Exhibit 10.5
D&O INDEMNIFICATION AGREEMENT
This D&O Indemnification Agreement, dated as of _____________, 2001
(this "Agreement"), is made by and between Technical Consumer Products, Inc., a
Delaware corporation (the "Company"), and __________________ ("Indemnitee").
RECITALS
A. It is important to the Company to attract and retain as directors
and officers the most capable persons reasonably available.
B. Indemnitee is a director and/or officer of the Company.
C. Both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and officers of
companies in today's environment.
D. The Company's Amended and Restated Certificate of Incorporation
("Certificate of Incorporation") provide that the Company will indemnify its
directors and officers 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.
E. 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 to provide Indemnitee with
express contractual indemnification (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 (the "Board") 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 (as
defined in Section 1(c)) 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, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. In addition to terms defined elsewhere herein,
the following terms have the following meanings when used in this Agreement with
initial capital letters:
(a) "AFFILIATE" has the meaning given to that term in Rule 405
under the Securities Act of 1933; PROVIDED, HOWEVER, that for purposes of this
Agreement the Company and its subsidiaries will not be deemed to constitute
Affiliates of Indemnitee.
(b) "CLAIM" means any threatened, pending or completed action, suit
or proceeding, or any inquiry or investigation, whether instituted, made or
conducted by the Company or any other party, including without limitation any
governmental entity, that Indemnitee determines might lead to the institution of
any such action, suit or proceeding, whether civil, criminal, administrative,
arbitrative, investigative or other.
(c) "EXPENSES" includes attorneys' and experts' fees, expenses and
charges and all other costs, expenses and obligations paid or incurred in
connection with investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or participate
in, any Claim.
(d) "INDEMNIFIABLE LOSSES" means any and all Expenses, damages,
losses, liabilities, judgments, fines, penalties 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)
(collectively, "Losses") relating to, resulting from or arising out of any act
or failure to act by the Indemnitee, or his or her status as any person referred
to in clause (i) of this sentence, (i) in his or her capacity as a director,
officer, employee or agent of the Company, any of its Affiliates or any other
entity as to which the Indemnitee is or was serving at the request of the
Company as a director, officer, employee, member, manager, trustee or agent of
another corporation, limited liability company, partnership, joint venture,
trust or other entity or enterprise, whether or not for profit and (ii) in
respect of any business, transaction or other activity of any entity referred to
in clause (i) of this sentence.
2. BASIC INDEMNIFICATION ARRANGEMENT. The Company will indemnify and
hold harmless Indemnitee, to the fullest extent permitted by the laws of the
State of Delaware in effect on the date hereof or as such laws may from time to
time hereafter be amended to increase the scope of such permitted
indemnification, against all Indemnifiable Losses relating to, resulting from or
arising out of any Claim. The failure by Indemnitee to notify the Company of
such Claim will not relieve the Company from any liability hereunder unless, and
only to the extent that, the Company did not otherwise learn of the Claim and
such failure results in forfeiture by the Company of substantial defenses,
rights or insurance coverage. Except as provided in Section 17, however,
Indemnitee will not be entitled to indemnification pursuant to this Agreement in
connection with any Claim initiated by Indemnitee against the Company or any
director or officer of the Company unless the Company has joined in or consented
to the initiation of such Claim. If so requested by Indemnitee, the Company will
advance, within two business days of such request, any and all Expenses to
Indemnitee that Indemnitee determines reasonably likely to be payable; PROVIDED,
HOWEVER, that Indemnitee will return, without interest, any such advance that
remains unspent at the final conclusion of the Claim to which the advance
related.
3. INDEMNIFICATION FOR ADDITIONAL EXPENSES. Without limiting the
generality or effect of the foregoing, the Company will indemnify Indemnitee
against, and, if requested by Indemnitee, will within two business days of such
request advance to Indemnitee, any and all attorneys' fees and other Expenses
paid or incurred by Indemnitee in connection with any Claim asserted or brought
by Indemnitee for (i) indemnification or advance payment of Expenses by the
Company under this Agreement or any other agreement or under any provision of
the Company's Bylaws or Certificate of Incorporation now or hereafter in effect
relating to Claims for Indemnifiable Losses and/or (ii) recovery 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, advance Expense payment or insurance recovery, as the case may
be.
