FORM OF AMENDED AND RESTATED INDEMNITY AGREEMENT
EXHIBIT 10.47
FORM OF AMENDED AND RESTATED INDEMNITY AGREEMENT
This Amended and Restated Indemnity Agreement (this “Agreement”) is entered into on
, 200_, by and between XXXX CORPORATION, a Delaware corporation (the “Company”), and
(“Indemnitee”) and amends and restates, in its entirety, the Indemnity Agreement
dated August 3, 2005 by and between the Company and Indemnitee.
RECITALS
WHEREAS, the Company’s Amended and Restated Certificate of Incorporation (the “Charter”)
requires indemnification of the Company’s directors and permits indemnification of the Company’s
officers to the fullest extent permitted by law; the Company’s Bylaws (the “Bylaws”) require
indemnification of the Company’s officers and directors if such officers and/or directors, as the
case may be, meet the applicable standard of conduct under the circumstances; and Indemnitee may
also be entitled to indemnification pursuant to the Delaware General Corporation Law (the “DGCL”).
WHEREAS, the Charter, Bylaws and the DGCL expressly provide that the indemnification
provisions set forth therein are not exclusive, and thereby contemplate that contracts may be
entered into between the Company and members of the Board of Directors of the Company (the “Board”)
and officers of the Company with respect to indemnification, hold harmless, exoneration,
advancement of expenses and reimbursement rights.
WHEREAS, the statutes and judicial decisions regarding the duties of directors and officers
are often difficult to apply, ambiguous, or conflicting, and therefore fail to provide such
directors and officers with adequate, reliable knowledge of legal risks to which they are exposed
or information regarding the proper course of action to take.
WHEREAS, directors and officers of companies and other business enterprises are being
increasingly subjected to expensive and time-consuming litigation relating to, among other things,
matters that traditionally would have been brought only against the Company or business enterprise
itself.
WHEREAS, plaintiffs often seek damages in such large amounts and the costs of litigation may
be so great (whether or not the case is meritorious), that the defense and/or settlement of such
litigation is usually beyond the personal resources of directors and officers.
WHEREAS, the uncertainties relating to insurance and to indemnification have increased the
difficulty of attracting and retaining such persons.
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining
such persons is detrimental to the best interests of the Company and its stockholders and that the
Company should act to assure such persons that there will be increased certainty of such protection
in the future.
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, hold harmless, exonerate and to advance expenses on behalf of, such persons to
the fullest extent permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so protected against such liabilities.
WHEREAS, this Agreement is a supplement to, and in furtherance of, the Charter and Bylaws (and
any resolutions adopted pursuant thereto) and any insurance purchased by the Company with respect
to the matters set forth in this Agreement, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder.
WHEREAS, Indemnitee may not be willing to serve as an officer or director without adequate
protection, and the Company desires Indemnitee to serve in such capacity. Indemnitee is willing to
serve, continue to serve and to take on additional service for or on behalf of the Company on the
condition that he or she be so indemnified by the Company.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
1. Services to the Company. Indemnitee will serve or continue to serve, at the will
of the Company, as an officer or director of the Company for so long as Indemnitee is duly elected
or appointed or until Indemnitee tenders his or her resignation.
2. Definitions. As used in this Agreement:
(a) “Affiliated Entity” means, with respect to Indemnitee, an entity or person (i) for which
Indemnitee serves as a director, managing director, officer, trustee, general partner or in any
other similar capacity, (ii) that controls, is controlled by, or is under common control with
Indemnitee or any Affiliated Entity or (iii) that is an immediate family member of Indemnitee.
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of an entity, whether through the ownership of voting
securities, by contract or otherwise. “Immediate family member” of Indemnitee includes
Indemnitee’s spouse (whether or not such person resides with Indemnitee), parents, stepparents,
children, stepchildren, siblings, mothers and fathers-in-law, sons and daughters-in-law, and
brothers and sisters-in-law and any other person (other than a tenant or employee) sharing
Indemnitee’s household.
(b) “Beneficial Owner” and “Beneficial Ownership” shall have the meaning given to such term in
Rule 13d-3 under the Exchange Act.
