AGREEMENT
This Agreement, made and entered into as of the 29th day of September, 2000
("Agreement"), by and between AMERICAN HOME PRODUCTS CORPORATION, a Delaware
corporation (the "Company"), and XXXXXXX XXXXXXX ("Indemnitee"):
WHEREAS, the Company has requested that the Indemnitee consent to the entry
of a Consent Decree of Condemnation and Permanent Injunction in certain
litigation consolidated in the United States District Court for the Eastern
District of Tennessee bearing the docket number 3:00-CV-359 (the "Consent
Decree"); and
WHEREAS, the Company has determined that it is reasonable, prudent and
appropriate for the Company to contractually obligate itself to indemnify the
Indemnitee with respect to the Consent Decree on the terms and conditions set
forth herein; and
WHEREAS, Indemnitee is willing to consent to the entry of the Consent
Decree on the condition that he be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
Section 1. Services by Indemnitee. Indemnitee agrees to enter into the
Consent Decree and to use his diligent efforts to comply with the provisions
thereof insofar as they apply to Indemnitee or persons under his supervision.
Section 2. Indemnification. The Company shall indemnify Indemnitee with
respect to any and all liabilities, costs or expenses arising out of the
proceedings resulting in the Consent Decree (and any other litigation, including
without limitation, shareholder derivative suits, related thereto) and the
activities and responsibilities of the Indemnitee to be undertaken therein, in
each case to the fullest extent permitted by applicable law in effect on the
date hereof and to such greater extent as applicable law may thereafter from
time to time permit.
Section 3. Miscellaneous.
(a) The rights of indemnification provided by this Agreement shall not be
deemed exclusive of any other rights to which Indemnitee may at any time be
entitled under applicable law, the Company's Restated Certificate of
Incorporation, the Company's By-Laws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. Unless otherwise agreed to by the parties
hereto, no amendment, alteration or termination of this Agreement or any
provision hereof shall be effective with respect to any action taken or omitted
by the Indemnitee prior to such amendment, alteration or termination.
(b) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers, employees,
agents or fiduciaries of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise which such
person serves at the request of the Company, Indemnitee shall be covered by such
policy or policies in accordance with its or their terms to the maximum extent
of the coverage available for any such director, officer, employee or agent
under such policy or policies.
(c) In the event of any payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery under
any insurance policy or policies maintained by the Company covering the
Indemnitee, who shall execute all papers required and take all action necessary
to secure such rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
(e) This Agreement shall be binding upon the Company and its successors and
assigns and shall inure to the benefit of Indemnitee and his heirs, executors
and administrators.
Section 4. Duration of Agreement. This Agreement shall continue until and
terminate upon the later of: (a) 10 years after the date that Indemnitee shall
have ceased to serve as an employee of the Company, or (b) the final termination
of the Consent Decree and any and all proceedings in respect of which Indemnitee
is entitled to indemnification hereunder.
Section 5. 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.
Section 6. Headings. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
Section 7. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of 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 hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
Section 8. Notice by Indemnitee. Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any proceeding
or matter which may be subject to indemnification covered hereunder.
Section 9. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) 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, to:
Xxxxxxx Xxxxxxx
[Home address]
(b) If to the Company, to:
American Home Products Corporation
Five Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: General Counsel
or such other address as may have been furnished to Indemnitee by the Company or
to the Company by Indemnitee, as the case may be.
Section 10. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the day and year first above written.
AMERICAN HOME PRODUCTS CORPORATION
By: ______________________________________
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Xxxxxxx Xxxxxxx
