INDEMNIFICATION AGREEMENT
Exhibit 10.1
EXECUTION COPY
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of January ___, 2007 by
and between BOWATER INCORPORATED, a Delaware corporation (the “Corporation”), and
(“Indemnitee”).
RECITALS
WHEREAS, Indemnitee performs a valuable service for the Corporation;
WHEREAS, the Restated Certificate of Incorporation of the Corporation, dated March 23, 1984,
as the same has been or may be amended from time to time (the “Restated Certificate of
Incorporation”) provides that the Corporation shall indemnify the officers and directors of the
Corporation to the fullest extent permitted by Section 145 of the Delaware General Corporation Law
(“DGCL”);
WHEREAS, the Restated Certificate of Incorporation and the DGCL expressly provide that the
indemnification provisions set forth therein are not exclusive, and thereby contemplate that
agreements may be entered into between the Corporation and members of the Board of Directors of the
Corporation (the “Board”) and officers with respect to indemnification;
WHEREAS, it is reasonable and prudent for the Corporation contractually to obligate itself to
indemnify, and to advance expenses on behalf of, its officers and directors to the fullest extent
permitted by applicable law so that they will serve or continue to serve the Corporation free from
undue concern that they will not be indemnified; and
WHEREAS, this Agreement is separate and independent of the Restated 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, nor shall the existence
of any rights under the Restated Certificate of Incorporation, the Corporation’s Bylaws, or any
other agreement be deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee under this Agreement.
NOW, THEREFORE, in consideration of the promises and the covenants contained herein, the
Corporation and Indemnitee do hereby covenant and agree as follows:
1. Services to the Corporation. Indemnitee will serve or continue to serve, at the
will of the Corporation or under separate contract, if such exists, as an officer and/or director
of the Corporation for so long as Indemnitee is duly elected or appointed and qualified in
accordance with the Restated Certificate of Incorporation and Bylaws of the Corporation or until
Indemnitee tenders his or her resignation. If Indemnitee is an employee at will of the
Corporation, nothing herein shall change such employee’s status as an employee at will.
2. Definitions. As used in this Agreement:
(a) The terms “Beneficial Owner” and “Beneficial Ownership” shall have the
meaning set forth in Rule 13d-3 promulgated under the Exchange Act as in effect on the date hereof.
(b) A “Change in Control” shall be deemed to occur upon the earliest after the date of
this Agreement of any of the following events:
(i) Acquisition of Stock by Third Party. Any Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Corporation representing twenty percent (20%)
or more of the combined voting power of the Corporation’s then outstanding securities entitled to
vote generally in the election of directors, unless (1) the change in the relative Beneficial
Ownership of the Corporation’s securities by any Person results solely from a reduction in the
aggregate number of outstanding shares of securities entitled to vote generally in the election of
directors, or (2) such acquisition was approved in advance by the Continuing Directors and such
acquisition would not constitute a Change in Control under part (iii) of this definition;
(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 Corporation to effect a Change in Control) whose
election by the Board or nomination for election by the Corporation’s stockholders was approved by
a vote of a majority 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
(collectively, the “Continuing Directors”), cease for any reason to constitute at least a majority
of the members of the Board;
(iii) Corporate Transactions. Any reorganization, merger or consolidation involving
the Corporation (a “Business Combination”), in each case, unless, following such Business
Combination: (1) all or substantially all of the individuals and entities who were the Beneficial
Owners of securities entitled to vote generally in the election of directors immediately prior to
such Business Combination beneficially own, directly or indirectly, more than 51% of the combined
voting power of the then outstanding securities of the Corporation entitled to vote generally in
the election of directors resulting from such Business Combination (including, without limitation,
a corporation which as a result of such transaction owns the Corporation or all or substantially
all of the Corporation’s assets either directly or through one or more Subsidiaries) in
substantially the same proportions as their ownership, immediately prior to such Business
Combination, of the securities entitled to vote generally in the election of directors; (2) no
Person (excluding any corporation resulting from such Business Combination) is the Beneficial
Owner, directly or indirectly, of twenty percent (20%) or more of the combined voting power of the
then outstanding securities entitled to vote generally in the election of directors of such
corporation except to the extent that such ownership existed prior to the Business Combination; and
(3) at least a majority of the Board of Directors of the corporation resulting from such Business
Combination were Continuing Directors at the time of the execution of the initial agreement, or of
the action of the Board of Directors, providing for such Business Combination;
(iv) Liquidation. The approval by the stockholders of the Corporation of a complete
liquidation of the Corporation, or an agreement or series of agreements for the sale or disposition
by the Corporation of all or substantially all of the Corporation’s assets, other than factoring
the Corporation’s current receivables or escrows due (or, if such approval is not
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required, the decision by the Board to proceed with such a liquidation, sale, or disposition
in one transaction or a series of related transactions); or
(c) “Covered Capacity” means present or former status as a director, officer, trustee,
general partner, managing member, or fiduciary of the Corporation, any Subsidiary, or any other
corporation, partnership, limited liability company, joint venture, trust or other enterprise at
the request of, for the convenience of, or to represent the interests of the Corporation or any
Subsidiary.
