Exhibit 10.19
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INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, made and entered into as of November ___, 1997,
by and between ICON HOLDINGS CORP., a Delaware corporation, and
___________,____________ of ICON Holdings Corp. ("Indemnitee").
RECITALS:
WHEREAS, Indemnitee currently serves as, or is assuming the position of, a
director and/or officer of ICON Holdings Corp. and concurrently therewith,
serves as, or is assuming the position of director and/or officer of any other
corporation which ICON Holdings Corp., directly or indirectly, owns or controls
(collectively, the "Corporation"), the Corporation wishes Indemnitee to continue
in each such capacity;
WHEREAS, the Corporation and Indemnitee recognize that the current state of
the law is too uncertain to provide the Corporation's directors and officers
with adequate and reliable advance knowledge or guidance with respect to the
legal risks and potential liabilities to which they may become personally
exposed as a result of performing their duties for the Corporation;
WHEREAS, The Certificate of Incorporation (the "Articles") and the By-laws
(the "By-laws") of the Corporation each provide that the Corporation may
indemnify, to the fullest extent permitted by law, certain persons, including
directors, officers, employees or agents of the Corporation, against specified
expenses and losses arising out of certain threatened, pending or completed
actions, suits or proceedings;
WHEREAS, Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware GCL") expressly recognizes that the indemnification
provided by the other subsections of Section 145 of the Delaware GCL shall not
be deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office;
WHEREAS, Indemnitee has indicated that he may not be willing to serve, or
continue to serve, as a director and/or officer of the Corporation in the
absence of an indemnification agreement of the Corporation;
WHEREAS, the Board of Directors of the Corporation has concluded that, to
retain and attract talented and experienced individuals to serve as directors
and officers of the Corporation and to encourage such individuals to take the
business risks necessary for the success of the Corporation, it is necessary for
the Corporation to contractually indemnify them, and to assume for itself
liability for expenses and damages in connection with claims against them in
connection with their service to the Corporation, and has further concluded that
the failure to provide such contractual indemnification could result in great
harm to the Corporation and its stockholders; and
WHEREAS, the Board of Directors has recommended to the stockholders of ICON
Holdings Corp. that it is the best interest of both ICON Holdings Corp. and its
stockholders that ICON Holdings Corp. enter into this Agreement, and the
stockholders, by unanimous written consent dated December ___, 1997, have
authorized ICON Holdings Corp. to enter into this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions.
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a. "Expenses" means, for the purposes of this Agreement, all direct and
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indirect costs of any type or nature whatsoever (including, without
limitation, any fees and disbursements of Indemnitee's counsel, accountants
and other experts and other out-of-pocket costs) actually and reasonably
incurred by Indemnitee in connection with the investigation, preparation,
defense or appeal of a Proceeding (as hereinafter defined); provided,
however, that Expenses shall not include judgments, fines, penalties or
amounts paid in settlement of a Proceeding unless such matters may be
indemnified under applicable provisions of the Delaware GCL.
b. "Proceeding" means, for the purposes of this Agreement, any threatened,
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pending or completed action, suit or proceeding whether civil, criminal,
administrative or investigative (including actions, suits or proceedings
brought by or in the right of the Corporation) in which Indemnitee may be
or may have been involved as a party or otherwise, by reason of
Indemnitee's position as a director or officer of the Corporation or by
reason of any action taken by him or of any inaction on his part while
acting as such director or officer, whether or not he is serving in such
capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided under this Agreement.
2. Indemnification.
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a. Third-Party Proceedings. To the fullest extent permitted by law, the
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Corporation shall indemnify Indemnitee and hold him harmless against
Expenses and
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liabilities of any type whatsoever (including without limitation judgments,
fines, penalties, and amounts paid in settlement; provided, that the
settlement is approved in advance by the Corporation) actually and
reasonably incurred by Indemnitee in connection with a Proceeding (other
than a Proceeding by or in the right of the Corporation) if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be
in, or not opposed to, the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe Indemnitee's conduct was unlawful. The termination of any
Proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith and in a manner that
Indemnitee reasonably believed to be in, or not opposed to, the best
interests of the Corporation, or, with respect to any criminal Proceeding,
had reasonable cause to believe that Indemnitee's conduct was unlawful.
