DARLING INTERNATIONAL INC. INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (“Agreement”) is made
as of ______________, 200__ by and between Darling International Inc., a
Delaware corporation (the “Company”), and
______________ (“Indemnitee”).
RECITALS
WHEREAS,
highly competent persons have become more reluctant to serve publicly-held
corporations as directors, officers or in other capacities unless they are
provided with adequate protection through insurance or adequate indemnification
against inordinate risks of claims and actions against them arising out of their
service to and activities on behalf of the corporation;
WHEREAS,
the Board of Directors of the Company (the “Board”) has
determined that, in order to attract and retain qualified individuals, the
Company will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its subsidiaries
from certain liabilities. At the same time, directors, officers, and
other persons in service to corporations or business enterprises are being
increasingly subjected to expensive and time-consuming litigation relating to,
among other things, matters that traditionally would have been brought only
against the Company or business enterprise itself;
WHEREAS,
the uncertainties relating to such insurance and to indemnification have
increased the difficulty of attracting and retaining such persons;
WHEREAS,
the Board has determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons that there
will be increased certainty of such protection in the future;
WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of, such persons
to the fullest extent permitted by applicable law so that they will serve or
continue to serve the Company free from undue concern that they will not be so
indemnified;
WHEREAS,
this Agreement is a supplement to and in furtherance of the Bylaws of the
Company (as amended, the “Bylaws”) and the
Certificate of Incorporation of the Company (as amended, the “Certificate of
Incorporation”) and any resolutions adopted pursuant thereto, and shall
not be deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder; and
WHEREAS,
the Certificate of Incorporation and Bylaws provide that the Company will
indemnify its directors and officers to the fullest extent permitted by law and
will advance expenses in connection therewith, and Indemnitee’s willingness to
serve as a director and/or officer of the Company is based in part on
Indemnitee’s reliance on such provisions; and
Page
1
WHEREAS,
in recognition of Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service to the Company in
an effective manner, and Indemnitee’s reliance on the aforesaid provisions of
the Certificate of Incorporation and Bylaws, and in part to provide Indemnitee
with specific contractual assurance that the protection promised by such
provisions will be available to Indemnitee (regardless of, among other things,
any amendment to or revocation of such provisions or any change in the
composition of the Company’s Board of Directors or any acquisition or business
combination transaction relating to the Company), the Company wishes to provide
in this Agreement for the indemnification of and the advancement of expenses to
Indemnitee as set forth in this Agreement, and, to the extent insurance is
maintained, for the continued coverage of Indemnitee under the Company’s
directors’ and officers’ liability insurance policies;
NOW,
THEREFORE, in consideration of the promises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:
Section
1. Services to the
Company. Indemnitee agrees to serve as [a director][an
officer] of the Company. Indemnitee may, at any time and for any
reason, resign from such position (subject to any other contractual obligation
or any obligation imposed by operation of law), in which event the Company shall
have no obligation under this Agreement to continue to employ Indemnitee in such
position. This Agreement shall not be deemed an employment contract
between the Company (or any of its subsidiaries or any Enterprise) and
Indemnitee. Indemnitee specifically acknowledges that Indemnitee’s
service to the Company (or any of its subsidiaries or any Enterprise), if any,
is at will, and the Indemnitee may be discharged at any time for any reason,
with or without cause, except as may be otherwise provided in any written
employment contract between Indemnitee and the Company (or any of its
subsidiaries or any Enterprise), other applicable formal severance policies or
contracts duly adopted by the Board, or by the Certificate of Incorporation, the
Bylaws and the General Corporation Law of the State of Delaware (the “DGCL”). The
foregoing notwithstanding, this Agreement shall continue in force after
Indemnitee has ceased to serve as [a director][an officer] of the
Company.
Section
2. Definitions. As
used in this Agreement:
(a) 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. any
person or group, within the meaning of Section 13(d) of the Securities Exchange
Act of 1934 or the Securities and Exchange Commission Rules thereunder
(collectively the “Control Rules”),
becoming a “beneficial owner” (as defined in the Control Rules) of more than 50%
of the total voting power of the Company’s outstanding capital stock entitled to
elect directors;
ii. a
majority of the members of the Board are not either (x) members of the Board who
held such position as of the date of the commencement of Indemnitee’s employment
with the Company or election to the Board, as applicable, or (y) nominated or
elected by a majority of the members of the Board described in clause (x);
and
Page
2
iii. the
consolidation of the Company with, or merger with or into any person or any
person being consolidated with, or merger with or into the Company, pursuant to
a transaction in which any of the outstanding voting capital stock of the
Company is converted into or exchanged for cash, securities or other
property.