(e) “Disinterested Director” shall mean a director of the Corporation who is not and
was not a party to the Proceeding for which indemnification is sought by Indemnitee.
(f) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(g) “Expenses” shall include all direct and indirect costs, fees and expenses of any
type or nature whatsoever, including, without limitation, all attorneys’ fees and costs, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses, fees of private
investigators and professional advisors, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, fax transmission charges, secretarial services and all
other disbursements, obligations or expenses in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, being or preparing to be a witness in, settlement or appeal
of, or otherwise participating in, a Proceeding, including reasonable compensation for time spent
by the Indemnitee for which he or she is not otherwise compensated by the Corporation or any third
party. Expenses also shall include Expenses incurred in connection with any appeal resulting from
any Proceeding, including without limitation the principal, premium, security for, and other costs
relating to any cost bond, supersedeas 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.
(h) “Independent Counsel” shall mean a law firm, or a member of a law firm, with
significant experienced in matters of corporation law and neither presently is, nor in the past
five years has been, retained to represent: (i) the Corporation or Indemnitee in any matter
material to either such party (other than with respect to matters concerning 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 Corporation or Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
(i) The term “Person” shall have the meaning set forth in Sections 13(d) and 14(d) of
the Exchange Act as in effect on the date hereof; provided, however, that “Person”
shall exclude: (i) the Corporation; (ii) any Subsidiary of the Corporation; (iii) any employment
benefit plan of the Corporation or of a Subsidiary of the Corporation or of any corporation owned,
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directly or indirectly, by the stockholders of the Corporation in substantially the same
proportions as their ownership of stock of the Corporation; and (iv) any trustee or other fiduciary
holding securities under an employee benefit plan of the Corporation or of a Subsidiary of the
Corporation or of a corporation owned directly or indirectly by the stockholders of the Corporation
in substantially the same proportions as their ownership of stock of the Corporation.
(j) A “Potential Change in Control” shall be deemed to have occurred if: (i) the
Corporation enters into an agreement or arrangement, the consummation of which would result in the
occurrence of a Change in Control; (ii) any Person or the Corporation publicly announces an
intention to take or consider taking actions which if consummated would constitute a Change in
Control; (iii) any Person who is or becomes the Beneficial Owner, directly or indirectly, of
securities of the Corporation representing 5% or more of the combined voting power of the
Corporation’s then outstanding securities entitled to vote generally in the election of directors
increases his Beneficial Ownership of such securities by 5% or more over the percentage so owned by
such Person on the date hereof unless such acquisition was approved in advance by the Board; or
(iv) the Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential
Change in Control has occurred.
(k) The term “Proceeding” shall include any threatened, pending or completed action,
suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding, whether brought in
the right of the Corporation, another Person, or otherwise and whether of a civil, criminal,
administrative or investigative nature, in which Indemnitee was, is, will or might be involved as a
party or otherwise by reason of the fact that Indemnitee is or was serving in a Covered Capacity by
reason of any action taken (or failure to act) by him or her or of any action (or failure to act)
on his or her part while serving in a Covered Capacity, 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.
(l) References to “fines” shall include any excise tax assessed with respect to any
employee benefit plan; references to “serving at the request of the Corporation” shall
include any service as a director, officer, employee, agent or fiduciary of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary
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 Corporation” as referred to in this
Agreement.
(m) In connection with any merger or consolidation, references to “the Corporation”
shall include not only the resulting or surviving corporation but also any constituent corporation
or any constituent of a constituent corporation, which, if its separate existence had continued,
would have had power and authority to indemnify its directors or officers and employees or agents.