Notwithstanding the foregoing, no indemnification shall be made in any
criminal proceeding where Indemnitee has been adjudged guilty unless a
disinterested majority of the directors determines that Indemnitee did not
receive, participate or share in any pecuniary benefit to the detriment of
the Corporation and, in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification for
Expenses or liabilities.
b. Proceedings by or in the Right of the Corporation. To the fullest
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extent permitted by law, the Corporation shall indemnify Indemnitee against
Expenses actually and reasonably incurred by Indemnitee in connection with
the defense or settlement of a Proceeding by or in the right of the
Corporation to procure a judgment in its favor if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in, or not
opposed to, the best interests of the Corporation. Notwithstanding the
foregoing, no indemnification shall be made in respect of any claim, issue
or matter as to which Indemnitee shall have been adjudged to be liable to
the Corporation in the performance of Indemnitee's duty to the Corporation
unless and only to the extent that the court in which such Proceeding is or
was pending shall determine upon application that, in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for Expenses and then only to the extent that the court shall
determine.
c. Scope. Notwithstanding any other provision of this Agreement other
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than Sections 3 and 13, the Corporation shall indemnify Indemnitee to the
fullest extent permitted by law, notwithstanding that such indemnification
is not specifically authorized by other provisions of this Agreement, the
Articles, the By-laws or applicable statute.
3. Limitations on Indemnification. Any other provision herein to the contrary
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notwithstanding, the Corporation shall not be obligated pursuant to the terms of
this Agreement:
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a. Excluded Acts. To indemnify Indemnitee for any acts or omissions or
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transactions from which a director may not be relieved of liability under
Section 102(b)(7) of the Delaware GCL; or
b. Claims Initiated by Indemnitee. To indemnify or advance Expenses to
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Indemnitee with respect to Proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to indemnification
under this Agreement or any other statute or law or otherwise as required
under Section 145 of the Delaware GCL, provided, however, that such
indemnification or advancement of Expenses may be furnished by the
Corporation in specific cases if a majority of the disinterested directors
has approved the initiation or bringing of such suit; or
c. Lack of Good Faith. To indemnify Indemnitee for any Expenses incurred
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by Indemnitee with respect to any proceeding instituted 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 not made in good faith or was frivolous; or
d. Insured Claims. To indemnify Indemnitee for Expenses or liabilities of
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any type whatsoever (including without limitation judgments, fines or
penalties, and amounts paid in settlement) that have been paid directly to
or on behalf of Indemnitee by an insurance carrier under a policy of
directors' and officers' liability insurance maintained by the Corporation
or any other policy of insurance maintained by the Corporation or
Indemnitee; or
e. Claims Under Section 16(b). To indemnify Indemnitee for Expenses and
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the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of
1934, as amended, or any similar successor statute.
4. Determination of Right to Indemnification. Upon receipt of a written claim
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addressed to the Board of Directors for indemnification pursuant to Section 2 of
this Agreement, the Corporation shall determine by any of the methods set forth
in Section 145(d) of the Delaware GCL whether Indemnitee has met the applicable
standards of conduct that make it permissible under applicable law to indemnify
Indemnitee. If a claim under Section 2 of this Agreement is not paid by the
Corporation after such written claim has been received by the Corporation,
Indemnitee may at any time bring suit against the Corporation to recover the
unpaid amount of the claim and, unless such action is dismissed by the court as
frivolous or brought in bad faith, Indemnitee shall be entitled to be paid any
expenses associated with the prosecution of such claim. Neither the failure of
the Corporation (including its Board of Directors, independent legal counsel, or
its stockholders) to make a determination prior to the commencement of such
action that indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct under applicable
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law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that Indemnitee has
not met such applicable standard of conduct, shall create a presumption that
Indemnitee has not met the applicable standard of conduct. The court in which
such action is brought shall determine whether Indemnitee or the Corporation
shall have the burden of proof concerning whether Indemnitee has or has not met
the applicable standard of conduct.
