[Form of]
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "AGREEMENT") is made as of
the day of February, 1994, by and between Millbrook Acquisition Corp., a
Delaware corporation (the "COMPANY"), and the undersigned [Director] [Officer]
of the Company (the "INDEMNITEE").
RECITALS
A. The Indemnitee is currently serving as a [Director]
[Officer] of the Company and the Company wishes the Indemnitee to continue in
such capacity. The Indemnitee is willing, under certain circumstances, to
continue serving as a [Director][Officer] of the Company.
B. The Indemnitee has indicated that he does not regard the
indemnities available under the Company's By-laws as adequate to protect him
against the risks associated with his service to the Company and has noted that
the Company's directors' and officers' liability insurance policy has numerous
exclusions and a deductible and thus does not adequately protect Indemnitee. In
this connection the Company and the Indemnitee now agree they should enter into
this INDEMNIFICATION AGREEMENT in order to provide greater protection to
Indemnitee against such risks of service to the Company.
C. Section 145 of the General Corporation Law of the State of
Delaware, under which law the Company is organized, empowers corporations to
indemnify a person serving as a director, officer, employee or agent of the
corporation and a person who serves at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, and said Section 145 and the By-laws of the
Company specify that the indemnification set forth in said Section 145 and in
the By-laws, respectively, shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any By-law, agreement,
vote of stockholders or disinterested directors or otherwise.
AGREEMENT
In order to induce the Indemnitee to continue to serve as a
[Director][Officer] of the Company and in consideration of his continued
service, the Company hereby agrees to indemnify the Indemnitee as follows:
1. INDEMNITY. The Company will indemnify the
Indemnitee, his executors, administrators or assigns, for any Expenses (as
defined below) which the Indemnitee is or becomes legally obligated to pay in
connection with any Proceeding. As used in this
Agreement the term "Proceeding" shall include any threatened, pending or
completed claim, action, suit or proceeding, whether brought by or in the right
of the Company or otherwise and whether of a civil, criminal, administrative or
investigative nature, in which the Indemnitee may be or may have been involved
as a party or otherwise, by reason of the fact that Indemnitee is or as a
director or officer of the Company, by reason of any actual or alleged error or
misstatement or misleading statement made or suffered by the Indemnitee, by
reason of any action taken by him or of any action on his part while acting as
such director or officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise; provided that in each such case
Indemnitee acted in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Company, and, in the case of a
criminal proceeding, in addition had no reasonable cause to believe that his
conduct was unlawful. As used in this Agreement, the term "other enterprise"
shall include (without limitation) employee benefit plans and administrative
committees thereof, and the term "fines" shall include (without limitation)
employee benefit plans and administrative committees thereof, and the term
"fines" shall include (without limitations) any excise tax assessed with respect
to any employee benefit plan.
2. EXPENSES. As used in this Agreement, the term
"Expenses" shall include, without limitation, damages, judgments, fines,
penalties, settlements and costs, attorneys' fees and disbursements (including
the cost of copying documents, obtaining transcripts and taking depositions) and
costs of attachment or similar bonds, investigations, and any expenses of
establishing a right to indemnification under this Agreement.
3. ENFORCEMENT. If a claim or request under this
Agreement is not paid by the Company, or on its behalf, within twenty days after
a written claim or request has been received by the Company, the Indemnitee may
at any time thereafter bring suit against the Company to recover the unpaid
amount of the claim or request and if successful in whole or in part, the
Indemnitee shall be entitled to be paid also the Expenses of prosecuting such
suit. The Company shall have the right to recoup from the Indemnitee the amount
of any item or items of Expenses theretofore paid by the Company pursuant to
this Agreement, to the extent such Expenses are not reasonable in nature or
amounts; provided, however, that the Company shall have the burden of proving
such Expenses to be unreasonable. The burden of proving that the Indemnitee is
not entitled to indemnification for any other reason shall be upon the Company.