(c) A “Change in Control” shall be deemed to occur as of the first day any one or more of the
following events occur:
(i) Any Person becomes the Beneficial Owner, directly or indirectly, of
securities of the Company representing more than twenty-five percent (25%) of the
combined voting power of the Company’s then outstanding securities.
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(ii) During any period of twenty-six (26) consecutive months (not including any
period prior to the execution of this Agreement), individuals who at the beginning
of that period constitute the Board cease for any reason (other than death,
disability or voluntary retirement) to constitute a majority of the Board. For this
purpose, any new directors whose election by the Board or nomination for election by
the Company’s stockholders was approved by a vote of at least two-thirds of the
directors then still in office, and who either were directors at the beginning of
the period or whose election or nomination for election was so approved, will be
deemed to have been a director at the beginning of any twenty-six (26) month period
under consideration.
(iii) The stockholders of the Company approve: (A) a plan of complete
liquidation or dissolution of the Company; (B) an agreement for the sale or
disposition of all or substantially all the Company’s assets; or (C) a merger,
consolidation or reorganization of the Company with or involving any other
corporation, other than a merger, consolidation or reorganization that would result
in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) at least eighty percent (80%) of the
combined voting power of the voting securities of the Company (or the surviving
entity) outstanding immediately after the merger, consolidation, or reorganization.
provided, however, that a Change in Control shall not be deemed to
result upon the occurrence of the events in (i), (ii) or (iii) above if such events
occurred as a result of any actions taken by, or that were initiated by, an
Affiliated Entity or Affiliated Entities.
(d) “Corporate Status” shall mean the status of a person who is or was a director, officer,
trustee, general partner, managing member, fiduciary, employee or agent of the Company or of any
other Enterprise for which such person is or was serving at the request of the Company.
(f) “Disinterested Director” shall mean a director of the Company who is not and was not a
party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(g) “Enterprise” shall mean the Company, any Subsidiary of the Company and any other
corporation, constituent corporation (including any constituent of a constituent) absorbed in a
consolidation or merger to which the Company (or any of its wholly owned subsidiaries) is a party,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise of which Indemnitee is or was serving at the request of the Company as a director,
officer, trustee, general partner, managing member, employee, agent or fiduciary.
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(h) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(i) “Expenses” shall include all reasonable direct and indirect costs, fees and expenses of
any type or nature, including, without limitation, all reasonable attorneys’ fees and costs,
retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, fees of
private investigators and professional advisors, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, fax transmission charges, secretarial services
and all other disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a
witness in, settlement or appeal of, or otherwise participating in, a Proceeding. Expenses also
shall include Expenses incurred in connection with any appeal resulting from any Proceeding,
including without limitation the premium, security for, and other costs relating to any cost bond,
supersedeas bond, or other appeal bond or its equivalent. Expenses, however, shall not include
amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(j) “Independent Counsel” shall mean a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is, nor in the past five years has
been, retained to represent: (i) the Company, Indemnitee or any Affiliated Entity in any matter
material to such party (other than with respect to matters concerning the Indemnitee under this
Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other
party to the Proceeding giving rise to a claim for indemnification, hold harmless or exoneration
hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any
person who, under the applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
(k) “Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange
Act as in effect on the date hereof; provided, however, that Person shall exclude (i) the Company;
(ii) any trustee or other fiduciary holding securities under an employee benefit plan of the
Company; and (iii) any corporation owned, directly or indirectly, by the Company’s stockholders in
substantially the same proportion as their ownership of stock of the Company.
(l) “Proceeding” shall include any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing, appeal or
any other actual, threatened or completed proceeding, whether brought in the right of the Company
or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal,
administrative or investigative nature, in which Indemnitee was, is or will be involved as a party
or otherwise by reason of the fact that Indemnitee is or was a director or officer of the Company,
by reason of any action (or failure to act) taken by him or her or of any action (or failure to
act) on his or her part while acting as a director or officer of the Company, or by reason of the
fact that he or she is or was serving at the request of the Company as a director, officer,
trustee, general partner, managing member, fiduciary, employee or agent of any other Enterprise, in
each case whether or not serving in such capacity at the time any liability or expense is incurred
for which indemnification, holding harmless, exoneration, reimbursement, or advancement of expenses
can be provided under this Agreement.