The intent of this provision is that a person who is or was a director of such constituent
corporation after the date hereof or is or was serving at the request of such constituent
corporation as a director, officer, employee, trustee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise after the
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date hereof, shall stand in the same position under this Agreement with respect to the
resulting or surviving corporation as the person would have under this Agreement with respect to
such constituent corporation if its separate existence had continued.
(n) The term “Subsidiary” shall mean any corporation or other entity of which a
majority of the voting power of the voting equity securities or equity interest is owned, directly
or indirectly, by that corporation or entity.
3. Indemnification.
(a) The Corporation shall indemnify Indemnitee in accordance with the provisions of this
Section 3(a) when Indemnitee was, is, or is threatened to be made, a party to or is otherwise
involved in any Proceeding (other than a Proceeding by or in the right of the Corporation to
procure a judgment in its favor). Pursuant to this Section 3(a), Indemnitee shall be indemnified
against all Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in connection with or in
respect of such Expenses, judgments, fines, penalties and amounts paid in settlement) actually and
reasonably incurred by Indemnitee or on his or her behalf in connection with such Proceeding or any
claim, issue or matter therein, if, and only 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 Corporation, and, in the
case of any criminal Proceeding, he had no reasonable cause to believe his or her conduct was
unlawful.
(b) The Corporation shall indemnify Indemnitee in accordance with the provisions of this
Section 3(b) when Indemnitee was, is, or is threatened to be made, a party to or is otherwise
involved in any Proceeding by or in the right of the Corporation to procure a judgment in its
favor. Pursuant to this Section 3(b), Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred by Indemnitee or on his or her behalf in connection with such
Proceeding or any claim, issue or matter therein, if, and only if, Indemnitee acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
Corporation. No indemnification for Expenses shall be made under this Section 3(b) 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 Corporation, unless and only to the extent that the court in which the Proceeding was
brought or the Delaware Court 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.
(c) Any indemnification under subsections (a) and (b) of this Section 3 (unless otherwise
ordered by a court) shall be made by the Corporation in accordance with the procedures set forth in
Sections 7, 8 and 9 hereof.
(d) Notwithstanding any other provisions of this Agreement, 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
with respect to any claim, issue or matter therein, in whole or in part, the Corporation shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by him or 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
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matters in such Proceeding, the Corporation shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by him or her or on his or her behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this Section 3(d) and without
limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with
or without prejudice, or the settlement of any claim, issue or matter in such a Proceeding without
admission of liability, shall be deemed to be a successful result as to such claim, issue or
matter. If the Indemnitee is not wholly successful in such Proceeding but is partially successful,
the Corporation 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 unsuccessful.
(e) 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 or she shall be indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith.
4. Additional Indemnification Rights.
(a) Notwithstanding any limitation in Section 3 of this Agreement, the Corporation 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
Corporation to procure a judgment in its favor) against all Expenses, judgments, fines, penalties
and amounts paid in settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such Expenses, judgments, fines, penalties and amounts
paid in settlement) actually and reasonably incurred by Indemnitee in connection with the
Proceeding. No indemnification shall be made under this Section 4(a) on account of Indemnitee’s
conduct which constitutes a breach of Indemnitee’s duty of loyalty to the Corporation 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 this Section 4, 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 or provisions
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 officers, directors and/or key employees.
5. Contribution In The Event Of Joint Liability.
(a) To the fullest extent permissible under applicable law, if the indemnification rights
provided for in this Agreement are unavailable to Indemnitee in whole or in part for any reason
whatsoever, then in any Proceeding in which the Corporation is jointly liable with Indemnitee (or
would be if joined in such Proceeding) the Corporation shall pay, in the first instance, the entire
amount incurred by Indemnitee, whether for judgments, liabilities,
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fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses,
in connection with any Proceeding without requiring Indemnitee to contribute to such payment, and
the Corporation hereby waives and relinquishes any right of contribution it may have at any time
against Indemnitee.
(b) The Corporation shall not enter into any settlement unless such settlement provides for a
full and final release of all claims asserted against Indemnitee. The Corporation shall not be
liable to Indemnitee under this Agreement for amounts paid in settlement of any Proceeding effected
without the Corporation’s prior written consent. Neither the Corporation nor Indemnitee shall
unreasonably withhold consent to any proposed settlement; provided, however, that
Indemnitee may withhold consent to any settlement that does not provide the full, final, complete
and unconditional release.
(c) The Corporation hereby agrees to fully indemnify Indemnitee from any claims for
contribution which may be brought by officers, directors or employees of the Corporation other than
Indemnitee who may be jointly liable with Indemnitee.
