EXHIBIT 10(QQ)
DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, dated as of ___________ (this
"Agreement"), is made by and between Xxxxxxxx Corporation, a New York
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 By-laws (together with the Company's Restated
Certificate of Incorporation, the "Constituent Documents") 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, or at the Company's request to serve another entity in
any capacity, 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 encourage Indemnitee's continued service
to the Company or, at the Company's request, another entity, in an effective
manner, and Indemnitee's reliance on the aforesaid provisions of the Constituent
Documents, 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, disposition or other business combination
transaction relating to the Company), the Company wishes to provide in this
Agreement for the indemnification of Indemnifiable Losses (as defined in Section
1(d)) 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 or the
Indemnitee.
(b) "CLAIM" means any threatened, pending or completed
action, suit or proceeding (whether civil, criminal,
administrative, arbitrative, investigative or
other), whether instituted by the Company or any other party
(including, without limitation, any governmental entity), or any
inquiry or investigation, whether instituted by the Company or
any other party (including, without limitation, any governmental
entity) that Indemnitee in good faith believes might lead to the
institution of any such action, suit or proceeding.
(c) "EXPENSES" includes all attorneys' and experts' fees,
expenses and charges and all other costs, expenses and
obligations paid or incurred in connection with investigating,
defending, or participating (as a party, a witness, or
otherwise) in (including on appeal), or preparing to defend or
participate in, any Claim.
(d) "INDEMNIFIABLE LOSSES" means any and all Expenses,
damages, losses, liabilities, judgments, fines, penalties and
amounts paid or payable 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) 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,
agent or any other capacity 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 New York 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 (but in no case less than the extent permitted
under the laws in effect as of the date hereof) 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 Sections 4 and 18, 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.
3. ADVANCEMENT OF EXPENSES. The Indemnitee's right to
indemnification in Section 2 of this Agreement shall include the right
of Indemnitee to be advanced by the Company any Expenses. If so
requested by Indemnitee, the Company will advance within two business
days of such request any and all Expenses to Indemnitee which Indemnitee
reasonably determines likely to be payable; provided, however, that
Indemnitee will return, without interest, any such advance which remains
unspent at the final conclusion of the Claim to which the advance
related; and provided, further, that, except as provided in Section 18,
all amounts advanced in respect of such Expenses shall be repaid to the
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Company by Indemnitee if it shall ultimately be determined in a final
judgment that Indemnitee is not entitled to be indemnified for such
Expenses.
4. 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
Constituent Documents 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.
5. 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, and the burden of proof shall, to the
extent permitted by law, be on the Company to establish that Indemnitee
is not so entitled.
6. 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.
7. NON-EXCLUSIVITY, ETC. The rights of Indemnitee hereunder will be
in addition to any other rights Indemnitee may have under the
Constituent Documents, 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 which 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 any
of the Constituent Documents the effect of which would be to deny,
diminish or encumber Indemnitee's right to indemnification under this
Agreement or any Other Indemnity Provision.
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8. LIABILITY INSURANCE. To the extent the Company maintains an
insurance policy or policies providing directors' and officers'
liability insurance (the "D&O 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. Notwithstanding the foregoing, the Company shall not be
required to cover the Indemnitee under its D&O Insurance to the same
extent as other directors or officers of the Company, or at all, if the
Company determines in good faith that such insurance is not available,
or the premium costs (or increases in premium costs of other directors
or officers of the Company as a result of such coverage) for such
insurance is materially disproportionate to the amount of coverage
provided.
9. 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).
10. 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 Constituent Documents and
Other Indemnity Provisions or otherwise of the amounts otherwise
indemnifiable hereunder provided that, if Indemnitee for any reason is
required to disgorge any payment actually received by him, the Company
shall be obligated to pay such amount to Indemnitee in accordance with
the other terms of this Agreement (i.e., disregarding the terms of this
Section 10).
11. DEFENSE OF CLAIMS. The Company will be entitled to participate
in the defense (including, without limitation, the negotiation and
approval of any settlement) of any Claim in respect of which Indemnitee
may seek indemnification from the Company hereunder, 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. Notwithstanding the preceding sentence, in any
event the Company shall be liable to Indemnitee under this Agreement for
the reasonable costs of investigation and preparation for the defense of
any Claim (including, without limitation, appearing as a witness and
reasonable fees and expenses of counsel in connection therewith). 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
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party to 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.
12. 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 (a "Successor"), 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 may be assigned to a
Successor, 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 12(a) and 12(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
12(c), the Company will have no liability to pay any amount so
attempted to be assigned or transferred.
13. 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 Secretary 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.
14. 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 New York, without
giving effect to the principles of conflict of laws of such State. Each
party consents to non-exclusive jurisdiction of any New York state or
federal court 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 13.
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15. 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.
16. 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.
17. 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.
18. 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 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. 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.
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19. RIGHT OF INDEMNITEE TO INDEMNIFICATION UPON APPLICATION;
PROCEDURE UPON APPLICATION. Except as provided in Section 3, any
indemnification under this Agreement shall be made as soon as
practicable but in any event no later than 30 days after receipt of the
written request of the Indemnitee for such indemnification (such request
to be accompanied by reasonable supporting documentation of the
Indemnifiable Losses), unless a determination is made within said 30 day
period by (a) the Board by a majority vote of a quorum thereof
consisting of directors who were not parties to such proceedings, or (b)
independent legal counsel in a written opinion (which counsel shall be
appointed if such a quorum is not obtainable), that the Indemnitee has
not met the relevant standards for indemnification set forth in this
Agreement. In the case of either (a) or (b) above, the Company shall
send prompt written notice to the Indemnitee of such determination.
20. 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.
XXXXXXXX CORPORATION
Four Coliseum Centre
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
By:
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Name:
Title:
[name and address]
---------------------------------
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