EXHIBIT 10.33
ALDERWOODS GROUP, INC.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, dated as of __________, ____ (this
"Agreement"), is made by and between Alderwoods Group, Inc., a Delaware
corporation (the "Company"), and _________________ ("Indemnitee").
RECITALS
A. It is important to the Company to attract and retain as directors
and officers the most capable persons reasonably available.
B. Indemnitee is a director and/or officer of the Company.
C. Both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and officers of
companies in today's environment.
D. The Company's Certificate of Incorporation and/or By-laws (the
"Constituent Documents") provide that the Company will indemnify its
directors and officers and will advance expenses in connection therewith, and
Indemnitee's willingness to serve as a director and/or officer of the Company
is based in part on Indemnitee's reliance on such provisions.
E. In recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's continued service
to the Company in an effective manner, and Indemnitee's reliance on the
aforesaid provisions of the Constituent Documents, and to provide Indemnitee
with express contractual indemnification (regardless of, among other things,
any amendment to or revocation of such provisions or any change in the
composition of the Company's Board of Directors (the "Board") or any
acquisition or business combination transaction relating to the Company), the
Company wishes to provide in this Agreement for the indemnification of and
the advancement of Expenses (as defined in Section 1(c)) to Indemnitee as set
forth in this Agreement and, to the extent insurance is maintained, for the
continued coverage of Indemnitee under the Company's directors' and officers'
liability insurance policies.
NOW, THEREFORE, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. In addition to terms defined elsewhere
herein, the following terms have the following meanings when used in this
Agreement with initial capital letters:
(a) "AFFILIATE" has the meaning given to that term in Rule 405
under the Securities Act of 1933.
(b) "CLAIM" means any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation, whether instituted, made
or conducted by the Company or any other party, including without limitation
any governmental entity, that Indemnitee determines might lead to the
institution of any such action, suit or proceeding, whether civil, criminal,
administrative, arbitrative, investigative or other.
(c) "EXPENSES" includes attorneys' and experts' fees, expenses and
charges and all other costs, expenses and obligations paid or incurred in
connection with investigating, defending, being a witness in or participating
in (including on appeal), or preparing to defend, be a witness in or
participate in, any Claim.
(d) "INDEMNIFIABLE LOSSES" means any and all Expenses, damages,
losses, liabilities, judgments, fines, penalties and amounts paid in
settlement (including without limitation all interest, assessments and other
charges paid or payable in connection with or in respect of any of the
foregoing) relating to, resulting from or arising out of any act or failure
to act by the Indemnitee, or his or her status as any person referred to in
clause (i) of this sentence, (i) in his or her capacity as a director,
officer, employee or agent of the Company, any of its Affiliates or any other
entity as to which the indemnitee is or was serving at the request of the
Company as a director, officer, employee, member, manager, trustee or agent
of another corporation, limited liability company, partnership, joint
venture, trust or other entity or enterprise, whether or not for profit and
(ii) in respect of any business, transaction or other activity of any entity
referred to in clause (i) of this sentence.
2. BASIC INDEMNIFICATION ARRANGEMENT. The Company will indemnify and
hold harmless Indemnitee, to the fullest extent permitted by the laws of the
State of Delaware in effect on the date hereof or as such laws may from time
to time hereafter be amended to increase the scope of such permitted
indemnification, against all Indemnifiable Losses relating to, resulting from
or arising out of any Claim. The failure by Indemnitee to notify the Company
of such Claim will not relieve the Company from any liability hereunder
unless, and only to the extent that, the Company did not otherwise learn of
the Claim and such failure results in forfeiture by the Company of
substantial defenses, rights or insurance coverage. Except as provided in
Section 17, however, Indemnitee will not be entitled to indemnification
pursuant to this Agreement in connection with any Claim initiated by
Indemnitee against the Company or any director or officer of the Company
unless the Company has joined in or consented to the initiation of such
Claim. If so requested by Indemnitee, the Company will advance within two
business days of such request any and all Expenses to Indemnitee which
Indemnitee determines reasonably likely to be payable; provided, however,
that Indemnitee will return, without interest, any such advance which remains
unspent at the final conclusion of the Claim to which the advance related.
3. INDEMNIFICATION FOR ADDITIONAL EXPENSES. Without limiting the
generality or effect of the foregoing, the Company will indemnify Indemnitee
against and, if requested by Indemnitee, will within two business days of
such request advance to Indemnitee, any and all attorneys' fees and other
Expenses paid or incurred by Indemnitee in connection with any Claim asserted
or brought by Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under this Agreement or any other agreement or under
any provision of the Company's Constituent Documents now or hereafter in
effect relating to Claims for Indemnifiable Losses and/or (ii) recovery under
any
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directors' and officers' liability insurance policies maintained by the
Company, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, advance expense payment or insurance
recovery, as the case may be.
4. PARTIAL INDEMNITY, ETC. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any Indemnifiable Loss but not for all of the total amount
thereof, the Company will nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any or all Claims
relating in whole or in part to an Indemnifiable Loss or in defense of any
issue or matter therein, including without limitation dismissal without
prejudice, Indemnitee will be indemnified against all Expenses incurred in
connection therewith. In connection with any determination as to whether
Indemnitee is entitled to be indemnified hereunder, there will be a
presumption that Indemnitee is so entitled, which presumption the Company may
overcome only by its adducing clear and convincing evidence to the contrary.