5. Advancement and Repayment of Expenses. The Expenses incurred by Indemnitee
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in defending and investigating any Proceeding shall be paid by the Corporation
prior to the final disposition of such Proceeding within thirty (30) days after
receiving from Indemnitee copies of invoices presented to Indemnitee for such
Expenses and an undertaking by or on behalf of Indemnitee to the Corporation to
repay such amount to the extent it is ultimately determined that Indemnitee is
not entitled to indemnification. In determining whether or not to make an
advance hereunder, the ability of Indemnitee to repay shall not be a factor.
Notwithstanding the foregoing, in a proceeding brought by the Corporation
directly in its own right and not derivatively or by any receiver or trustee,
the Corporation shall not be required to make the advances called for hereby if
a majority of the disinterested directors determine that it does not appear that
Indemnitee has met the standards of conduct that made it permissible under
applicable law to indemnify Indemnitee and that the advancement of Expenses
would not be in the best interests of the Corporation and its stockholders.
6. Partial Indemnification. If Indemnitee is entitled under any provision of
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this Agreement to indemnification or advancement by the Corporation of some or a
portion of any Expenses or liabilities of any type whatsoever (including without
limitation judgments, fines, penalties, and amounts paid in settlement) incurred
by him in the investigation, defense, settlement or appeal of a Proceeding, but
is not entitled to indemnification or advancement of the total amount thereof,
the Corporation shall nevertheless indemnify or pay advancements to Indemnitee
for the portion of such Expenses or liabilities to which Indemnitee is entitled.
7. Notice to Corporation by Indemnitee. Indemnitee shall notify the
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Corporation in writing of any matter with respect to which Indemnitee intends to
seek indemnification hereunder as soon as reasonably practicable following the
receipt by Indemnitee of written notice thereof; provided, however, that any
delay in so notifying Corporation shall not constitute a waiver by Indemnitee of
his rights hereunder. The written notification to the Corporation shall be
addressed to the Board of Directors and shall include a description of the
nature of the Proceeding and the facts underlying the Proceeding and be
accompanied by copies of any documents filed with the court, if any, in which
the Proceeding is pending. In addition, Indemnitee shall give the Corporation
such information and cooperation as it may reasonably require and as shall be
within Indemnitee's power.
8. Defense of Claim. In the event that the Corporation shall be obligated
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under Section 5 hereof to pay the Expenses of any Proceeding against Indemnitee,
the Corporation, if appropriate, shall be entitled to assume the defense of such
Proceeding, with counsel approved by Indemnitee, which approval shall not be
unreasonably withheld, upon the delivery to
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Indemnitee of written notice of its election to do so. After delivery of such
notice, approval of such counsel by Indemnitee and the retention of such counsel
by the Corporation, the Corporation will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by Indemnitee with
respect to the same Proceeding; provided, however, that (i) Indemnitee shall
have the right to employ his own counsel in any such Proceeding at Indemnitee's
expense, and (ii) if (A) the employment of counsel by Indemnitee has been
previously authorized by the Corporation, or (B) Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Corporation and Indemnitee in the conduct of such defense or (C) the Corporation
shall not, in fact, have employed counsel to assume the defense of such
Proceeding, then the fees and expenses of Indemnitee's counsel shall be paid by
the Corporation.
9. Attorneys' Fees. If any legal action is necessary to enforce the terms of
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this Agreement, the prevailing party shall be entitled to recover, in addition
to other amounts to which the prevailing party may be entitled, actual
attorneys' fees and court costs as may be awarded by the court.
10. Continuation of Obligations. All agreements and obligations of the
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Corporation contained herein shall continue during the period Indemnitee is a
director or officer of the Corporation, and shall continue thereafter so long as
Indemnitee shall be subject to any possible Proceeding by reason of the fact
that Indemnitee served in any capacity referred to herein.