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(m) “Subsidiary” shall mean, with respect to any Person, any corporation or other entity of
which a majority of the voting power of the voting equity securities or equity interests is owned,
directly or indirectly, by that Person.
(n) (i) References to “fines” shall include any excise tax assessed on Indemnitee with respect
to any employee benefit plan; (ii) references to “serving at the request of the Company” shall
include any service as a director, officer, employee, agent or fiduciary of the Company which
imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary
with respect to an employee benefit plan, its participants or beneficiaries; (iii) none of the
Company’s directors or officers who serves as a director, officer, trustee, general partner,
managing member, fiduciary, employee or agent for an entity, other than the Company or its
Subsidiaries or affiliated entities (including employee benefit plans), shall be deemed to be
“serving at the request of the Company” for purposes of this Agreement without an express
authorizing resolution adopted by the Board or a committee thereof; and (iv) If Indemnitee acted in
good faith and in a manner he or she reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have
acted in a manner “not opposed to the best interests of the Company” as referred to in this
Agreement.
3. Indemnity in Third-Party Proceedings. The Company shall indemnify, hold harmless
and exonerate Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or
is threatened to be made, a party to or a participant (as a witness or otherwise) in any
Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its
favor. Pursuant to this Section 3, Indemnitee shall be indemnified, held harmless and exonerated
against all Expenses, judgments, liabilities, fines and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in connection with or in respect of such
Expenses, judgments, fines and amounts paid in settlement) actually and reasonably incurred by
Indemnitee or on his or her behalf in connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Company and, in the case of a criminal Proceeding had
no reasonable cause to believe that his or her conduct was unlawful.
4. Indemnity in Proceedings by or in the Right of the Company. The Company shall
indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section
4 if Indemnitee is, or is threatened to be made, a party to or a participant (as a witness or
otherwise) in any Proceeding by or in the right of the Company to procure a judgment in its favor.
Pursuant to this Section 4, Indemnitee shall be indemnified, held harmless and exonerated against
all Expenses, judgments, liabilities, fines and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or in respect of such Expenses,
judgments, fines and amounts paid in settlement), actually and reasonably incurred by him or her
on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if
Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Company. No indemnification, hold harmless or exoneration for
Expenses, judgments, liabilities, fines and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or in respect of such Expenses,
judgments, fines and amounts paid in settlement) shall be made under this
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Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been
finally adjudged by a court to be liable to the Company, unless and only to the extent that any
court in which the Proceeding was brought, or the Delaware Court, shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to such indemnification, hold harmless and exoneration
rights.
5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provisions of this Agreement, to the extent that Indemnitee is a party to
(or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in
defense of any claim, issue or matter therein, in whole or in part, the Company shall indemnify,
hold harmless and exonerate Indemnitee against all Expenses, liabilities, fines and amounts paid in
settlement (including all interest, assessments and other charges paid or payable in connection
with or in respect of such Expenses, fines and amounts paid in settlement) actually and reasonably
incurred by him or her in connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify, hold harmless and
exonerate Indemnitee against all Expenses, liabilities, fines and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in connection with or in
respect of such Expenses, fines and amounts paid in settlement) actually and reasonably incurred
by him or her or on his or her behalf in connection with each successfully resolved claim, issue or
matter. If the Indemnitee is not wholly successful in such Proceeding, the Company also shall
indemnify, hold harmless and exonerate Indemnitee against all Expenses, liabilities, fines and
amounts paid in settlement (including all interest, assessments and other charges paid or payable
in connection with or in respect of such Expenses, fines and amounts paid in settlement) actually
and reasonably incurred in connection with a claim, issue or matter related to any claim, issue, or
matter on which the Indemnitee was successful. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with
or without prejudice, by reason of settlement, judgment, order or otherwise, shall be deemed to be
a successful result as to such claim, issue or matter so long as there has been no finding that
Indemnitee (i) did not act in good faith, or (ii) did not act in a manner reasonably believed to be
in or not opposed to the best interests of the Company, or (iii) with respect to any criminal
proceeding, had reasonable grounds to believe that his or her conduct was unlawful.