(b) “Corporate Status”
describes the status of a person who is or was a director, officer, employee or
agent of the Company or of any other corporation, limited liability company,
partnership or joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the request of the Company.
(c) “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.
(d) “Enterprise” shall
mean the Company and any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise
which Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent.
(e) “Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended.
(f) “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 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 (i) 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, supersedeas bond, or other appeal bond or its equivalent, and (ii) for
purposes of Section
13(d) only, Expenses incurred by Indemnitee in connection with the
interpretation, enforcement or defense of Indemnitee’s rights under this
Agreement, by litigation or otherwise. Expenses, however, shall not
include amounts paid in settlement by Indemnitee or the amount of judgments or
fines against Indemnitee.
(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 (5) 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.
Page
3
(h) The term
“Proceeding”
shall include any threatened, pending or completed action, suit, demand,
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, legislative, or investigative nature, including any
appeal therefrom, in which Indemnitee was, is or could or will be involved as a
party, potential party, non-party witness or otherwise by reason of the fact
that Indemnitee is or was a director, officer or employee of the Company, by
reason of any action taken by [him][her] or of any action on [his][her] part
while acting as director, officer or employee of the Company, or by reason of
the fact that [he][she] is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, limited liability
company, partnership, joint venture, trust or 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; provided, however, the above
shall not include any such action or proceeding initiated by Indemnitee to
enforce [his][her] rights under this Agreement.
(i) References
to “other
enterprise” shall include, without limitation, 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, 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][she] reasonably believed to be in or not opposed to
the best interests of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in manner “not opposed to the best
interests of the Company” as referred to in this Agreement.
Section
3. Indemnity in Third-Party
Proceedings. The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 3 if
Indemnitee is, or is threatened to be made, a party to or a participant 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 3, Indemnitee
shall be indemnified to the fullest extent permitted by applicable law against
all Expenses, judgments, fines and amounts paid in settlement (including,
without limitation, all interest, assessments and other charges paid or payable
in connection with or in respect of any of the foregoing) actually and
reasonably incurred by Indemnitee or on [his][her] behalf in connection with
such Proceeding or any claim, issue or matter therein, if Indemnitee acted in
good faith and in a manner [he][she] reasonably believed to be in or not opposed
to the best interests of the Company and, in the case of a criminal proceeding
had no reasonable cause to believe that [his][her] conduct was
unlawful.
Section
4. Indemnity in Proceedings by
or in the Right of the Company. The Company shall
indemnify Indemnitee in accordance with the provisions of this Section 4 if
Indemnitee is, or is threatened to be made, a party to or a participant in any
Proceeding by or in the right of the Company to procure a judgment in its
favor. Pursuant to this Section 4, Indemnitee
shall be indemnified to the fullest extent permitted by applicable law against
all Expenses actually and reasonably incurred by [him][her] or on [his][her]
behalf in connection with such Proceeding or any claim, issue or matter therein,
if Indemnitee acted in good faith and in a manner [he][she] 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 4 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 the Delaware Court of Chancery or any court in which the Proceeding was
brought 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.
Page
4
Section
5. Indemnification for Expenses
of a Party Who Is Wholly or Partly Successful. Notwithstanding any other
provisions of this Agreement, to the fullest extent permitted by applicable law
and to the extent that Indemnitee is a party to (or a participant in) and is
successful, on the merits or otherwise, in any Proceeding or in defense of any
claim, issue or matter therein, in whole or in part, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by [him][her]
in connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to one or more
but less than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by [him][her] or on [his][her] behalf in connection with each successfully
resolved claim, issue or matter. If the Indemnitee is not wholly
successful in such Proceeding, the Company also shall indemnify Indemnitee
against all Expenses reasonably incurred in connection with a claim, issue or
matter related to any claim, issue, or matter on which the Indemnitee was
successful. For purposes of this Section and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
Section
6. Indemnification for Expenses
of a Witness. Notwithstanding any other provision of this
Agreement, to the fullest extent permitted by applicable law and to the extent
that Indemnitee is, by reason of [his][her] Corporate Status, a witness in any
Proceeding to which Indemnitee is not a party, [he][she] shall be indemnified
against all Expenses actually and reasonably incurred by [him][her] or on
[his][her] behalf in connection therewith.
