Exhibit 10.2
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated September 17, 1996 (the "AGREEMENT"),
between XXXXXX PRODUCTS LTD., a Delaware corporation (the "CORPORATION"), and
Xxxxx X. Xxxxx, an officer of the Corporation (the "the INDEMNITEE").
WHEREAS, the ability to attract and retain competent and experienced
persons to serve as directors and officers of the Corporation is in the best
interests of the Corporation and its stockholders, and the Corporation's
ability to attract and retain such persons will be enhanced by providing both
its current and prospective directors and officers with indemnification
agreements as permitted by Delaware law so that such persons will be willing
to serve or continue to serve the Corporation;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. GENERAL INDEMNIFICATION. It is the intention of the parties
hereto that the Corporation shall be required to indemnify the Indemnitee to
the fullest extent permitted by the law (both statutory and common) of the
State of Delaware as now or hereafter in effect. Therefore, in addition to
the indemnification and advancement of expenses specifically provided elsewhere
herein, the Corporation shall indemnify and hold the Indemnitee harmless in
connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, and
including any action brought by or in the right of the Corporation, to which
the Indemnitee is, was or at any time becomes a party, or is threatened to be
made a party, by reason of the fact that he is or was or has agreed to become
a director, officer, employee or agent of the Corporation, or is or was
serving or has agreed to serve at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any action alleged
to have been taken or omitted in any such capacity, against all costs,
charges, expenses (including attorneys' fees and costs), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, to the fullest extent then permitted by the law (both statutory
and common) of the State of Delaware as now or hereafter in effect,
notwithstanding that such indemnification is not specifically mandated or
authorized by the other provisions of this Agreement, the Corporation's
By-Laws or Certificate of Incorporation or otherwise and notwithstanding that
the legal basis for such indemnification may have arisen subsequent to the
act, occurrence or omission with respect to which indemnification is being
sought.
SECTION 2. THIRD PARTY ACTIONS. The Corporation shall indemnify and hold
the Indemnitee harmless in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation
and covered by Section 3 hereof) to which the Indemnitee is, was or at any
time becomes a party, or is threatened to be made a party, by reason of the
fact that he is or was or has agreed to become a director, officer, employee
or agent of the Corporation, or is or was serving or has agreed to serve at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action alleged to have been taken or omitted in any such
capacity, against all costs, charges, expenses (including attorneys' fees and
costs), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such action,
suit or proceeding and any appeal therefrom, if the Indemnitee acted in good
faith and in a manner he 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 that his conduct was unlawful.
SECTION 3. ACTIONS IN RIGHT OF CORPORATION. The Corporation shall
indemnify and hold the Indemnitee harmless in connection with any threatened,
pending or completed action, suit or proceeding, brought by or in the right
of the Corporation to procure a judgment in the Corporation's favor,
to which the Indemnitee is, was or at any time becomes a party, or is
threatened to be made a party, by reason of the fact that he is or was or has
agreed to become a director, officer, employee or agent of the Corporation,
or is or was serving or has agreed to serve at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in any such capacity, against
all costs, charges and expenses (including attorneys' fees and costs)
actually and reasonably incurred by him or on his behalf in connection with
such action, suit or proceeding and any appeal therefrom, if the Indemnitee
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which the Indemnitee shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action, suit or proceeding was brought
shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such costs, charges and
expenses which the Court of Chancery or such other court shall deem proper.
SECTION 4. PREVAILING PARTY. Notwithstanding anything herein to the
contrary, to the extent that the Indemnitee has been successful, on the merits
or otherwise, including, without limitation, the dismissal of an action
without prejudice, in defense of any action, suit or proceeding referred to
in Sections 2 or 3 hereof, he shall be indemnified against all costs, charges
and expenses (including attorneys' fees and costs) actually and reasonably
incurred by him or on his behalf in connection therewith. In addition, to the
extent that the Indemnitee has been partially successful, on the merits or
otherwise, including, without limitation, the dismissal without prejudice, as
to one or more but less than all claims issues or matters in any action, suit
or proceeding referred to in Sections 2 or 3 hereof, he shall be indemnified
against all costs, charges and expenses (including attorneys' fees and costs)
actually and reasonably incurred by him or on his behalf in connection with
each successfully resolved claim, issue or matter.