6. Indemnification For Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a
witness in any Proceeding to which Indemnitee is not a party, he or she shall be indemnified, held
harmless and exonerated against all Expenses actually and reasonably incurred by him or her or on
his or her behalf in connection therewith.
7. Additional Indemnification, Hold Harmless and Exoneration Rights.
(a) Notwithstanding any limitation in Sections 3, 4, or 5, the Company shall indemnify, hold
harmless and exonerate Indemnitee to the fullest extent permitted by law if Indemnitee is a party
to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right of
the Company to procure a judgment in its favor) against all Expenses, judgments, fines, penalties
and amounts paid in settlement (including all interest,
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assessments and other charges paid or payable in connection with or in respect of such
Expenses, judgments, fines, penalties and amounts paid or payable) actually and reasonably incurred
by Indemnitee in connection with the Proceeding.
(b) For purposes of Section 7(a), the meaning of the phrase “to the fullest extent permitted
by law” shall include, but not be limited to:
(i) to the fullest extent permitted by the provision of the DGCL that
authorizes or contemplates additional indemnification by agreement, or the
corresponding provision of any amendment to or replacement of the DGCL, and
(ii) to the fullest extent authorized or permitted by any amendments to or
replacements of the DGCL adopted after the date of this Agreement that increase the
extent to which a corporation may indemnify, hold harmless or exonerate its officers
and directors.
8. Exclusions. Notwithstanding any provision in this Agreement, the Company shall not
be obligated under this Agreement to make any indemnification, hold harmless or exoneration payment
in connection with any claim made against Indemnitee:
(a) for which payment has actually been received by or on behalf of Indemnitee under any
insurance policy or other indemnity provision, except with respect to any excess beyond the amount
actually received under any insurance policy, contract, agreement or other indemnity provision or
otherwise; or
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or
similar provisions of state statutory law or common law; or
(c) prior to a Change in Control, in connection with any Proceeding (or any part of any
Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding)
initiated by Indemnitee against the Company or its directors, officers, employees or other
indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior
to its initiation or (ii) the Company provides the indemnification, hold harmless or exoneration
payment in its sole discretion, pursuant to the powers vested in the Company under applicable law.
9. Advances of Expenses; Defense of Claim.
(a) Notwithstanding any provision of this Agreement to the contrary, and to the fullest extent
permitted by applicable law, the Company shall advance the Expenses incurred by Indemnitee in
connection with any Proceeding as soon as practicable, but in any event, within thirty (30) days
after the receipt by the Company of a statement or statements requesting such advances from time to
time, whether prior to or after final disposition of any Proceeding. Advances shall be unsecured
and interest free. Advances shall be made without regard to Indemnitee’s ability to repay the
Expenses and without regard to Indemnitee’s ultimate entitlement to be indemnified, held harmless
or exonerated under the other provisions of this Agreement. Advances shall include any and all
reasonable Expenses incurred pursuing a
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Proceeding to enforce this right of advancement, including Expenses incurred preparing and
forwarding statements to the Company to support the advances claimed. The Indemnitee shall qualify
for advances, to the fullest extent permitted by applicable law, solely upon the execution and
delivery to the Company of an undertaking providing that the Indemnitee undertakes to repay the
advance to the extent that it is ultimately determined that Indemnitee is not entitled to be
indemnified, held harmless or exonerated by the Company under the provisions of this Agreement, the
Charter or Bylaws, applicable law or otherwise. This Section 9(a) shall not apply to any claim
made by Indemnitee for which indemnification, hold harmless or exoneration payment is excluded
pursuant to Section 8.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
(c) The Company shall not settle any action, claim or Proceeding (in whole or in part) which
would impose any Expense, judgment, fine, penalty or limitation on the Indemnitee without the
Indemnitee’s prior written consent.
10. Procedure for Notification and Application for Indemnification.
(a) Within sixty (60) days after being served with any summons, citation, subpoena, complaint,
indictment, inquiry, information or other document relating to any Proceeding or matter which may
be subject to indemnification, hold harmless or exoneration rights under this Agreement, or
advancement of Expenses covered hereby, Indemnitee shall submit to the Company a written notice
identifying the Proceeding. The omission by the Indemnitee to notify the Company will not relieve
the Company from any liability which it may have to Indemnitee (i) otherwise than under this
Agreement, and (ii) under this Agreement unless and only to the extent the Company can establish
that such omission to notify resulted in actual prejudice to the Company.