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4. PARTIAL INDEMNITY, ETC. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any Indemnifiable Loss but not for all of the total amount thereof,
the Company will nevertheless indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled. Moreover, notwithstanding any other provision of
this Agreement, to the extent that Indemnitee has been successful on the merits
or otherwise in defense of any or all Claims relating in whole or in part to an
Indemnifiable Loss or in defense of any issue or matter therein, including
without limitation dismissal without prejudice, Indemnitee will be indemnified
against all Expenses incurred in connection therewith. In connection with any
determination as to whether Indemnitee is entitled to be indemnified hereunder,
there will be a presumption that Indemnitee is so entitled, which presumption
the Company may overcome only by its adducing clear and convincing evidence to
the contrary.
5. NO OTHER PRESUMPTION. For purposes of this Agreement, the
termination of any Claim by judgment, order, settlement (whether with or without
court approval) or conviction, or upon a plea of nolo contendere or its
equivalent, will not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law.
6. NON-EXCLUSIVITY, ETC. The rights of Indemnitee hereunder will be in
addition to any other rights Indemnitee may have under the Company's Bylaws or
the Company's Certificate of Incorporation, or the substantive laws of the
Company's jurisdiction of incorporation, any other contract or otherwise
(collectively, "Other Indemnity Provisions"); PROVIDED, HOWEVER, that (i) to the
extent that Indemnitee otherwise would have any greater right to indemnification
under any Other Indemnity Provision, Indemnitee will be deemed to have such
greater right hereunder and (ii) 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, Indemnitee will be
deemed to have such greater right hereunder. The Company will not adopt any
amendment to the Company's Bylaws or the Company's Certificate of Incorporation
the effect of which would be to deny, diminish or encumber Indemnitee's right to
indemnification under this Agreement or any Other Indemnity Provision.
7. LIABILITY INSURANCE AND FUNDING. To the extent the Company maintains
an insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee will be covered by such policy or policies, in accordance
with its or their terms, to the maximum extent of the coverage available for any
director or officer of the Company. The Company may, but will not be required
to, create a trust fund, grant a security interest or use other means, including
without limitation a letter of credit, to ensure the payment of such amounts as
may be necessary to satisfy its obligations to indemnify and advance expenses
pursuant to this Agreement.
8. SUBROGATION. In the event of payment under this Agreement, the
Company will be subrogated to the extent of such payment to all of the related
rights of recovery of Indemnitee against other persons or entities (other than
Indemnitee's successors). The Indemnitee will execute all papers reasonably
required to evidence such rights (all of Indemnitee's reasonable Expenses,
including attorneys' fees and charges, related thereto to be reimbursed by or,
at the option of Indemnitee, advanced by the Company).
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9. NO DUPLICATION OF PAYMENTS. The Company will not be liable under
this Agreement to make any payment in connection with any Indemnifiable Loss
made against Indemnitee to the extent Indemnitee has otherwise actually received
payment (net of Expenses incurred in connection therewith) under any insurance
policy, the Company's Bylaws or the Company's Certificate of Incorporation and
Other Indemnity Provisions or otherwise of the amounts otherwise indemnifiable
hereunder.
10. DEFENSE OF CLAIMS. The Company will be entitled to participate in
the defense of any Claim or to assume the defense thereof, with counsel
reasonably satisfactory to the Indemnitee, provided that in the event that (i)
the use of counsel chosen by the Company to represent Indemnitee would present
such counsel with an actual or potential conflict, (ii) the named parties in any
such Claim (including any impleaded parties) include both the Company and
Indemnitee and Indemnitee shall conclude that there may be one or more legal
defenses available to him or her that are different from or in addition to those
available to the Company, or (iii) any such representation by the Company would
be precluded under the applicable standards of professional conduct then
prevailing, then Indemnitee will be entitled to retain separate counsel (but not
more than one law firm plus, if applicable, local counsel in respect of any
particular Claim) at the Company's expense. The Company will not, without the
prior written consent of the Indemnitee, effect any settlement of any threatened
or pending Claim that the Indemnitee is or could have been a party unless such
settlement solely involves the payment of money and includes an unconditional
release of the Indemnitee from all liability on any claims that are the subject
matter of such Claim.
11. SUCCESSORS AND BINDING AGREEMENT. (a) The Company will require any
successor (whether direct or indirect, by purchase, 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
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 Company would be
required to perform if no such succession had taken place. This Agreement will
be binding upon and inure to the benefit of 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 or delegatable by the Company.