6. Exclusions. Notwithstanding any other provision in this Agreement, the Corporation
shall not be obligated under this Agreement to make any indemnification 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 or agreement (other than this Agreement), either by
the Corporation or otherwise, except with respect to any excess beyond the amount actually received
under any insurance policy, contract, agreement, other indemnity provision or otherwise;
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Corporation within the meaning of Section 16(b) of the Exchange Act
or similar provisions of state statutory law or common law; or
(c) except as otherwise provided in Sections 11(e) and (f) hereof, prior to a Change in
Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee,
and not brought by way of defense, including any Proceeding (or any part of any Proceeding)
initiated by Indemnitee against the Corporation or its directors, officers, employees or other
indemnitees, unless (i) the Board of Directors of the Corporation authorized the Proceeding (or any
part of any Proceeding) prior to its initiation; or (ii) the Corporation otherwise provides such
indemnification in its sole discretion, pursuant to the powers vested in the Corporation under
applicable law.
7. Advances of Expenses; Defense of Claim.
(a) Notwithstanding any provision of this Agreement to the contrary, and to the fullest extent
permitted by applicable law, the Corporation shall advance to Indemnitee the Expenses incurred by
Indemnitee (or reasonably expected by Indemnitee to be incurred by Indemnitee within the next three
months) in connection with any Proceeding. The Corporation will advance such Expenses within ten
(10) days after the receipt by the Corporation from Indemnitee of a statement or statements
requesting such advances from time to time, whether
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prior to or after final disposition of any Proceeding. The statement(s) shall be in a form
reasonably acceptable to the Corporation and shall set forth in reasonable detail the Expenses to
be advanced. All 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 be indemnified under the other provisions of this Agreement. Advances shall include
any and all reasonable Expenses incurred pursuing a Proceeding to enforce this right of
advancement, including Expenses incurred preparing and forwarding statement(s) to the Corporation
to support the advances claimed. The Indemnitee shall qualify for advances, to the fullest extent
permitted by applicable law, solely upon the execution and delivery to the Corporation of an
Undertaking in the form of Exhibit A hereto, providing that Indemnitee undertakes to repay
the advance to the extent that it is ultimately determined that Indemnitee is not entitled to be
indemnified by the Corporation under the provisions of this Agreement. This Section 7(a) shall not
apply to any claim made by Indemnitee for which indemnification is excluded pursuant to Section 6
hereof.
(b) If the Corporation disputes a portion of the Expenses for which advancement is requested,
the undisputed portion shall be advanced and only the disputed portion withheld pending resolution
of the dispute.
(c) The Corporation shall be entitled to participate at its own expense in the defense of any
Proceeding to which Indemnitee is a party.
8. Procedure For Notification And Application For Indemnification.
(a) Indemnitee agrees to notify promptly the Corporation in writing upon being served with any
summons, citation, subpoena, complaint, indictment, or document relating to any Proceeding or
matter which may be subject to indemnification or advancement of Expenses covered hereunder.
Additionally, Indemnitee will, to the extent reasonably feasible, keep the Corporation generally
informed of and consult with the Corporation with respect to, the status and defense of any such
Proceeding or matter; provided, however, that this sentence shall not apply in the
event of a Proceeding arising under Section 11 of this Agreement. The failure of Indemnitee to so
notify or keep the Corporation generally informed and to consult with the Corporation shall not
relieve the Corporation of any obligation which it may have to the Indemnitee under this Agreement.
(b) Indemnitee may deliver to the Corporation a written application to indemnify Indemnitee in
accordance with this Agreement. The General Counsel of the Corporation (or in the absence of the
General Counsel, the Corporate Secretary of the Corporation) shall, promptly upon receipt of such a
request for indemnification, advise the Board in writing that Indemnitee has requested
indemnification. 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 in accordance with Section 9(a) of this Agreement.
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9. Procedure Upon Application For Indemnification.
(a) Upon delivery of the written application by Indemnitee for indemnification pursuant to
Section 8(b) of this Agreement, a determination, if required by applicable law, with respect to
Indemnitee’s entitlement thereto shall be made in the specific case by one of the following
methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the
Disinterested Directors, even though less than a quorum of the Board or (ii) by Independent Counsel
in a written opinion to the Board, a copy of which shall be delivered to Indemnitee. The
Corporation will promptly advise Indemnitee in writing with respect to any determination that
Indemnitee is or is not entitled to indemnification, including a description of any reason or basis
for which indemnification has been denied. 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 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 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 Corporation (irrespective of the determination as
to Indemnitee’s entitlement to indemnification).