4. SUBROGATION. In the event of payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of the indemnitee, who shall execute all papers
required and shall do everything that may be necessary to secure such rights,
including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
5. EXCLUSIONS. The Company shall not be liable under
this Agreement to pay any Expenses in connection with any claim made against the
Indemnitee:
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(a) to the extent that payment is actually
made to the Indemnitee under a valid, enforceable and
collectible insurance policy;
(b) to the extend that the Indemnitee is
indemnified and actually paid otherwise than pursuant
to this Agreement;
(c) in connection with a judicial action by
or in the right of the Company, in respect of any
claim, issue or matter as to which the Indemnitee
shall have been adjudged to be liable to the Company
unless and only to the extent that any court in which
such action was brought shall determine upon
application that, despite the adjudication of
liability but in view of all the circumstances of the
case, the Indemnitee is fairly and reasonably
entitled to indemnity for such expenses as such court
shall deem proper;
(d) If it is proved by final judgment in a
court of law or other final adjudication to have been
based upon or attributable to the Indemnitee's in
fact having gained any material personal profit or
advantage to which he was not legally entitled (but
excluding any profit or advantage attributable to
Indemnitee solely as a result of stock ownership in
the Company);
(e) for a disgorgement of profits made from
the purchase and sale by the Indemnitee of securities
pursuant to Section 16(b) of the Securities Exchange
Act of 1934 and amendments thereto or similar
provisions of any state statutory law or common law;
(f) brought about or contributed to by the
dishonesty of the Indemnitee seeking payment
hereunder; however, notwithstanding the foregoing,
the Indemnitee shall be protected under this
Agreement as to any claims upon which suit may be
brought against him by reason of any alleged
dishonesty on his part, unless a judgment or other
final adjudication thereof adverse to the Indemnitee
shall establish that he committed (i) acts of active
and deliberate dishonesty, (ii) which actual
dishonest purpose and intent, (iii) which acts were
material to the cause of action so adjudicated; or
(g) where it has been judicially determined
that the Company is prohibited by applicable law or
for any other reason from paying same.
6. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding or in defense of any claim, issue or matter
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therein, including dismissal without prejudice, Indemnitee shall be indemnified
against any and all expenses incurred in connection therewith.
7. PARTIAL INDEMNIFICATION. If the Indemnitee is
entitled under any provision of this Agreement to indemnification by the Company
for some or a portion of Expenses, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify the Indemnitee for the portion
of such Expenses to which the Indemnitee is entitled.
8. ADVANCE OF EXPENSES. Expenses incurred by the
Indemnitee in connection with any Proceeding, except the amount of any
settlement, shall be paid by the Company in advance upon request of the
Indemnitee that the Company pay such Expenses. The Company's obligation to
advance Expenses provided for in the prior sentence shall continue unless and
until it has been determined by judicial adjudication pursuant to this Agreement
that the Indemnitee is not entitled to indemnification. The indemnitee hereby
undertakes to repay to the Company the amount of any Expenses theretofore paid
by the Company to the extent that it is ultimately judicially determined that
such expenses were not reasonable or that the Indemnitee is not entitled to
indemnification. Any such repayment shall be to the extent, but only to the
extent, of Expenses which would not otherwise have been incurred except for the
rights of Indemnitee under this Agreement.
9. APPROVAL OF EXPENSES. No expenses for which
indemnity shall be sought under this Agreement, other than those in respect of
judgments and verdicts actually rendered, shall be incurred without the prior
consent of the Company, which consent shall not be unreasonably withheld, but
the failure of Indemnitee to obtain such consent shall not offset the obligation
of the Company under this agreement to pay all reasonable Expenses.
10. NOTICE OF CLAIM. The Indemnitee, as a condition
precedent to his right to be indemnified under this Agreement,shall give to the
Company notice in writing as soon as practicable of any claim made against him
for which indemnity will or could be sought under this Agreement. Notice to the
Company shall be given at its principal office and shall be directed to the
Corporate Secretary (or such other address as the Company shall designate in
writing to the Indemnitee); notice shall be deemed received if sent by prepaid
mail properly addressed, the date of such notice being the date postmarked. In
addition, the Indemnitee shall give the Company such information and cooperation
as it may reasonably require and as shall be within the Indemnitee's power.
11. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one
instrument.
12. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. Nothing
herein shall be deemed to diminish or otherwise restrict the Indemnitee's right
to indemnification under any provision of the Certificate of Incorporation or
By-laws of the Company and amendments thereto or under law.
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13. GOVERNING LAW. This Agreement shall be governed
by and interpreted and enforced in accordance with the laws of the State of
Delaware, without regard to the rules regarding conflicts of law thereof.
14. SAVING CLAUSES. Wherever there is conflict
between any provision of this Agreement and any applicable present or future
statute, law or regulation contrary to which the Company and the Indemnitee have
no legal right to contract, the latter shall prevail, but in such event the
affected provisions of this Agreement shall be curtailed and restricted only to
the extent necessary to bring them within applicable legal requirements, it
being the intention of the parties to provide the Indemnitee with the fullest
and most effective protection against Expenses as permissible under applicable
law.
15. COVERAGE. The provisions of this Agreement shall
apply with respect to the Indemnitee's service as a [Director] [Officer] of the
Company prior to the date of this Agreement and with respect to all periods of
such service after the date of this Agreement, event though the Indemnitee may
have ceased to be a [Director] [Officer] of the Company.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and signed as of the day and year first above
written.
MILLBROOK ACQUISITION CORP.
By
----------------------------
Name:
Title:
----------------------------
[Name of Officer or Director]
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