EXHIBIT 10.32
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into this ___ day of __________,
2000 between XxxxxxxXxxx.xxx, Inc., a Delaware corporation ("Corporation"),
whose address is 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000 and
__________________ ("Director"), whose address is_____________________________.
RECITALS:
A. WHEREAS, Director, a member of the Board of Directors of
Corporation (the "Board"), performs a valuable service in such capacity for
Corporation; and
B. WHEREAS, the stockholders of Corporation have adopted Bylaws
(the "Bylaws") providing for the indemnification of the officers, directors,
agents and employees of Corporation to the maximum extent authorized by Section
145 of the Delaware General Corporation Law, as amended (the "Law"); and
C. WHEREAS, the Bylaws and the Law, as amended and in effect from
time to time or any successor or other statutes of Delaware having similar
import and effect, currently purport to be the controlling law governing
Corporation with respect to certain aspects of corporate law, including
indemnification of directors and officers; and
D. WHEREAS, in accordance with the authorization provided by the
Law, Corporation may from time to time purchase and maintain a policy or
policies of Directors and Officers Liability Insurance ("D & O Insurance"),
covering certain liabilities which may be incurred by its directors and officers
in the performance of services as directors and officers of Corporation; and
E. WHEREAS, as a result of developments affecting the terms,
scope and availability of D & O Insurance there exists general uncertainty as to
the extent and overall desirability of protection afforded members of the Board
of Directors by such D & O Insurance, if any, and whereas there exists general
uncertainty as to statutory and bylaw indemnification provisions; and
F. WHEREAS, in order to induce Director to continue to serve as a
member of the Board, Corporation has determined and agreed to enter into this
contract with Director.
NOW, THEREFORE, in consideration of Director's continued service as a
director after the date hereof, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. The following terms used in this
Agreement shall have the meanings set forth below. Other terms are defined where
appropriate in this Agreement.
(a) "DISINTERESTED DIRECTOR" shall mean a director of
Corporation who is not or was not a party to the Proceeding in respect of which
indemnification is being sought by Director.
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(b) "EXPENSES" shall include all direct and indirect
costs (including, without limitation, attorneys' fees, retainers, court costs,
transcripts, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
all other disbursements or out-of-pocket expenses and reasonable compensation
for time spent by Director for which he or she is otherwise not compensated by
Corporation) actually and reasonably incurred in connection with a Proceeding or
establishing or enforcing a right to indemnification under this Agreement,
applicable law or otherwise; provided, however, that "Expenses" shall not
include any Liabilities.
(c) "FINAL ADVERSE DETERMINATION" shall mean that a
determination that Director is not entitled to indemnification shall have been
made pursuant to Section 5 hereof and either (i) a final adjudication in a
Delaware court or decision of an arbitrator pursuant to Section 13(a) hereof
shall have denied Director's right to indemnification hereunder, or (ii)
Director shall have failed to file a complaint in a Delaware court or seek an
arbitrator's award pursuant to Section 13(a) for a period of one hundred twenty
(120) days after the determination made pursuant to Section 5 hereof.
(d) "INDEPENDENT LEGAL COUNSEL" shall mean a law firm or
member of a law firm selected by Corporation and approved by Director (which
approval shall not be unreasonably withheld) and that neither is presently nor
in the past five years has been retained to represent: (i) Corporation, in any
material matter, or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder. Notwithstanding the foregoing, the term
"Independent Legal 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 Corporation or Director in a
Proceeding to determine Director's right to indemnification under this
Agreement.
(e) "LIABILITIES" shall mean liabilities of any type
whatsoever including, but not limited to, any judgments, fines, ERISA excise
taxes and penalties, and penalties and amounts paid in settlement (including all
interest assessments and other charges paid or payable in connection with or in
respect of such judgments, fines, penalties or amounts paid in settlement) of
any Proceeding (as defined below).
(f) "PROCEEDING" shall mean any threatened, pending or
completed action, claim, suit, arbitration, alternative dispute resolution
mechanism, investigation, administrative hearing or any other proceeding whether
civil, criminal, administrative or investigative, including any appeal
therefrom.