SECTION 5. NO PRESUMPTIONS. The termination of any action, suit or
proceeding by judgement, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption
that the Indemnitee did not act in good faith and in a manner which he
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
reasonable cause to believe that his conduct was unlawful.
SECTION 6. ADVANCES; EXPENSES AS WITNESS.
(a) Costs, charges and expenses (including attorneys' fees and costs)
incurred by the Indemnitee in connection with any civil or criminal action,
suit or proceeding (including one brought by or in the right of the
Corporation) which might give rise to a right of indemnification hereunder
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding, provided, however, that the payment of such
costs, charges and expenses (including attorneys' fees and costs) incurred by
the Indemnitee in his capacity as a director or officer (and not in any other
capacity) in advance of the final disposition of such action, suit or
proceeding shall be made only upon receipt of an undertaking by or on behalf
of the Indemnitee to repay all amounts so advanced in the event that it shall
ultimately be determined that the Indemnnitee is not entitled to be
indemnified by the Corporation as authorized in this Agreement. Any
advancement of expenses pursuant to this Agreement shall be made promptly and
in any event within 15 days after receipt of written request therefor from
the Indemnitee, accompanied by any required undertaking.
(b) Notwithstanding any other provision of this Agreement, to the extent
that the Indemnitee is a witness in any action, suit or proceeding referred
to in Sections 2 or 3 and any appeal therefrom to which the Indemnitee is not
a party, the Corporation shall indemnify the Indemnitee against all costs,
charges and expenses (including attorneys' fees and costs) actually or
reasonably incurred by him or on his behalf in connection therewith.
SECTION 7. PROCEDURE.
(a) Any indemnification pursuant to this Agreement (unless ordered by a
court) shall be made by the Corporation promptly and in any event within 45
days after receipt of a written request therefor from the Indemnitee, unless
a determination is made within such 45 day period (i) by the Board of
Directors of the Corporation by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the vote of the holders of a majority of the issued and
outstanding shares of Common Stock of the Company, that indemnification of
the Indemnitee is not proper in the circumstances because he has not met the
applicable standard of conduct.
(b) The right to indemnification or advancement of expenses shall be
enforceable by the Indemnitee in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part (including by failure to
act thereon) within 45 days after receipt of such written request (or, in the
case of advancements, within 15 days), it being the parties' intention that
if the Corporation denies the Indemnitee's request for indemnification, the
question of the Indemnitee's right thereto shall be for the court to decide.
The Indemnitee's costs and expenses incurred in connection with successfully
establishing his right to indemnification and advancements, in whole or in
part, in any such action shall also be indemnified by the Corporation. It
shall be a defense to any such action (other than an action brought to enforce
a claim for advancements where the required undertaking, if any, has been
received by the Corporation) that the Indemnitee has not met the applicable
standard of conduct. The burden of proving such defense shall be on the
Corporation, and there shall be a rebuttable presumption that the Indemnitee
did not fail to meet such applicable standard. Neither the failure of the
Corporation (including its Board of Directors, its independent legal counsel
and its shareholders) to have made a determination prior to the commencement
of such action that indemnification of the Indemnitee is proper in the
circumstances because he has met the applicable standard of conduct, nor the
fact that there has been an actual determination by the Corporation
(including its Board of Directors, its independent legal counsel and its
shareholders) that the Indemnitee has not met such applicable standard of
conduct, shall be a defense or sufficient to rebut such presumption that the
Indemnitee has met the applicable standard of conduct.