(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). The Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give
written notice to the Corporation advising it of the identity of the Independent Counsel so
selected and certifying that the Independent Counsel so selected meets the requirements of
“Independent Counsel” as defined in Section 2 of this Agreement. If the Independent Counsel is
selected by the Board, the Corporation shall give written notice to Indemnitee advising him of the
identity of the Independent Counsel so selected and certifying that the Independent Counsel so
selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement.
In either event, Indemnitee or the Corporation, as the case may be, may, within ten (10) days
after such written notice of selection shall have been received, deliver to the Corporation 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
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
twenty (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 Corporation or Indemnitee may petition the Delaware Court for resolution of any objection which
shall have been made by the Corporation or Indemnitee to the other’s selection of Independent
Counsel and/or for the appointment as
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Independent Counsel of a person selected by the Delaware Court or by such other person as the
Delaware 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 11(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 Corporation agrees to pay the reasonable fees and expenses of Independent Counsel and
to fully indemnify such Independent Counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(d) If the Corporation disputes a portion of the amounts for which indemnification is
requested, the undisputed portion shall be paid and only the disputed portion withheld pending
resolution of the disputes.
10. 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 Corporation 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 Corporation (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
Corporation (including 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(a) 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 Corporation 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 (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 final judicial
determination that any or all such indemnification is expressly prohibited under applicable law;
provided, however, that such 30-day period shall 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.
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(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 reasonably believed to be in or not opposed to
the best interests of the Corporation or, with respect to any criminal Proceeding, that Indemnitee
had reasonable cause to believe that his or her 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 Corporation
or a Subsidiary, including financial statements, or on information supplied to Indemnitee by the
directors or officers of the Corporation or a Subsidiary in the course of their duties, or on the
advice of legal counsel for the Corporation or a Subsidiary, its Board, any committee of the Board
or any director, or on information or records given or reports made to the Corporation or a
Subsidiary, its Board, any committee of the Board or any director, by an independent certified
public accountant or by an appraiser or other expert selected by the Corporation or a Subsidiary,
its Board, any committee of the Board or any director. The provisions of this Section 10(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 Corporation or a Subsidiary shall not
be imputed to Indemnitee for purposes of determining the right to indemnification under this
Agreement.
11. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 9(a) of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement; (ii) advancement of
Expenses, to the fullest extent permitted by law, 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 the time period specified in Section 10(b) of this
Agreement; (iv) payment of indemnification is not made pursuant to Sections 3(d) or 3(e), 4(a) or
4(b) or the last sentence of Section 9(a) of this Agreement within ten (10) days after receipt by
the Corporation of a written request therefor; (v) a contribution payment is not made in a timely
manner pursuant to Section 5 of this Agreement; (vi) payment of indemnification pursuant to Section
3(a) or Section 3(b) of this Agreement is not made within ten (10) days after a determination has
been made that Indemnitee is entitled to indemnification; or (vii) payment to Indemnitee pursuant
to any indemnification rights under this Agreement or otherwise is not made within ten (10) days
after receipt by the Corporation or a written request therefor, Indemnitee shall be entitled to an
adjudication by the Delaware Court of his or her entitlement to such indemnification, contribution
or advancement. Alternatively, Indemnitee, in his or her sole discretion, may seek an award in
arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of
the American Arbitration Association. Except as set forth herein, the provisions of Delaware law
(without regard to its conflict of laws rules)
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shall apply to any such arbitration. The Corporation shall not oppose Indemnitee’s right to
seek any such adjudication or award in arbitration.
(b) Upon the occurrence or non-occurrence of any of the events set forth in Section 11(a) of
this Agreement, any judicial proceeding or arbitration commenced pursuant to this Section 11 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 11, Indemnitee shall be presumed to be
entitled to be indemnified and to receive contribution and advances of Expenses under this
Agreement and the Corporation shall have the burden of proving Indemnitee is not entitled to be
indemnified and to receive advances of Expenses, as the case may be, and the Corporation 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 11, Indemnitee shall not be required to reimburse the
Corporation 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 Corporation shall be bound by such determination in
any judicial proceeding or arbitration commenced pursuant to this Section 11, 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.
(d) The Corporation shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 11 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 Corporation is bound by all the provisions of this Agreement.