(g) "CHANGE OF CONTROL" shall mean the occurrence of any
of the following events after the date of this Agreement:
(i) A change in the composition of the Board, as
a result of which fewer than two-thirds (2/3) of the incumbent directors are
directors who either (1) had been directors of Corporation twenty-four (24)
months prior to such change or (2) were elected, or nominated for election, to
the Board with the affirmative votes of at least a majority of the directors who
had been directors of Corporation 24 months prior to such change and who were
still in office at the time of the election or nomination; or
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(ii) Any "person" (as such term is used in
section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended)
through the acquisition or aggregation of securities is or becomes the
beneficial owner, directly or indirectly, of securities of Corporation
representing twenty percent (20%) or more of the combined voting power of
Corporation's then outstanding securities ordinarily (and apart from rights
accruing under special circumstances) having the right to vote at elections of
directors (the "Capital Stock"), except that any change in ownership of
Corporation's securities by any person resulting solely from a reduction in the
aggregate number of outstanding shares of Capital Stock, and any decrease
thereafter in such person's ownership of securities, shall be disregarded until
such person increases in any manner, directly or indirectly, such person's
beneficial ownership of any securities of Corporation.
2. INDEMNITY OF DIRECTOR. Subject only to the exclusions set
forth in Section 4 hereof, Corporation hereby agrees to hold harmless and
indemnify Director against any and all Liabilities in connection with any
Proceeding (including an action by or in the right of Corporation) to which
Director is, was or at any time becomes a party, or is threatened to be made a
party, by reason of the fact that Director is, was or at any time becomes a
director, officer, employee or agent of Corporation, or is or was serving or at
any time serves at the request of Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise to the fullest extent authorized or permitted
by the provisions of the Law, as may be amended from time to time.
3. ADDITIONAL INDEMNITY. Subject only to the exclusions set forth
in Section 4 hereof, Corporation hereby further agrees to hold harmless and
indemnify Director:
(a) against any and all Expenses in connection with any
Proceeding (including an action by or in the right of Corporation) to which
Director is, was or at any time becomes a party, or is threatened to be made a
party, by reason of the fact that Director is, was or at any time becomes a
director, officer, employee or agent of Corporation, or is or was serving or at
any time serves at the request of Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise; and
(b) otherwise to the fullest extent as may be provided to
Director by Corporation under the non-exclusivity provisions of the Bylaws of
Corporation and the Law.
4. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to
Section 3 hereof shall be paid by Corporation:
(a) except to the extent the aggregate of losses to be
indemnified thereunder exceeds the sum of such losses for which the Director is
indemnified pursuant to Section 2 hereof or reimbursed pursuant to any D & O
Insurance purchased and maintained by Corporation;
(b) in respect of remuneration paid to Director if it
shall be determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(c) on account of any Proceeding in which judgment is
rendered against Director for an accounting of profits made from the purchase or
sale by Director of securities of
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Corporation pursuant to the provisions of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar provisions of any
federal, state or local statutory law;
(d) on account of a Final Adverse Determination that
Director's conduct was knowingly fraudulent or deliberately dishonest or
constituted willful misconduct;
(e) provided there has been no Change of Control, on
account of or arising in response to any Proceeding (other than a Proceeding
referred to in Section 10(b) hereof) initiated by Director or any of Director's
affiliates against Corporation or any officer, director or stockholder of
Corporation unless such Proceeding was authorized in the specific case by action
of the Board of Directors of Corporation;
(f) if a final decision by a Court having jurisdiction in
the matter shall determine that such indemnification is not lawful; or
(g) on account of any Proceeding to the extent that
Director is a plaintiff, a counter-complainant or a cross-complainant therein
(other than a Proceeding permitted by Section 4(e) hereof).
5. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) Whenever Director believes that he or she is entitled
to indemnification pursuant to this Agreement, Director shall submit a written
request for indemnification to Corporation. Any request for indemnification
shall include sufficient documentation or information reasonably available to
Director to support his or her claim for indemnification. Director shall submit
his or her claim for indemnification within a reasonable time not to exceed five
years after any judgment, order, settlement, dismissal, arbitration award,
conviction, acceptance of a plea of nolo contendere or its equivalent, final
termination or other disposition or partial disposition of any Proceeding,
whichever is the later date for which Director requests indemnification. The
President, Secretary or other appropriate officer shall, promptly upon receipt
of Director's request for indemnification, advise the Board in writing that
Director has made such a request. Determination of Director's entitlement to
indemnification shall be made not later than ninety (90) days after
Corporation's receipt of his or her written request for such indemnification.
(b) The Director shall be entitled to select the forum in
which Director's request for indemnification will be heard, which selection
shall be included in the written request for indemnification required in Section
5(a). This forum shall be any one of the following:
(i) The stockholders of Corporation;
(ii) A quorum of the Board consisting of
Disinterested Directors;
(iii) Independent Legal Counsel, who shall make
the determination in a written opinion; or
(iv) A panel of three arbitrators, one selected
by Corporation, another by Director and the third by the first two arbitrators
selected. If for any reason three arbitrators
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are not selected within thirty (30) days after the appointment of the first
arbitrator, then selection of additional arbitrators shall be made by the
American Arbitration Association. If any arbitrator resigns or is unable to
serve in such capacity for any reason, the American Arbitration Association
shall select his or her replacement. The arbitration shall be conducted pursuant
to the commercial arbitration rules of the American Arbitration Association now
in effect.
If Director fails to make such designation, his or her claim shall be
determined by the forum selected by Corporation.
6. PRESUMPTION AND EFFECT OF CERTAIN PROCEEDINGS. Upon making a
request for indemnification, Director shall be presumed to be entitled to
indemnification under this Agreement and Corporation shall have the burden of
proof to overcome that presumption in reaching any contrary determination. The
termination of any Proceeding by judgment, order, settlement, arbitration award
or conviction, or upon a plea of nolo contendere or its equivalent shall not
affect this presumption or, except as may be provided in Section 4 hereof,
establish a presumption with regard to any factual matter relevant to
determining Director's rights to indemnification hereunder. If the person or
persons so empowered to make a determination pursuant to Section 5(b) hereof
shall have failed to make the requested determination within thirty (30) days
after any judgment, order, settlement, dismissal, arbitration award, conviction,
acceptance of a plea of nolo contendere or its equivalent, or other disposition
or partial disposition of any Proceeding or any other event which could enable
Corporation to determine Director's entitlement to indemnification, the
requisite determination that Director is entitled to indemnification shall be
deemed to have been made.
7. CONTRIBUTION. If the indemnification provided in Sections 2
and 3 is unavailable and may not be paid to Director for any reason other than
those set forth in Section 4, then in respect of any Proceeding in which
Corporation is or is alleged to be jointly liable with Director (or would be if
joined in such Proceeding), Corporation shall contribute to the amount of
Expenses and Liabilities paid or payable by Director in such proportion as is
appropriate to reflect (i) the relative benefits received by Corporation on the
one hand and Director on the other hand from the transaction from which such
Proceeding arose, and (ii) the relative fault of Corporation on the one hand and
of Director on the other hand in connection with the events which resulted in
such Expenses and Liabilities, as well as any other relevant equitable
considerations. The relative fault of Corporation on the one hand and of
Director on the other shall be determined by reference to, among other things,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent the circumstances resulting in such Expenses and
Liabilities. Corporation agrees that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or any other method of allocation which does not take account of the foregoing
equitable considerations.
8. INSURANCE AND FUNDING. Corporation hereby represents and
warrants that it shall purchase and maintain insurance to protect itself and/or
Director against any Expenses and Liabilities in connection with any Proceeding
to the fullest extent permitted by the Law.
9. CONTINUATION OF OBLIGATIONS. All agreements and obligations of
Corporation contained herein shall be effective as of the date Director became a
director, officer, employee or agent of Corporation (or is or was serving at the
request of Corporation as a director, officer,
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employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise) and shall continue thereafter so long
as Director shall be subject to any possible Proceeding, by reason of the fact
that Director was serving Corporation or such other entity in any capacity
referred to herein.
10. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by
Director of notice of the commencement of any Proceeding, Director will, if a
claim in respect thereof is to be made against Corporation under this Agreement,
notify Corporation of the commencement thereof; but the omission so to notify
Corporation will not relieve it from any liability which it may have to Director
otherwise than under this Agreement. With respect to any Proceeding as to which
Director notifies Corporation of the commencement thereof:
(a) Corporation will be entitled to participate therein
at its own expense;
(b) Except as otherwise provided below, to the extent
that it may wish, Corporation jointly with any other indemnifying party
similarly notified will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Director. After notice from Corporation to Director
of its election to assume the defense thereof, Corporation will not be liable to
Director under this Agreement for any Expenses subsequently incurred by Director
in connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. Director shall have the right to
employ his or her own counsel in such Proceeding but the Expenses associated
with the employment of such counsel incurred after notice from Corporation of
its assumption of the defense thereof shall be at the expense of Director unless
(i) the employment of counsel by Director has been authorized by Corporation,
(ii) Director shall have reasonably concluded that there may be a conflict of
interest between Corporation and Director in the conduct of the defense of such
Proceeding or (iii) Corporation shall not in fact have employed counsel to
assume the defense of such Proceeding, in each of which cases the Expenses of
Director's separate counsel shall be at the expense of Corporation. Corporation
shall not be entitled to assume the defense of any Proceeding brought by or on
behalf of Corporation or as to which Director shall have made the conclusion
provided for in (ii) above; and
(c) Provided there has been no Change of Control,
Corporation shall not be liable to indemnify Director under this Agreement for
any amounts paid in settlement of any Proceeding effected without its written
consent, which consent shall not be unreasonably withheld. Corporation shall be
permitted to settle any Proceeding except that it shall not settle any
Proceeding in any manner which would impose any penalty, out-of-pocket
liability, or limitation on Director without Director's written consent.
11. ADVANCEMENT AND REPAYMENT OF EXPENSES.
(a) In the event that Director employs his or her own
counsel pursuant to Section 10(b)(i) through (iii) above, Corporation shall
advance to Director, prior to any final disposition of any Proceeding any and
all Expenses incurred in investigating or defending any such Proceeding within
ten (10) days after receiving copies of invoices presented to Director for such
Expenses.
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(b) Director agrees that Director will reimburse
Corporation for all Expenses paid by Corporation in defending any Proceeding
against Director in the event and only to the extent that there has been a Final
Adverse Determination that Director is not entitled, under the provisions of the
Law, the Bylaws, this Agreement or otherwise, to be indemnified by Corporation
for such Expenses.
12. REMEDIES OF DIRECTOR.
(a) In the event that (i) a determination pursuant to
Section 5 hereof is made that Director is not entitled to indemnification, (ii)
advances of Expenses are not made pursuant to this Agreement, (iii) payment has
not been timely made following a determination of entitlement to indemnification
pursuant to this Agreement, or (iv) Director otherwise seeks enforcement of this
Agreement, Director shall be entitled to a final adjudication in an appropriate
court of his or her rights. Alternatively, Director 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 now in
effect, whose decision is to be made within ninety (90) days following the
filing of the demand for arbitration. The Corporation shall not oppose
Director's right to seek any such adjudication or arbitration award.
(b) In the event that a determination that Director is
not entitled to indemnification, in whole or in part, has been made pursuant to
Section 5 hereof, the decision in the judicial proceeding or arbitration
provided in paragraph (a) of this Section 12 shall be made de novo and Director
shall not be prejudiced by reason of a determination that he or she is not
entitled to indemnification.
(c) If a determination that Director is entitled to
indemnification has been made pursuant to Section 5 hereof or otherwise pursuant
to the terms of this Agreement, Corporation shall be bound by such determination
in the absence of (i) a misrepresentation of a material fact by Director or (ii)
a specific finding (which has become final) by an appropriate court that all or
any part of such indemnification is expressly prohibited by law.
