INDEMNIFICATION AGREEMENT
Exhibit
10.5
This
INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of
______________________, 20__ by and between Brunswick Corporation, a Delaware
corporation (the "Corporation"), and _______________________
("Indemnitee").
WHEREAS,
the Corporation is a Delaware corporation;
WHEREAS,
at the request of the Corporation, Indemnitee currently serves as a
director of
the
Corporation and may, therefore, be subjected to claims, suits or proceedings
arising as a result of his service;
WHEREAS,
as an inducement to Indemnitee to continue to serve as a director, the
Corporation has agreed to indemnify Indemnitee against expenses and costs
incurred by Indemnitee in connection with any such claims, suits or proceedings,
to the fullest extent that is lawful; and
WHEREAS,
the parties to this Agreement desire to set forth their agreement regarding
indemnification.
NOW,
THEREFORE, the parties agree as follows:
1.
Acts
and Omissions Covered By This Agreement.
This
Agreement shall cover any act or omission by an Indemnitee which (i) occurs
or
is alleged to have occurred by reason of his being or having been a director,
(ii) occurs or is alleged to have occurred before, during or after the time
when
the Indemnitee served as a director and (iii) gives rise to, or is the direct
or
indirect subject of a claim in any threatened, pending or completed action,
suit
or proceeding at any time or times whether during or after his service as a
director.
2.
Indemnity.
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(a)
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The
Corporation hereby agrees to indemnify, and keep indemnified in accordance
with, and to the fullest extent permitted by the Corporation's charter
and
that is lawful, and regardless of any by-law provision to the contrary,
Indemnitee, from and against any expenses (including attorney's fees),
judgments, fines, taxes, penalties and amounts paid in settlement
actually
and reasonably incurred by Indemnitee in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is
or was a
director of the Corporation or is or was serving at the request of
the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
and
whether or not such action is by or in the right of the Corporation
or
that other corporation, partnership, joint venture, trust or other
enterprise with respect to which the Indemnitee serves or has
served.
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(b)
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Despite
anything to the contrary in subsection (a), the Corporation agrees
to
indemnify Indemnitee in a suit or proceeding initiated by the Indemnitee
only if the Indemnitee acted with the authorization of the Corporation
in
initiating that suit or proceeding. However, an arbitration proceeding
brought under Section 8 shall not be subject to this subsection
(b).
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(c)
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Except
as set forth in Section 5 (Advancement of Expenses), the specific
amounts
that were actually and reasonably incurred shall be indemnified by
the
Corporation in the amount submitted by the Indemnitee unless the
Board of
Directors (the “Board”) determines that the request is unreasonable or
unlawful. If the Board so determines and the Board and the Indemnitee
cannot agree, any disagreement they have shall be resolved by a decision
of the arbitrator in an arbitration proceeding pursuant to Section
8. For
purposes of this Agreement, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include
any
excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the Corporation"
shall
include any service as a director, officer, employee or agent of
the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee
benefit
plan, its participants, or
beneficiaries.
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3. Burden
of Proof.
Indemnitee shall be presumed to be entitled to indemnification for any act
or
omission covered in Section 1 of this Agreement. The burden of proof of
establishing that Indemnitee is not entitled to indemnification because of
the
failure to fulfill some requirement of Delaware law, the Corporation's charter,
by-laws, or this Agreement shall be on the Corporation.
4. Notice
by Indemnitee.
Indemnitee shall notify the 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 threat thereof;
provided,
however,
that
failure to so notify the Corporation shall not constitute a waiver by Indemnitee
of his rights hereunder.
5. Advancement
of Expenses.
In the
event of any action, suit or proceeding against Indemnitee which may give rise
to a right of indemnification from the Corporation pursuant to this Agreement,
following written request to the Corporation by the Indemnitee, the Corporation
shall advance to Indemnitee amounts to cover expenses incurred by Indemnitee
in
defending the action, suit or proceeding in advance of final disposition upon
receipt of (i) an undertaking by or on behalf of the Indemnitee to repay the
amount advanced in the event that it shall be ultimately determined in
accordance with Section 3 of this Agreement that he is not entitled to
indemnification by the Corporation, and (ii) satisfactory evidence as to the
amount of such expenses. Indemnitee's written certification together with a
copy
of the statement paid or to be paid by Indemnitee shall constitute satisfactory
evidence unless determined to the contrary in an arbitration proceeding
conducted pursuant to Section 8 of this Agreement.
6.
Non-Exclusivity
of Right of Indemnification.
The
indemnification rights granted to Indemnitee under this Agreement shall not
be
deemed exclusive of, or in limitation of, any rights to which Indemnitee may
be
entitled under Delaware law, the Corporation's charter or By-laws, any other
agreement, vote of stockholders or directors or otherwise.
7. Termination
of Agreement and Survival of Right of Indemnification.
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(a)
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Subject
to subparagraph (b) of this section, this Agreement shall terminate
when
the Indemnitee's term of office as a director
ends.
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(b)
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The
rights granted to Indemnitee hereunder shall continue after termination
as
provided in Section 1 and shall inure to the benefit of Indemnitee,
his
personal representative, heirs, executors, administrators and
beneficiaries, and this Agreement shall be binding upon the Corporation,
its successors and assigns.
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8. Arbitration
of all Disputes Concerning Entitlement.
Any
controversy or claim arising out of or relating to this Agreement including,
without limitation, the Indemnitee's entitlement to indemnification under this
Agreement, shall be settled by arbitration in the City of Chicago administered
by the American Arbitration Association in accordance with its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator may
be
entered in any court having jurisdiction thereof. Interest on any judgment
shall
be assessed at a rate or rates the arbitrator considers just under the
circumstances. If it is necessary or desirable for the Indemnitee to retain
legal counsel or incur other costs and expenses in connection with enforcement
of his rights under this Agreement, the Corporation shall pay his reasonable
attorneys' fees and costs and expenses in connection with enforcement of his
rights (including the enforcement of any arbitration award in court), regardless
of the final outcome, unless the arbitrator determines that under the
circumstances recovery by the Indemnitee of all or a part of any such fees
and
costs and expenses would be unjust.
9.
Governing
Law.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of Delaware without regard to its choice of law
provisions.
10. Severability.
If any
provision of this Agreement is determined to be invalid or unenforceable, this
invalidity or unenforceability shall not affect the validity or enforceability
of any other provisions of this Agreement, and this Agreement shall be
interpreted as though the invalid or unenforceable provision was not part of
this Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above stated.
BRUNSWICK
CORPORATION
INDEMNITEE
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By:
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Xxxxxxxxx
X. Xxxxx
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[NAME]
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Vice
President, General Counsel
and
Secretary
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Director
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