Section
7. Additional
Indemnification. Notwithstanding any other provision of
this Agreement, the Company hereby agrees to indemnify the Indemnitee to the
fullest extent permitted by law, notwithstanding that such indemnification is
not specifically authorized by the other provisions of this Agreement, the
Certificate of Incorporation, the Bylaws or by statute. In the event
of any change, after the date of this Agreement, in any applicable law, statute,
or rule which expands the right of a Delaware corporation to indemnify its
directors or officers, such changes shall be deemed to be within the purview of
Indemnitee’s rights and the Company’s obligations under this
Agreement. In the event of any change in any applicable law, statute
or rule which narrows the right of a Delaware corporation to indemnify its
directors or officers, such changes, to the extent not otherwise required by
such law, statute or rule to be applied to this Agreement shall have no effect
on this Agreement or the parties’ rights and obligations hereunder.
Page
5
Section
8. 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 made to or on behalf of Indemnitee under any insurance
policy or other indemnity provision, except with respect to any excess beyond
the amount paid under any insurance policy or other indemnity provision;
or
(b) for (i)
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 (ii) any reimbursement of the Company by the Indemnitee of any bonus or other
incentive-based or equity-based compensation or of any profits realized by the
Indemnitee from the sale of securities of the Company, as required in each case
under the Exchange Act (including any such reimbursements that arise from an
accounting restatement of the Company pursuant to Section 304 of the
Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”),
or the payment to the Company of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act),
or
(c) except as
provided in Section
13(d) of this Agreement, in connection with any Proceeding (or any part
of any Proceeding) initiated by Indemnitee, including any Proceeding (or any
part of any Proceeding) initiated by Indemnitee against the Company or its
directors, officers, employees or other indemnitees, unless (i) the Board
authorized the Proceeding (or any part of any Proceeding) prior to its
initiation or (ii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable
law;
(d) for any
Expenses incurred by Indemnitee with respect to any proceeding initiated by
Indemnitee to enforce or interpret this Agreement, if a court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
in such proceeding was either frivolous or not made in good faith;
or
(e) with
respect to which a final decision by a court having jurisdiction in the matter
shall determine that Indemnitee has committed fraud on the Company.
Section
9. Advances of
Expenses. The Company shall advance, to the extent not
prohibited by law, the Expenses incurred by Indemnitee in connection with any
Proceeding, and such advancement shall be made 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 include any and all reasonable 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 upon the
execution and delivery to the Company of this Agreement, which shall constitute
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 9 shall not
apply to any claim made by Indemnitee for which indemnity is excluded pursuant
to Section
8.
Page
6
Section
10. Procedure for Notification
and Defense of Claim.
(a) Indemnitee
shall notify the Company in writing of any matter with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses hereunder
as soon as reasonably practicable following the receipt by Indemnitee of written
notice thereof. The written notification to the Company shall include
a description of the nature of the Proceeding and the facts underlying the
Proceeding. To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification following the final disposition of
such action, suit or proceeding. The omission by Indemnitee to notify
the Company hereunder will not relieve the Company from any liability which it
may have to Indemnitee hereunder or otherwise, and any delay in so notifying the
Company shall not constitute a waiver by Indemnitee of any rights under this
Agreement. Notice to the Company shall be directed to the General
Counsel of the Company and shall be given in accordance with the provisions of
Section 20
below.
(b) The
Company will be entitled to participate in the Proceeding at its own
expense.
Section
11. Procedure upon Application
for Indemnification.
(a) Upon
written request by Indemnitee for indemnification pursuant to Section 10(a), a
determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made in the specific case: (i) if a Change in
Control shall have occurred, by Independent Counsel in a written opinion to the
Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in
Control shall not have occurred, (A) by a majority vote of the Disinterested
Directors, even though less than a quorum of the Board, (B) by a committee of
Disinterested Directors designated by a majority vote of the Disinterested
Directors, even though less than a quorum of the Board, or (C) if there are no
such Disinterested Directors or, if such Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Board, a copy of which shall be
delivered to Indemnitee and, if it is so determined that Indemnitee
is entitled to indemnification, payment to Indemnitee shall be made within ten
(10) days after such determination. Indemnitee shall 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 costs or Expenses (including attorneys’ fees and
disbursements) 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.