(e) Pursuant to this Agreement, Corporation shall indemnify Indemnitee and, if requested by
Indemnitee, advance Expenses which are incurred by Indemnitee in connection with any judicial
proceeding or arbitration brought by Indemnitee (i) to enforce his or her rights under, or to
recover damages for breach of, this Agreement or any other indemnification, advancement or
contribution agreement or provision of the Restated Certificate of Incorporation or the
Corporation’s Bylaws now or hereafter in effect; or (ii) for recovery or advances under any
insurance policy maintained by any person for the benefit of Indemnitee. Expenses subject to
Section 11(e) of this Agreement shall be paid by the Corporation regardless of the outcome of the
judicial proceeding or arbitration and regardless of whether Indemnitee ultimately is determined to
be entitled to indemnification, advancement, contribution, or insurance recovery, as the case may
be (unless such judicial proceeding or arbitration was not brought by Indemnitee in good faith).
(f) Interest shall be paid by the Corporation to Indemnitee at the legal rate under Delaware
law, compounded monthly, commencing with the date on which Indemnitee
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requests indemnification, contribution, or advancement of any Expenses and ending with the
date on which such payment is made to Indemnitee by the Corporation.
12. Establishment Of Trust. In the event of a Potential Change in Control, the
Corporation shall, upon written request by Indemnitee, create a “Trust” for the benefit of
Indemnitee and from time to time upon written request of Indemnitee shall fund such Trust in an
amount sufficient to satisfy any and all Expenses reasonably anticipated at the time of each such
request to be incurred in connection with investigating, preparing for, participating in or
defending any Proceedings, and any and all judgments, fines, penalties 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 and amounts paid in settlement) in connection
with any and all Proceedings from time to time actually paid or claimed, reasonably anticipated or
proposed to be paid. The trustee of the Trust (the “Trustee”) shall be a bank or trust company or
other individual or entity chosen by the Indemnitee and reasonably acceptable to the Corporation.
Nothing in this Section 12 shall relieve the Corporation of any of its obligations under this
Agreement. The amount or amounts to be deposited in the Trust pursuant to the foregoing funding
obligation shall be determined by mutual agreement of the Indemnitee and the Corporation or, if the
Corporation and the Indemnitee are unable to reach such an agreement, by Independent Counsel
selected in accordance with Section 9(b) of this Agreement. The terms of the Trust shall provide
that, except upon the consent of both the Indemnitee and the Corporation, upon a Change in Control:
(a) the Trust shall not be revoked or the principal thereof invaded, without the written consent of
the Indemnitee; (b) the Trustee shall advance, to the fullest extent permitted by applicable law,
within two (2) business days of a request by the Indemnitee and upon the execution and delivery to
the Corporation 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 Corporation; (c) the Trust shall continue to be funded by the Corporation in accordance with
the funding obligations set forth above; (d) the Trustee shall promptly pay to the Indemnitee all
amounts for which the Indemnitee shall be entitled to indemnification pursuant to this Agreement or
otherwise; and (e) all unexpended funds in such Trust shall revert to the Corporation upon mutual
agreement by the Indemnitee and the Corporation or, if the Indemnitee and the Corporation are
unable to reach such an agreement, by Independent Counsel selected in accordance with Section 9(b)
of this Agreement, that the Indemnitee has been fully indemnified under the terms of this
Agreement. The Trust shall be governed by Delaware law (without regard to its conflicts of laws
rules) and the Trustee shall consent to the exclusive jurisdiction of the Delaware Court in
accordance with Section 20 of this Agreement.
13. Security. Notwithstanding anything herein to the contrary, to the extent
requested by the Indemnitee and approved by the Board, the Corporation may at any time and from
time to time provide security to the Indemnitee for the Corporation’s obligations hereunder through
an irrevocable bank line of credit, funded trust or other collateral. Any such security, once
provided to the Indemnitee, may not be revoked or released without the prior written consent of the
Indemnitee.