(b) Indemnitee may thereafter deliver to the Company a written application to indemnify, hold
harmless and exonerate Indemnitee in accordance with this Agreement. Such application(s) may be
delivered from time to time and at such time(s) as Indemnitee deems appropriate in his or her sole
discretion. Following such a written application for indemnification by Indemnitee, the
Indemnitee’s entitlement to such indemnification shall be determined according to Section 11(a) of
this Agreement.
11. Procedure Upon Application for Indemnification.
(a) A determination, if required by applicable law, with respect to Indemnitee’s entitlement
to indemnification shall be made in the specific case by one of the following methods, which shall
be at the election of Indemnitee: (i) by a majority vote of the Disinterested Directors, even
though less than a quorum of the Board, or (ii) by Independent Counsel in a written opinion to the
Board, a copy of which shall be delivered to Indemnitee. The Company promptly will advise
Indemnitee in writing with respect to any determination that
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Indemnitee is or is not entitled to indemnification, including a description of any reason or
basis for which indemnification has been denied. If it is so determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made as soon as practicable, but in no
event more than thirty (30) days, after such determination. Indemnitee shall reasonably cooperate
with the person, persons or entity making such determination with respect to Indemnitee’s
entitlement to indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary
to such determination. Any costs or Expenses (including attorneys’ fees and disbursements)
incurred by Indemnitee in so cooperating with the person, persons or entity making such
determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby indemnifies, exonerates and agrees to hold
Indemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 11(a) hereof, the Independent Counsel shall be selected as
provided in this Section 11(b). Indemnitee shall select the Independent Counsel and shall give
written notice to the Company advising it of the identity of the Independent Counsel so selected
and certifying that the Independent Counsel so selected meets the requirements of “Independent
Counsel” as defined in Section 2 of this Agreement. The Company may, within thirty (30) days after
such written notice of selection shall have been received, deliver to Indemnitee a written
objection to such selection; provided, however, that such objection may be asserted
only on the ground that the Independent Counsel so selected does not meet the requirements of
“Independent Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth
with particularity the factual basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and
until such objection is withdrawn or a court of competent jurisdiction has determined that such
objection is without merit. If, within forty-five (45) days after submission by Indemnitee of a
written request for indemnification pursuant to Section 10(a) hereof, no Independent Counsel shall
have been selected and not objected to, either the Company or Indemnitee may petition a court of
competent jurisdiction for resolution of any objection which shall have been made by the Company to
Indemnitee’s selection of Independent Counsel and/or for the appointment as Independent Counsel of
a person selected by the Court or by such other person as the Court shall designate, and the person
with respect to whom all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 11(a) hereof. Upon the due commencement of any judicial
proceeding or arbitration pursuant to Section 13(a) of this Agreement, Independent Counsel shall be
discharged and relieved of any further responsibility in such capacity (subject to the applicable
standards of professional conduct then prevailing).
(c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to
fully indemnify, hold harmless and exonerate such Independent Counsel against any and all Expenses,
claims, liabilities and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
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12. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the
person, persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 10(a) of this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons or entity of any
determination contrary to that presumption. Neither the failure of the Company (including by its
directors or independent legal counsel) to have made a determination prior to the commencement of
any action pursuant to this Agreement that indemnification is proper in the circumstances because
Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company
(including by its directors or independent legal counsel) that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a presumption that
Indemnitee has not met the applicable standard of conduct.