11. Successors and Assigns. This Agreement establishes contract rights that
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shall be binding upon, and shall inure to the benefit of, the successors,
assigns, heirs and legal representatives of the parties hereto.
12. Non-Exclusivity.
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a. The provisions for indemnification and advancement of expenses set
forth in this Agreement shall not be deemed to be exclusive of any other
rights that Indemnitee may have under any provision of law, the
Corporation's Certificate of Incorporation or By-laws, the vote of the
Corporation's stockholders or disinterested directors, other agreements or
otherwise, both as to action in his official capacity and action in another
capacity while occupying his position as a director or officer of the
Corporation.
b. In the event of any changes, after the date of this Agreement, in any
applicable law, statute, or rule that expand the right of a Delaware
corporation to indemnify its directors and officers, Indemnitee's rights
and the Corporation's obligations under this Agreement shall be expanded to
the fullest extent permitted by such changes. In the event of any changes
in any applicable law, statute or rule, that narrow the right of a Delaware
corporation to indemnify a director and officer, 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.
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13. Effectiveness of Agreement. This Agreement shall be effective as of the
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date set forth on the first page and may apply to acts or omissions of
Indemnitee that occurred prior to such date if Indemnitee was a director or
officer of the Corporation or its predecessor at the time such act or omission
occurred.
14. Severability. Nothing in this Agreement is intended to require or shall be
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construed as requiring the Corporation to do or fail to do any act in violation
of applicable law. The Corporation's inability, pursuant to court order, to
perform its obligations under this Agreement shall not constitute a breach of
this Agreement. The provisions of this Agreement shall be severable as provided
in this Section 14. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify Indemnitee to the fullest extent
permitted by any applicable portion of this Agreement that shall not have been
invalidated, and the balance of this Agreement not so invalidated shall be
enforceable in accordance with its terms.
15. Governing Law. This Agreement shall be interpreted and enforced in
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accordance with the laws of the State of Delaware without regard to its rules
pertaining to conflicts of laws. To the extent permitted by applicable law, the
parties hereby waive any provisions of law that render any provision of this
Agreement unenforceable in any respect.
16. Notice. All notices, requests, demands and other communications under this
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Agreement shall be in writing and shall be deemed duly given (i) if delivered by
hand and receipted for by the party addressed, on the date of such receipt, or
(ii) if delivered by facsimile transmission to the recipient followed by a copy
sent by mail on the same date as the facsimile transmission, on the date of
receipt of such facsimile transmission, or (iii) if mailed by certified or
registered mail with postage prepaid and return receipt requested, on the third
(3rd) business day after the mailing date. Addresses for notice to either party
are as shown on the signature page of this Agreement, or as subsequently
modified by written notice.
17. Mutual Acknowledgment. Both the Corporation and Indemnitee acknowledge
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that in certain instances, federal law or applicable public policy may prohibit
the Corporation from indemnifying its directors and officers under this
Agreement or otherwise. Indemnitee understands and acknowledges that the
Corporation has undertaken or may be required in the future to undertake with
the Securities and Exchange Commission to submit the question of indemnification
to a court in certain circumstances for a determination of the Corporation's
right under public policy to indemnify Indemnitee.
18. Interpretation; Syntax. The headings of the sections hereof are for
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convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof. All references made and pronouns used herein
shall be construed in the singular or plural, and in such gender, as the sense
and circumstances require.
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19. Counterparts. This Agreement may be executed in two or more counterparts,
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and by different parties hereto on separate counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
20. Amendment and Waiver. This Agreement may be modified or amended only by a
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writing signed by each party hereto. No waiver of any term or provision hereof
shall be effective unless in writing signed by the party waiving such term or
provision.
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WITNESS, the undersigned parties, intending to be legally bound by the
terms hereof, have hereunto set their hands under seal as of the date first
above written.
ICON HOLDINGS CORP.
By:
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Title:
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopier: 914/698-0699
INDEMNITEE:
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Name:
Address:
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