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14. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of Indemnitee as provided by this Agreement (i) shall not be deemed exclusive
of any other rights to which Indemnitee may at any time be entitled under applicable law, the
Restated Certificate of Incorporation or the Corporation’s bylaws, any agreement, a vote of
stockholders, a resolution of directors or otherwise and (ii) shall be enforced and this Agreement
shall be interpreted independently of and without reference to or limitation or constraint (whether
procedural, substantive or otherwise) by any other such rights to which Indemnitee may at any time
be entitled. 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 applicable law, whether by statute or judicial decision, permits
greater indemnification or advancement rights than would be afforded currently under the Restated
Certificate of Incorporation, the Corporation’s bylaws 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. To the extent that a change in Delaware law, whether by statute or judicial decision,
narrows or limits indemnification or advancement of Expenses than are afforded currently under the
Restated Certificate of Incorporation, the Corporation’s bylaws and this Agreement, it is the
intent of the parties hereto that such change, except to the extent required by applicable law,
shall have no effect on this Agreement or the parties’ rights and obligations hereunder. 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, 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) The purchasing or and maintaining of insurance or the furnishing of similar protection or
the making of other arrangements including, but not limited to, providing a trust fund, letter of
credit, or surety bond on behalf of Indemnitee against any liability in a Covered Capacity whether
or not the Corporation would have the power to indemnify him against such liability under the
provisions of this Agreement, shall not in any way limit or affect the rights and obligations of
the Corporation or of the Indemnitee under this Agreement except as expressly provided herein, and
the execution and delivery of this Agreement by the Corporation and the Indemnitee shall not in any
way limit or affect the rights and obligations of the Corporation or the other party or parties
thereto under any such arrangement.
(c) To the extent that the Corporation maintains an insurance policy or policies providing
liability insurance for directors, officers, trustees, partners, managing members, fiduciaries,
employees or agents of the Corporation, any Subsidiary or any other entity which such person serves
at the request of the Corporation, 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, trustee, partner, managing member, fiduciary, officer, employee or agent under such
policy or policies. If, at the time the Corporation receives notice from any source of a
Proceeding as to which Indemnitee is a party or a participant (as a witness or otherwise), the
Corporation has director and officer liability insurance in effect, the Corporation shall give
prompt notice of such Proceeding to the insurers in accordance with the procedures set
14
forth in the respective policies. The Corporation shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a
result of such Proceeding in accordance with the terms of such policies.
(d) In the event of any payment under this Agreement, the Corporation 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 Corporation to bring suit to enforce such rights.
(e) The Corporation’s obligation to indemnify or advance Expenses hereunder to Indemnitee who
is or was serving at the request of the Corporation as a director, officer, trustee, partner,
managing member, fiduciary, employee or agent of any Subsidiary shall be reduced by any amount
Indemnitee has actually received as indemnification payments or advancement of expenses from such
Subsidiary. Notwithstanding any other provision of this Agreement to the contrary, (i) Indemnitee
shall have no obligation to reduce, offset, allocate, pursue or apportion any indemnification,
advancement, contribution or insurance coverage among multiple parties possessing such duties to
Indemnitee prior to the Corporation’s satisfaction and performance of all its obligations under
this Agreement, and (ii) the Corporation shall perform fully its obligations under this Agreement
without regard to whether Indemnitee holds, may pursue or has pursued any indemnification,
advancement, contribution or insurance coverage rights against any person or entity other than the
Corporation.
15. Duration of Agreement. All agreements and obligations of the Corporation
contained herein shall continue during the period Indemnitee serves in a Covered Capacity continue
and survive thereafter, regardless of the termination of Indemnitee’s service in a Covered
Capacity, so long as Indemnitee shall be subject to any possible Proceeding (including any rights
of appeal thereto and any Proceeding commenced by Indemnitee pursuant to Section 11 of this
Agreement) by reason of serving in a Covered Capacity, whether or not he is acting in any Covered
Capacity at the time any liability or expense is incurred for which other rights exist under this
Agreement.
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, paragraph or sentence 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, paragraph or sentence 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.
15
17. Enforcement and Binding Effect.
(a) The Corporation expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to encourage Indemnitee to continue to serve
as a director and of the Corporation, and the Corporation acknowledges that Indemnitee is relying
upon this Agreement in serving.
(b) Subject to Section 14(a), 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 rights to be indemnified and to receive contribution and advancement of Expenses
provided by or granted Indemnitee pursuant to this Agreement shall apply to Indemnitee’s service as
an officer, director, employee or agent of the Corporation prior to the date of this Agreement.
(d) The rights to indemnification, contribution and advancement of Expenses provided by or
granted pursuant to this Agreement (i) shall be binding upon, be enforceable by, and inure to the
benefit of the parties hereto and their respective successors and assigns, including any direct or
indirect successor by purchase, merger, consolidation, reorganization or otherwise to all or
substantially all of the business or assets of the Corporation (and such successor will thereafter
be deemed the “Corporation” for purposes of this Agreement); (ii) shall continue as to an
Indemnitee who has ceased to serve in a Covered Capacity; and (iii) shall be enforceable by and
inure to the benefit of Indemnitee and his or her spouse, assigns, estate, heirs, devisees,
executors and administrators and other legal representatives.