Page
7
(b) In the
event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 11(a), the
Independent Counsel shall be selected as provided in this Section 11(b). If
a Change in Control shall not have occurred, the Independent Counsel shall be
selected by the Board, and the Company shall give written notice to Indemnitee
advising [him][her] 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, 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 ten (10) days after
such written notice of selection shall have been given, 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 2,
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
has determined that such objection is without merit. If, within
twenty (20) days after the later of submission by Indemnitee of a written
request for indemnification pursuant to Section 10(a)
and the final disposition of the Proceeding, 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 11(a). Upon
the due commencement of any judicial proceeding or arbitration pursuant to Section 13(a),
Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
Section
12. 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, to the fullest
extent not prohibited by law, presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for
indemnification in accordance with Section 10(a),
and the Company shall, to the fullest extent not prohibited by law, 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 legal counsel) to have made a determination prior to
the commencement of any action to enforce 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 legal 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) Subject
to Section
13(e), if the person, persons or entity empowered or selected under Section 11 to
determine whether Indemnitee is entitled to indemnification shall not have made
a determination within sixty (60) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to indemnification
shall, to the fullest extent not prohibited by law, be deemed to have been made
and Indemnitee shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee’s statement not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; provided, however, that such
60-day period may be extended for a reasonable time, not to exceed an additional
thirty (30) 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; and provided, further, that the
foregoing provisions of this Section 12(b) shall
not apply if the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Section
11(a).
Page
8
(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 (except as otherwise expressly provided in this Agreement)
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][she] 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][her] conduct was unlawful.
(d) Reliance as Safe
Harbor. 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 with reasonable care by the Enterprise. The
provisions of this Section 12(d) shall
not be deemed to be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed to have met the applicable standard of
conduct set forth in this Agreement.
(e) Actions of
Others. The knowledge and/or actions, or failure to act, of
any director, officer, employee or agent of the Enterprise shall not be imputed
to Indemnitee for purposes of determining the right to indemnification under
this Agreement.
Section
13. Remedies of
Indemnitee.
(a) Subject
to Section
13(e), in the event that (i) a determination is made pursuant to Section 11 that
Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 9, (iii)
no determination of entitlement to indemnification shall have been made pursuant
to Section
11(a) within ninety (90) days after receipt by the Company of the request
for indemnification, (iv) payment of indemnification is not made pursuant to
Sections 5
or 6 or the
last sentence of Section 11(a) within
ten (10) days after receipt by the Company of a written request therefor, (v)
payment of indemnification pursuant to Sections 3, 4 or 7 is not made within
ten (10) days after a determination has been made that Indemnitee is entitled to
indemnification, or (vi) in the event that the Company or any other person takes
or threatens to take any action to declare this Agreement void or unenforceable,
or institutes any litigation or other action or Proceeding designed to deny, or
to recover from, the Indemnitee the benefits provided or intended to be provided
to the Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by
a court of [his][her] entitlement to such indemnification or advancement of
Expenses. Alternatively, Indemnitee, at [his][her] 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. Indemnitee shall commence such proceeding seeking an
adjudication or an award in arbitration within one hundred eighty (180) days
following the date on which Indemnitee first has the right to commence such
proceeding pursuant to this Section 13(a); provided, however, that the
foregoing clause shall not apply in respect of a proceeding brought by
Indemnitee to enforce [his][her] rights under Section 5. The
Company shall not oppose Indemnitee’s right to seek any such adjudication or
award in arbitration.
Page
9
(b) In the
event that a determination shall have been made pursuant to Section 11(a)
that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 13 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 13, the
Company shall have the burden of proving Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) If a
determination shall have been made pursuant to Section 11(a)
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 13,
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee’s statement not materially
misleading, in connection with the request for indemnification, or (ii) a
prohibition against such indemnification under applicable law.
(d) The
Company shall, to the fullest extent not prohibited by law, be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this
Section 13 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. It
is the intent of the Company that the Indemnitee not be required to incur legal
fees or other Expenses associated with the interpretation, enforcement or
defense of Indemnitee’s rights under this Agreement by litigation or otherwise
because the cost and expense thereof would substantially detract from the
benefits intended to be extended to the Indemnitee hereunder. The
Company shall indemnify Indemnitee against any and all Expenses and, if
requested by Indemnitee, shall (within ten (10) days after receipt by the
Company of a written request therefor) advance, to the extent not prohibited by
law, such Expenses to Indemnitee, which are incurred by Indemnitee in connection
with any action brought by Indemnitee for indemnification or advance of Expenses
from the Company under this Agreement or under any directors’ and officers’
liability insurance policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification,
advancement of Expenses or insurance recovery, as the case may be.
(e) Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement
to indemnification under this Agreement shall be required to be made prior to
the final disposition of the Proceeding.