(b) If the person, persons or entity empowered or selected under Section 11 of this Agreement
to determine whether Indemnitee is entitled to indemnification shall not have made a determination
within ninety (90) days after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially
misleading, in connection with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law as set forth in a final judicial determination; provided,
however, that such 90-day period may be extended for a reasonable time, not to exceed an additional
thirty (30) days, if the person, persons or entity making the determination with respect to
entitlement to indemnification in good faith requires such additional time for the obtaining or
evaluating of documentation and/or information relating thereto.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee
did not meet any particular standard of conduct, did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the Company or, with
respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her
conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted
in good faith and in a manner which he or she reasonably believed to be in or not opposed to the
best interests of the Company if Indemnitee’s action is based on the records or books of account of
the Enterprise, including financial statements, or on information, opinions, reports or statements
supplied to Indemnitee by the directors or officers of the Enterprise in the course of their
duties, or on the advice of legal counsel for the Enterprise or on information or records given or
reports made to the Enterprise by an independent certified public accountant, investment banker or
by an appraiser or other expert selected with the reasonable care by the Enterprise. The
provisions of this Section 12(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found
to have met the applicable standard of conduct set forth in this Agreement.
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(e) The knowledge and/or actions, or failure to act, of any other director, officer, trustee,
partner, managing member, fiduciary, agent or employee of the Enterprise shall not be imputed to
Indemnitee for purposes of determining the right to indemnification under this Agreement.
13. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 11 of this Agreement
that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of
Expenses, to the fullest extent permitted by law, is not timely made pursuant to Section 9 of this
Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant
to Section 11(a) of this Agreement within ninety (90) days after receipt by the Company of the
request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5, 6,
7 or the last sentence of Section 11(a) of this Agreement within thirty (30) days after receipt by
the Company of a written request therefor, or (v) payment of indemnification pursuant to Section 3
or 4 of this Agreement is not made within thirty (30) days after a determination has been made that
Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication by the
Delaware Court of his or her entitlement to such indemnification, hold harmless, exoneration or
advancement of Expenses rights. Alternatively, Indemnitee, at his or her option, may seek an award
in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules
of the American Arbitration Association. Except as set forth herein, the provisions of Delaware
law (without regard to its conflicts of laws rules) shall apply to any such arbitration. The
Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant to Section 11(a) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 13 shall be conducted in all respects as a
de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced
by reason of that adverse determination. In any judicial proceeding or arbitration commenced
pursuant to this Section 13 the Company shall have the burden of proving Indemnitee is not entitled
to be indemnified, held harmless, exonerated or to receive advancement of Expenses, as the case may
be, and the Company may not refer to or introduce into evidence any determination pursuant to
Section 11(a) of this Agreement adverse to Indemnitee for any purpose.
(c) If a determination shall have been made pursuant to Section 11(a) of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 13, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law.
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(d) In the event that Indemnitee, pursuant to this Section 13, seeks a judicial adjudication
of or an award in arbitration to enforce his or her rights under, or to recover
damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the
Company, and shall be indemnified, held harmless and exonerated by the Company against, any and all
Expenses actually and reasonably incurred by him or her in such judicial adjudication or
arbitration. If it shall be determined in said judicial adjudication or arbitration that
Indemnitee is entitled to receive part but not all of the indemnification, hold harmless,
exoneration or advancement of Expenses sought, the Indemnitee shall be entitled to recover from the
Company, and shall be indemnified, held harmless and exonerated by the Company against, any and all
Expenses reasonably incurred by Indemnitee in connection with such judicial adjudication or
arbitration.
(e) The Company shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 13 that the procedures and presumptions of this Agreement are
not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement. The Company shall
indemnify, hold harmless and exonerate Indemnitee to the fullest extent permitted by law against
all Expenses and, if requested by Indemnitee, shall (within thirty (30) days after the Company’s
receipt of a written request therefore) advance to Indemnitee such Expenses which are incurred by
Indemnitee in connection with any judicial proceeding or arbitration brought by Indemnitee (i) to
enforce his or her rights under, or to recover damages for breach of, this Agreement or any other
indemnification, hold harmless, exoneration or advancement agreement or provision of the Charter or
Bylaws, now or hereafter in effect or (ii) for recovery or advances under any insurance policy
maintained by any person or the Company for the benefit of Indemnitee, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification, advancement of Expenses
or insurance recovery, as the case may be.
(f) If the Company fails to pay any amount due to Indemnitee hereunder within the time periods
specified herein, then the Company shall pay to Indemnitee interest on such amount at the prime
rate then in effect for the period commencing with the date on which such amount was required to be
paid hereunder and ending with the date on which such payment is made by the Company to Indemnitee.