(d) In any court proceeding pursuant to this Section 12,
Corporation shall be precluded from asserting that the procedures and
presumptions of this Agreement are not valid, binding and enforceable. The
Corporation shall stipulate in any such court or before any such arbitrator that
Corporation is bound by all the provisions of this Agreement and is precluded
from making any assertion to the contrary.
(e) Expenses reasonably incurred by Director in
connection with his or her request for indemnification under this Agreement,
enforcement of this Agreement or to recover damages for breach of this Agreement
shall be borne by Corporation.
(f) Corporation and Director agree herein that a monetary
remedy for breach of this Agreement, at some later date, will be inadequate,
impracticable and difficult to prove, and further agree that such breach would
cause Director irreparable harm. Accordingly, Corporation and Director agree
that Director shall be entitled to temporary and permanent injunctive relief to
enforce this Agreement without the necessity of proving actual damages or
irreparable harm. The Corporation and Director further agree that Director shall
be entitled to
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such injunctive relief, including temporary restraining orders, preliminary
injunctions and permanent injunctions, without the necessity of posting bond or
other undertaking in connection therewith. Any such requirement of bond or
undertaking is hereby waived by Corporation, and Corporation acknowledges that
in the absence of such a waiver, a bond or undertaking may be required by the
court.
13. ENFORCEMENT. Corporation expressly confirms and agrees that it
has entered into this Agreement and assumed the obligations imposed on
Corporation hereby in order to induce Director to continue as a director of
Corporation, and acknowledges that Director is relying upon this Agreement in
continuing in such capacity.
14. SEPARABILITY. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any or
all of the provisions hereof shall be held to be invalid or unenforceable to any
extent for any reason, such invalidity or unenforceability shall not affect the
validity or enforceability of the other provisions hereof, or the obligation of
the Corporation to indemnify the Director to the full extent provided by the
Bylaws or the Law, and the affected provision shall be construed and enforced so
as to effectuate the parties' intent to the maximum extent possible.
15. GOVERNING LAW. This Agreement shall be governed by and
interpreted and enforced in accordance with the internal laws of the State of
Delaware.
16. CONSENT TO JURISDICTION. The Corporation and Director each
irrevocably consent to jurisdiction of the courts of the State of Delaware for
all purposes in connection with any Proceeding which arises out of or relates to
this Agreement and agree that any Proceeding instituted under this Agreement
shall be brought only in the state courts of the State of Delaware.
17. BINDING EFFECT. This Agreement shall be binding upon Director
and upon Corporation, its successors and assigns, and shall inure to the benefit
of Director, his or her heirs, executors, administrators, personal
representatives and assigns and to the benefit of Corporation, its successors
and assigns.
18. ENTIRE AGREEMENT. This Agreement represents the entire
agreement between the parties hereto and there are no other agreements,
contracts or understandings between the parties hereto with respect to the
subject matter of this Agreement, except as specifically referred to herein.
This Agreement supersedes any and all agreements regarding indemnification
heretofore entered into by the parties.
19. AMENDMENT AND TERMINATION. No amendment, modification, waiver,
termination or cancellation of this Agreement shall be effective for any purpose
unless set forth in writing signed by both parties hereto.
20. SUBROGATION. In the event of payment under this agreement,
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Director, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable
Corporation effectively to bring suit to enforce such rights.
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21. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on Director by
this Agreement shall not be exclusive of any other right which Director may have
or hereafter acquire under any statute, provision of Corporation's Certificate
of Incorporation or Bylaws, agreement, vote of stockholders or directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office.
22. SURVIVAL OF RIGHTS. The rights conferred on Director by this
Agreement shall continue after Director has ceased to be a director, officer,
employee or other agent of Corporation or such other entity.
23. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be addressed to Director
or to Corporation, as the case may be, at the address shown on page 1 of this
Agreement, or to such other address as may have been furnished by either party
to the other, and shall be deemed to have been duly given if (a) delivered by
hand and receipted for by the party to whom said notice or other communication
shall have been directed, or (b) mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
DIRECTOR: XxxxxxxXxxx.xxx, Inc.,
a Delaware corporation
By:
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Its:
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