Page
10
Section
14. 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 Certificate of
Incorporation, the Bylaws, any agreement, a vote of stockholders or a resolution
of directors, or otherwise (collectively, the “Other Indemnity
Provisions”). 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][her] Corporate Status prior to such amendment, alteration or
repeal. 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. For
purposes of greater clarity, (a) to the extent that
the Indemnitee otherwise would have any greater right to indemnification under
any Other Indemnity Provision, the Indemnitee will be deemed to have such
greater right hereunder and (b) to the extent that
any change is made to any Other Indemnity Provision that permits any greater
right to indemnification than that provided under this Agreement as of the date
hereof, the Indemnitee will be deemed to have such greater right
hereunder. 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, officers, employees, or agents of the Company
or of any other corporation, partnership, joint venture, trust, employee benefit
plan or 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, officer, employee or agent under such policy or
policies. If, at the time of the receipt of a notice of a claim
pursuant to the terms hereof, the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of the commencement of
such proceeding to the insurers in accordance with the procedures set forth in
the respective policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.
(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 hereunder (or for which advancement is provided
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,
employee or agent of any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise
shall be reduced by any amount Indemnitee has actually received as
indemnification or advancement of Expenses from such other corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or
other enterprise.
Page
11
Section
15. Duration of Agreement;
Successors. 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 [an officer][a director] of the Company or (b) upon the final
disposition or termination 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 13
relating thereto. The Company will require any successor (whether
direct or indirect, by purchase of stock or assets, merger, consolidation,
reorganization or otherwise) to all or substantially all of the business or
assets of the Company, by agreement in form and substance satisfactory to the
Indemnitee and [his] [her] counsel, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place. This
Agreement shall be binding upon the Company and any successor to the Company,
including, without limitation, any person acquiring directly or indirectly all
or substantially all of the business or assets of the Company, whether by
purchase, merger, consolidation, reorganization or otherwise (and such successor
will thereafter be deemed the “Company” for purposes of this Agreement), but
will not otherwise be assignable, transferable or delegatable by the Company,
and shall inure to the benefit of Indemnitee and [his][her] heirs, executors and
administrators.
Section
16. 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.
Section
17. Enforcement.
(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 [an officer][a director] of the Company, and the Company
acknowledges that Indemnitee is relying upon this Agreement in serving as [an
officer][a director] of the Company.
(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; provided, however, that this
Agreement is a supplement to and in furtherance of the Certificate of
Incorporation, the Bylaws and applicable law, and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of Indemnitee
thereunder.
Page
12
Section
18. 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.
Section
19. 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.
Section
20. Notices. All notices, requests,
demands and other communications under this Agreement shall be in writing and
shall be deemed to have been duly given if (a) delivered by hand to the party to
whom said notice or other communication shall have been directed,
(b) mailed by certified or registered mail with postage prepaid, on the
third business day after the date on which it is so mailed, (c) mailed by
reputable overnight courier to the party to whom said notice or other
communication shall have been directed or (d) sent by facsimile transmission,
with receipt of confirmation that such transmission has been
received:
(a) If to
Indemnitee, at the address indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide to the Company.
(b) If to the
Company to 251 O’Xxxxxx Xxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000, Facsimile
No.: (000) 000-0000, Attn: General Counsel, or to any other address as may have
been furnished to Indemnitee by the Company.
Section
21. 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 judgments, fines, penalties,
excise taxes, amounts paid or to be paid in settlement and/or for Expenses, 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).
Section
22. 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. Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 13(a), 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.
Page
13
Section
23. Waiver of Jury
Trial. Each Party acknowledges and agrees that any controversy
that may arise under this Agreement is likely to involve complicated and
difficult issues, and therefore it hereby irrevocably and unconditionally waives
any right it may have to a trial by jury in respect of any litigation directly
or indirectly arising out of or relating to this Agreement, or the breach,
termination or validity of this Agreement, or the transactions contemplated by
this Agreement. Each Party certifies and acknowledges that (a) no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce the
foregoing waiver, (b) it understands and
has considered the implications of this waiver, (c) it makes this
waiver voluntarily, and (d) it has been
induced to enter into this Agreement by, among other things, the mutual waivers
and certifications contained in this Section 23.
Section
24. Identical
Counterparts. This Agreement may be executed in two 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.
Section
25. Miscellaneous. 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.
[The
Remainder of this Page Is Intentionally Left Blank.]
Page
14
IN
WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the
day and year first above written.
By: ____________________________
Name:
____________________________
Title:
_____________________________
INDEMNITEE
By: ____________________________
Name:
____________________________
Address:
__________________________
Page
15