14. Security. Notwithstanding anything herein to the contrary, to the extent
requested by Indemnitee and approved by the Board, the Company may at any time and from time to
time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable
bank line of credit, funded trust or other collateral. Any such security, once provided to
Indemnitee, may not be revoked or released without the prior written consent of Indemnitee.
15. Non-exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of Indemnitee to be indemnified, held harmless and exonerated and to
advancement of Expenses as 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 Charter, the
Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No
amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or
restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his or her Corporate Status prior to such amendment, alteration
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or repeal. To the extent that a change in applicable law, whether by statute or judicial
decision, permits greater indemnification, hold harmless or exoneration rights or advancement of
Expenses than would be afforded currently under the Charter, the Bylaws or this Agreement, it is
the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits
so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any
other right or remedy, and every other right and remedy shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, trustees, partners, managing members, fiduciaries,
employees, or agents of the Company or of any 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, trustee,
partner, managing member, fiduciary, officer, employee or agent under such policy or policies. If,
at the time the Company receives notice from any source of a Proceeding as to which Indemnitee is a
party or a participant (as a witness or otherwise), the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of such Proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such Proceeding in accordance with the terms of such 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 of 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’s obligation to indemnify, hold harmless, exonerate or advance Expenses
hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer,
trustee, partner, managing member, fiduciary, employee or agent of any other Enterprise shall be
reduced by any amount Indemnitee has actually received as indemnification, hold harmless or
exoneration payments or advancement of expenses from such other Enterprise.
(e) The DGCL, the Charter and the Bylaws permit the Company to purchase and maintain insurance
or furnish similar protection or make other arrangements including, but not limited to, providing a
trust fund, letter of credit, or surety bond (“Indemnification Arrangements”) on behalf of
Indemnitee against any liability asserted against him or her or incurred by or on behalf of him or
her or in such capacity as a director, officer, employee or agent of the Company, or arising out of
his or her Corporate Status as such, whether or not the Company would have the power to indemnify,
hold harmless or exonerate him or her against such liability under the provisions of this Agreement
or under the DGCL, as it may then be in effect. The purchase, establishment, and maintenance of
any such Indemnification Arrangement shall not in any way limit or affect the rights and
obligations of the Company or of the
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Indemnitee under this Agreement except as expressly provided herein, and the execution and
delivery of this Agreement by the Company and the Indemnitee shall not in any way limit or affect
the rights and obligations of the Company or the other party or parties thereto under any such
Indemnification Arrangement
16. Duration of Agreement. This Agreement shall continue until and terminate upon the
later of: (a) ten (10) years after the date that Indemnitee shall have ceased to serve as a
director or officer, trustee, partner, managing member, fiduciary of the Company or as a director,
officer, employee or agent of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee served at the request of the Company; or (b) one
(1) year after the final termination of any Proceeding (including any appeal thereto) then pending
in respect of which Indemnitee is granted rights of indemnification, hold harmless, exoneration or
advancement of Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to Section
13 of this Agreement relating thereto (including any rights of appeal of any Proceeding described
in Section 13). This Agreement shall be binding upon the Company and its successors and assigns
and shall inure to the benefit of Indemnitee and his or her heirs, executors and administrators.
17. Period of Limitations. No legal action shall be brought and no cause of action
shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs,
executors or personal or legal representatives after the expiration of two (2) years from the date
of accrual of such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action, such shorter period shall govern.
18. Severability. If any provision or provisions of this Agreement shall be held to
be invalid, 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 thereby and shall remain enforceable to the fullest extent permitted by law;
(b) such provision or provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties hereto; and (c) 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 thereby.
19. Additional Acts. If for the validation of any of the provisions in this Agreement
any act, resolution, approval or other procedure is required, the Company undertakes to cause such
act, resolution, approval or other procedure to be affected or adopted in a manner that will enable
the Company to fulfill its obligations under this Agreement.
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20. Enforcement and Binding Effect.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director
or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as a director or officer of the Company.