(b) This Agreement will inure to the benefit of and be enforceable
by the Indemnitee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, legatees and other successors.
(c) This Agreement is personal in nature and neither of the parties
hereto will, without the consent of the other, assign or delegate this Agreement
or any rights or obligations hereunder except as expressly provided in Sections
11(a) and 11(b). Without limiting the generality or effect of the foregoing,
Indemnitee's right to receive payments hereunder will not be assignable, whether
by pledge, creation of a security interest or otherwise, other than by a
transfer by the Indemnitee's will or by the laws of descent and distribution,
and, in the event of any attempted assignment or transfer contrary to this
Section 11(c), the Company will have no liability to pay any amount so attempted
to be assigned or transferred.
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12. NOTICES. For all purposes of this Agreement, all communications,
including without limitation notices, consents, requests or approvals, required
or permitted to be given hereunder will be in writing and will be deemed to have
been duly given when hand delivered or dispatched by electronic facsimile
transmission (with receipt thereof orally confirmed), or five business days
after having been mailed by United States registered or certified mail, return
receipt requested, postage prepaid or one business day after having been sent
for next-day delivery by a nationally recognized overnight courier service,
addressed to the Company (to the attention of the Chief Financial Officer of the
Company) and to the Indemnitee at the addresses shown on the signature page
hereto, or to such other address as any party may have furnished to the other in
writing and in accordance herewith, except that notices of changes of address
will be effective only upon receipt.
13. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of the State of Delaware, without giving effect to the
principles of conflict of laws of such State. Each party consents to
non-exclusive jurisdiction of any Delaware state or federal court or any court
in any other jurisdiction in which a Claim is commenced by a third person for
purposes of any action, suit or proceeding hereunder, waives any objection to
venue therein or any defense based on forum non conveniens or similar theories
and agrees that service of process may be effected in any such action, suit or
proceeding by notice given in accordance with Section 12.
14. VALIDITY. If any provision of this Agreement or the application of
any provision hereof to any person or circumstance is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or circumstance will not be
affected, and the provision so held to be invalid, unenforceable or otherwise
illegal will be reformed to the extent, and only to the extent, necessary to
make it enforceable, valid or legal.
15. MISCELLANEOUS. No provision of this Agreement may be waived,
modified or discharged unless such waiver, modification or discharge is agreed
to in writing signed by Indemnitee and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance with
any condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations, oral
or otherwise, expressed or implied with respect to the subject matter hereof
have been made by either party that are not set forth expressly in this
Agreement. References to Sections are to references to Sections of this
Agreement.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which
together will constitute one and the same agreement.
17. LEGAL FEES AND EXPENSES. It is the intent of the Company that the
Indemnitee not be required to incur legal fees and 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. Accordingly, without limiting the generality or effect of
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any other provision hereof, if it should appear to the Indemnitee that the
Company has failed to comply with any of its obligations under this Agreement or
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, the Company irrevocably authorizes the Indemnitee from
time to time to retain counsel of Indemnitee's choice, at the expense of the
Company as hereafter provided, to advise and represent the Indemnitee in
connection with any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation or other legal
action, whether by or against the Company or any director, officer, stockholder
or other person affiliated with the Company, in any jurisdiction.
Notwithstanding any existing or prior attorney-client relationship between the
Company and such counsel, the Company irrevocably consents to the Indemnitee's
entering into an attorney-client relationship with such counsel, and in that
connection the Company and the Indemnitee agree that a confidential relationship
shall exist between the Indemnitee and such counsel. Without respect to whether
the Indemnitee prevails, in whole or in part, in connection with any of the
foregoing, the Company will pay and be solely financially responsible for any
and all attorneys' and related fees and expenses incurred by the Indemnitee in
connection with any of the foregoing.
18. CERTAIN INTERPRETIVE MATTERS. No provision of this Agreement will
be interpreted in favor of, or against, either of the parties hereto by reason
of the extent to which any such party or its counsel participated in the
drafting thereof or by reason of the extent to which any such provision is
inconsistent with any prior draft hereof or thereof.
IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused
its duly authorized representative to execute this Agreement as of the date
first above written.
TECHNICAL CONSUMER PRODUCTS, INC.
000 Xxxx Xxxxx
Xxxxxx, Xxxx 00000
By: ______________________________________
Name: ________________________________
Title: _______________________________
[INDEMNITEE]
[Address]
------------------------------------------
[Indemnitee]
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