(e) The Corporation shall require and cause any successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise) to all, substantially all or a
substantial part, of the business and/or assets of the Corporation, by written agreement in the
form and substance reasonably satisfactory to Indemnitee and his or her counsel, expressly to
assume and agree to perform this Agreement in the same manner and to the same extent the
Corporation would be required to perform if no such succession had taken place.
(f) The Corporation and Indemnitee agree herein that a monetary remedy for breach of this
Agreement, at some later date, may be inadequate, impracticable and difficult of proof, and further
agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto agree
that Indemnitee may enforce this Agreement by seeking, among other things, injunctive relief and/or
specific performance hereof, without any necessity of showing actual damage or irreparable harm and
that by seeking injunctive relief and/or specific performance, Indemnitee shall not be precluded
from seeking or obtaining any other relief to which he may be entitled. The Corporation and
Indemnitee further agree that Indemnitee shall be entitled to such specific performance and
injunctive relief, including temporary restraining orders, preliminary injunctions and permanent
injunctions, without the necessity of posting bonds or other undertaking in connection therewith.
The Corporation acknowledges that in the absence of a waiver, a bond or undertaking may be required
of Indemnitee by the Delaware Court, and the Corporation hereby waives any such requirement of such
a bond or undertaking.
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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.
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 Corporation.
(b) If to the Corporation to:
Bowater Incorporated
00 Xxxx Xxxxxxxxxx Xxx
P.O. Box 1028
Greenville, South Carolina 29602-1028
Attn.: General Counsel
00 Xxxx Xxxxxxxxxx Xxx
P.O. Box 1028
Greenville, South Carolina 29602-1028
Attn.: General Counsel
or to any other address as may have been furnished to Indemnitee in writing by the Corporation.
20. 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 11(a) of this Agreement, the
Corporation and Indemnitee hereby irrevocably and unconditionally: (a) agree that any action or
proceeding arising out of or in connection with this Agreement shall be brought only in 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; (b) 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;
(c) appoint irrevocably, to the extent such party is not a resident of the State of Delaware,
Xxxxxx & Xxxxxx LLP, 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 as its agent in the
State of Delaware as such party’s agent for acceptance of legal process in connection with any such
action or proceeding against such party with the same legal force and validity as if served upon
such party personally within the State of Delaware; (d) waive any objection to the laying of venue
of any such action or proceeding in the Delaware Court; and (e) 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, or is subject (in whole or in part) to a jury trial
21. 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.
17
22. Period Of Limitations. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Corporation against Indemnitee, Indemnitee’s spouse,
heirs, executors or personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, and any claim or cause of action of the Corporation shall
be extinguished and deemed released unless asserted by the timely filing of a legal action within
such two-year period; provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action such shorter period shall govern.
23. Additional Acts. If for the validation of any of the provisions in this Agreement
any act, resolution, approval or other procedure is required, the Corporation undertakes to cause
such act, resolution, approval or other procedure to be affected or adopted in a manner that will
enable the Corporation to fulfill its obligations under this Agreement.
24. Headings. The headings of the sections and 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.
| BOWATER INCORPORATED | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| INDEMNITEE | ||||||
| By: | ||||||
| Printed Name: | ||||||
| Title: | ||||||
| Address: | ||||||
19
Exhibit A
UNDERTAKING
Reference is made to that certain Indemnification Agreement between Bowater Incorporated, a
Delaware corporation (the “Corporation”), and the Indemnitee dated as of January ___, 2007 (the
“Indemnification Agreement”).
In regard to any advancements made by the Corporation to the Indemnitee pursuant to the terms
of the Indemnification Agreement, the Indemnitee hereby undertakes and agrees to repay to the
Corporation any and all amounts so paid promptly and in any event within thirty (30) days after the
disposition, including exhaustion of all appeals therefrom, of any litigation or threatened
litigation on account of which advancements were made if it is determined that the Indemnitee is
not entitled to indemnification pursuant to the Indemnification Agreement.
| INDEMNITEE | ||||||
| By: | ||||||
| Printed Name: | ||||||
| Title: | ||||||
| Address: | ||||||
A-1