(b) Without limiting any of the Indemnitee’s rights under the Charter or Bylaws, this
Agreement constitutes the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings, oral, written and implied,
between the parties hereto with respect to the subject matter hereof.
(c) The indemnification, hold harmless, exoneration and advancement of Expenses rights
provided by or granted pursuant to this Agreement shall be binding upon and be enforceable by the
parties hereto and their respective successors and assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or substantially all of the
business or assets of the Company), shall continue as to an Indemnitee who has ceased to be a
director, officer, employee or agent of the Company or of any other Enterprise at the Company’s
request, and shall inure to the benefit of Indemnitee and his or her spouse, assigns, heirs,
devisees, executors and administrators and other legal representatives.
(d) The Company shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all or a substantial part, of the
business and/or assets of the Company, by written agreement in form and substance reasonably
satisfactory to the Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if no such succession
had taken place.
(e) The Company and Indemnitee agree herein that a monetary remedy for breach of this
Agreement, at some later date, may be inadequate, impracticable and difficult of proof, and further
agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto
agree that Indemnitee may enforce this Agreement by seeking, among other things, injunctive relief
and/or specific performance hereof, without any necessity of showing actual damage or irreparable
harm and that by seeking injunctive relief and/or specific performance, Indemnitee shall not be
precluded from seeking or obtaining any other relief to which he or she may be entitled. The
Company and Indemnitee further agree that Indemnitee shall be entitled to such specific performance
and injunctive relief, including temporary restraining orders, preliminary injunctions and
permanent injunctions, without the necessity of posting bonds or other undertaking in connection
therewith. The Company acknowledges that in the absence of a waiver, a bond or undertaking may be
required of Indemnitee by the Court, and the Company hereby waives any such requirement of such a
bond or undertaking.
21. Modification and Waiver. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by 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 of this Agreement nor shall any waiver constitute a continuing waiver.
- 15 -
22. Notices. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given (a) if delivered by
hand and receipted for by the party to whom said notice or other communication shall have been
directed, or (b) if mailed by certified or registered mail with postage prepaid, on the third (3rd)
business day after the date on which it is so mailed:
(a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide in writing to the Company.
(b) If to the Company to Xxxx Corporation, Attention: General Counsel, 00000 Xxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 or to any other address as may have been furnished in writing to
Indemnitee by the Company.
23. Contribution. To the fullest extent permissible under applicable law, if the
indemnification, hold harmless and exoneration rights provided for in this Agreement is unavailable
to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying, holding harmless and
exonerating Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for
judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for
Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in
such proportion as is deemed fair and reasonable in light of all of the circumstances of such
Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as
a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the
relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in
connection with such event(s) and/or transaction(s).
24. Applicable Law and Consent to Jurisdiction. This Agreement and the legal
relations among the parties shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, without regard to its conflict of laws rules. Except with
respect to any arbitration commenced by Indemnitee pursuant to Section 13(a) of this Agreement, the
Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or
proceeding arising out of or in connection with this Agreement shall be brought only in the
Delaware Court, and not in any other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware
Court for purposes of any action or proceeding arising out of or in connection with this Agreement,
(iii) irrevocably appoint, to the extent such party is not a resident of the State of Delaware,
RL&F Service Corp., One Xxxxxx Square, 10th Floor, 10th and King Streets, Wilmington, Delaware
19801 as its agent in the State of Delaware as such party’s agent for acceptance of legal process
in connection with any such action or proceeding against such party with the same legal force and
validity as if served upon such party personally within the State of Delaware, (iv) waive any
objection to the laying of venue of any such action or proceeding in the Delaware Court, and (v)
waive, and agree not to plead or to make, any claim that any such action or proceeding brought in
the Delaware Court has been brought in an improper or inconvenient forum, or is subject, in whole
or in part, to a jury trial.
25. 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.
- 16 -
26. Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of
the feminine pronoun where appropriate. 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.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.
| XXXX CORPORATION | ||||||
| By: | ||||||
| Xxxxxx X. Xxxxxxxxx | ||||||
| Executive Vice President, Secretary and General Counsel | ||||||
| INDEMNITEE | ||||||
| Name: | ||||||
| Title: | ||||||
| Address: | ||||||
