notice 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.
11
(c) In
the
event of 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.
(d) The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable (or for which advancement is provided hereunder)
hereunder if and to the extent that Indemnitee has otherwise actually received
such payment under any insurance policy, contract, agreement or
otherwise.
(e) The
Company's obligation to indemnify or advance Expenses hereunder to Indemnitee
who is or was serving at the request of the Company as a director, officer,
trustee, partner, managing member, fiduciary, employee or agent of any other
Enterprise, shall be reduced by any amount Indemnitee has actually received
as
indemnification or advancement of expenses from such Enterprise.
14. Duration
Of Agreement.
This
Agreement shall continue until and terminate upon the later of: (a) ten (10)
years after the date that Indemnitee shall have ceased to serve as a director
of
the Company or as a director, officer, trustee, partner, managing member,
fiduciary, employee or agent of any other Enterprise which Indemnitee served
at
the request of the Company; or (b) one (1) year after the final termination
of
any Proceeding (including any rights of appeal thereto) then pending, or
reasonably related to, or arising out of the same facts of, any Proceeding
then
pending, in respect of which Indemnitee is granted rights of indemnification
or
advancement of Expenses hereunder and of any proceeding commenced by Indemnitee
pursuant to Section 12 of this Agreement relating thereto (including any rights
of appeal of any Section 12 Proceeding).
15. Severability.
If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including without
limitation, each portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law;
(b)
such provision or provisions shall be deemed reformed to the extent necessary
to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall
be
construed so as to give effect to the intent manifested thereby.
16. Enforcement
And Binding Effect.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve as a director of the Company, and the Company acknowledges that
Indemnitee is relying upon this Agreement in serving as a director of the
Company.
12
(b) This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof.
(c) The
indemnification and advancement of expenses provided by, or granted pursuant
to
this Agreement shall continue as to a person who has ceased to be a director
and
shall inure to the benefit of the heirs, executors and administrators of such
a
person.
17. Modification
And Waiver.
No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by 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 of this Agreement nor shall any waiver constitute a continuing
waiver.
18. Notice
By Indemnitee.
Indemnitee agrees promptly to notify the Company in writing upon being served
with any summons, citation, subpoena, complaint, indictment, information or
other document relating to any Proceeding or matter which may be subject to
indemnification or advancement of Expenses covered hereunder. The failure of
Indemnitee to so notify the Company shall not relieve the Company of any
obligation which it may have to the Indemnitee under this Agreement or
otherwise.
19. Notices.
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given (a) if delivered
by
hand and receipted for by the party to whom said notice or other communication
shall have been directed, or (b) mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:
(a) If
to
Indemnitee, at the address indicated on the signature page of this Agreement,
or
such other address as Indemnitee shall provide in writing to the
Company.
(b) If
to the
Company to:
Xxx
Xxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Xx Xxxxxxxx, President and Chief Executive Officer
13
With
a
copy to:
Xxxx
Xxxxxxx, P.C.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxxx, Esq.
or
to any
other address as may have been furnished to Indemnitee in writing by the
Company.
20. Contribution.
To the
fullest extent permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to Indemnitee for any reason whatsoever,
the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee, whether for Expenses or Losses, in connection with
any
claim relating to an indemnifiable event under this Agreement, in such
proportion as is deemed fair and reasonable in light of all of the circumstances
of such Proceeding in order to reflect (i) the relative benefits received by
the
Company and Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such Proceeding; and/or (ii) the relative fault of the Company (and
its
directors, officers, employees and agents) and Indemnitee in connection with
such event(s) and/or transaction(s).
21. Applicable
Law And Consent To Jurisdiction.
This
Agreement and the legal relations among the parties shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to its conflict of laws rules. Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 12(a) of this Agreement,
the Company and Indemnitee hereby irrevocably and unconditionally (i) agree
that
any action or proceeding arising out of or in connection with this Agreement
shall be brought only in the Chancery Court of the State of Delaware (the
"Delaware Court"), and not in any other state or federal court in the United
States of America or any court in any other country, (ii) consent to submit
to
the exclusive jurisdiction of the Delaware Court for purposes of any action
or
proceeding arising out of or in connection with this Agreement, (iii) waive
any
objection to the laying of venue of any such action or proceeding in the
Delaware Court, and (iv) waive, and agree not to plead or to make, any claim
that any such action or proceeding brought in the Delaware Court has been
brought in an improper or inconvenient forum.
22. Identical
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
for
all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement. Only one such counterpart signed by
the
party against whom enforceability is sought needs to be produced to evidence
the
existence of this Agreement.
23. Miscellaneous.
Use of
the masculine pronoun shall be deemed to include usage of the feminine pronoun
where appropriate. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
14
IN
WITNESS WHEREOF, the parties have caused this Agreement to be signed as of
the
day and year first above written.
| STAMFORD INDUSTRIAL GROUP, INC. | ||
|
By:
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|
Name:
|
||
|
Title:
|
||
|
Indemnitee:
|
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|
Name:
|
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|
Address:
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