SECTION 8. NON-EXCLUSIVITY, ETC. The indemnification and advancement of
expenses provided by this Agreement shall not be deemed exclusive of any
other rights to which the Indemnitee may now or hereafter be entitled under
any present or future law (whether statutory or common), agreement, By-Law,
provision of the Certificate of Incorporation, vote of shareholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in any other capacity while holding office or while
employed by or acting as agent of the Corporation. No amendment or repeal of
any present or future provision in the Corporation's Certificate of
Incorporation or By-Laws authorizing or requiring the indemnification of or
advancements to the Indemnitee in any such capacity, and which amendment or
repeal would diminish the Indemnitee's right of indemnification or to
advancements in any respect under such provision, shall be effective against
the Indemnitee unless he shall consent to such amendment or repeal in a signed
writing or by the Indemnitee's vote as a director or shareholder.
SECTION 9. SURVIVAL
(a) The indemnification and advancement of expenses provisions hereof
shall continue after the Indemnitee has ceased to be a director, officer,
employee or agent of the Corporation and shall inure to the benefit of the
Indemnitee's estate, heirs, executors and administrators.
(b) This Agreement shall be binding on the successors and assigns of
the Corporation including, without limitation, any transferee of all or
substantially all of its assets and any successor by merger, consolidation,
operation of law or otherwise.
SECTION 10. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled
pursuant hereto to indemnification for some or a portion of the expenses,
judgments, fines, penalties or amounts paid in
settlement, actually and reasonably incurred by the Indemnitee but not for the
total amount thereof, the Corporation shall indemnify the Indemnitee for such
portion thereof to which the Indemnitee is entitled.
SECTION 11. EXCEPTIONS. Any other provisions herein to the contrary
notwithstanding, the Corporation shall not be obligated pursuant to the terms
of this Agreement:
(a) To indemnify or advance expenses to the Indemnitee with respect
to proceedings or claims initiated or brought voluntarily by the 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 General Corporation Law, but such indemnification or advancement of
expenses may be provided by the Corporation in specific cases if the Board of
Directors finds it to be appropriate.
(b) To indemnify the Indemnitee for expenses or liabilities of any
type whatsoever (including, but not limited to, judgments, fines or
penalties, and amounts paid in settlement) to the extent that such expenses
or liabilities have been paid directly to the Indemnitee by an insurance
carrier under a policy of officers' and directors' liability insurance
maintained by the Corporation.
(c) To indemnify the Indemnitee in connection with a suit or judgment
rendered for an accounting of profits arising from the purchase and sale by
the Indemnitee of securities pursuant to Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute.
SECTION 12. SEVERABILITY. If this Agreement or any provision hereof
shall be invalidated or held illegal or unenforceable for any reason
whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of
any section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired therby; and
(b) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable,
that is not itself invalid, illegal or unenforceable) shall be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
SECTION 13. MISCELLANEOUS.
(a) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and together which shall constitute one and
the same agreement.
(b) Any headings used herein are used solely for convenience and shall
not be deemed to constitute part of this Agreement or to affect the
construction hereof.
(c) All notices, demands, and other communications hereunder must be in
writing and shall be deemed to have been received if delivered by hand or
mailed by certified or registered mail, postage prepaid, or sent by overnight
or express courier, postage prepaid, to the following persons and addresses:
If to the Corporation:
XXXXXX PRODUCTS LTD.
000 XxXxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
ATTENTION: PRESIDENT
IF TO THE INDEMNITEE: Xxxxx X. Xxxxx
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
or to such other name and address as to which notice shall duly be given in
accordance with the terms hereof.
(d) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delware.
(e) The Indemnitee agrees to promptly notify the Corporation upon being
served with any citation, complaint, indictment or other document that might
reasonably result in indemnification or advancement of expenses hereunder.
However, no failure to provide such notice shall result in the Indemnitee
losing any of his rights hereunder or impose any liability whatsoever on the
Indemnitee.
(f) This Agreement may not be modified or amended except in a writing
signed by both 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 nor shall such waiver constitute a continuing waiver.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
XXXXXX PRODUCTS LTD.
BY:/s/ Xxxxx X. Xxxxxxxxx
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NAME: Xxxxx X. Xxxxxxxxx
TITLE: President & Chief Executive Of
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