5. NO OTHER PRESUMPTION. For purposes of this Agreement, the
termination of any Claim by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo contendere or
its equivalent, will not create a presumption that Indemnitee did not meet
any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by applicable law.
6. NON-EXCLUSIVITY, ETC. The rights of Indemnitee hereunder will be
in addition to any other rights Indemnitee may have under the Constituent
Documents, or the substantive laws of the Company's jurisdiction of
incorporation, any other contract or otherwise (collectively, "Other
Indemnity Provisions"); PROVIDED, HOWEVER, that (i) to the extent that
Indemnitee otherwise would have any greater right to indemnification under
any Other Indemnity Provision, Indemnitee will be deemed to have such greater
right hereunder and (ii) to the extent that any change is made to any Other
Indemnity Provision which permits any greater right to indemnification than
that provided under this Agreement as of the date hereof, Indemnitee will be
deemed to have such greater right hereunder. The Company will not adopt any
amendment to any of the Constituent Documents the effect of which would be to
deny, diminish or encumber Indemnitee's right to indemnification under this
Agreement or any Other Indemnity Provision.
7. LIABILITY INSURANCE AND FUNDING. To the extent the Company
maintains an insurance policy or policies providing directors' and officers'
liability insurance, Indemnitee will be covered by such policy or policies,
in accordance with its or their terms, to the maximum extent of the coverage
available for any director or officer of the Company. The Company may, but
will not be required to, create a trust fund, grant a security interest or
use other means, including without limitation a letter of credit, to ensure
the payment of such amounts as may be necessary to satisfy its obligations to
indemnify and advance expenses pursuant to this Agreement.
8. SUBROGATION. In the event of payment under this Agreement, the
Company will be subrogated to the extent of such payment to all of the
related rights of recovery of Indemnitee against
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other persons or entities (other than Indemnitee's successors). The
Indemnitee will execute all papers reasonably required to evidence such
rights (all of Indemnitee's reasonable Expenses, including attorneys' fees
and charges, related thereto to be reimbursed by or, at the option of
Indemnitee, advanced by the Company).
9. NO DUPLICATION OF PAYMENTS. The Company will not be liable under
this Agreement to make any payment in connection with any Indemnifiable Loss
made against Indemnitee to the extent Indemnitee has otherwise actually
received payment (net of Expenses incurred in connection therewith) under any
insurance policy, the Constituent Documents and Other Indemnity Provisions or
otherwise of the amounts otherwise indemnifiable hereunder.
10. DEFENSE OF CLAIMS. The Company will be entitled to participate in
the defense of any Claim or to assume the defense thereof, with counsel
reasonably satisfactory to the Indemnitee, PROVIDED that in the event that
(i) the use of counsel chosen by the Company to represent Indemnitee would
present such counsel with an actual or potential conflict, (ii) the named
parties in any such Claim (including any impleaded parties) include both the
Company and Indemnitee and Indemnitee shall conclude that there may be one or
more legal defenses available to him or her that are different from or in
addition to those available to the Company, or (iii) any such representation
by the Company would be precluded under the applicable standards of
professional conduct then prevailing, then Indemnitee will be entitled to
retain separate counsel (but not more than one law firm plus, if applicable,
local counsel in respect of any particular Claim) at the Company's expense.
The Company will not, without the prior written consent of the Indemnitee,
effect any settlement of any threatened or pending Claim which the Indemnitee
is or could have been a party unless such settlement solely involves the
payment of money and includes an unconditional release of the Indemnitee from
all liability on any claims that are the subject matter of such Claim.
11. SUCCESSORS AND BINDING AGREEMENT. (a) The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of the business or
assets of the Company, by agreement in form and substance satisfactory to
Indemnitee and his or her counsel, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent the Company would be
required to perform if no such succession had taken place. This Agreement
will be binding upon and inure to the benefit of the Company and any
successor to the Company, including without limitation, any person acquiring
directly or indirectly all or substantially all of the business or assets of
the Company whether by purchase, merger, consolidation, reorganization or
otherwise (and such successor will thereafter be deemed the "Company" for
purposes of this Agreement), but will not otherwise be assignable or
delegatable by the Company.
(b) This Agreement will inure to the benefit of and be enforceable
by the Indemnitee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, legatees and other
successors.
(c) This Agreement is personal in nature and neither of the parties
hereto will, without the consent of the other, assign or delegate this
Agreement or any rights or obligations hereunder except as
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expressly provided in Sections 11(a) and 11(b). Without limiting the
generality or effect of the foregoing, Indemnitee's right to receive payments
hereunder will not be assignable, whether by pledge, creation of a security
interest or otherwise, other than by a transfer by the Indemnitee's will or
by the laws of descent and distribution, and, in the event of any attempted
assignment or transfer contrary to this Section 11(c), the Company will have
no liability to pay any amount so attempted to be assigned or transferred.
12. NOTICES. For all purposes of this Agreement, all communications,
including without limitation, notices, consents, requests or approvals,
required or permitted to be given hereunder will be in writing and will be
deemed to have been duly given when hand delivered or dispatched by
electronic facsimile transmission (with receipt thereof orally confirmed), or
five business days after having been mailed by registered or certified mail,
return receipt requested, postage prepaid or one business day after having
been sent for next-day delivery by a nationally recognized overnight courier
service, addressed to the Company (to the attention of the Secretary of the
Company) and to the Indemnitee at the addresses shown on the signature page
hereto, or to such other address as any party may have furnished to the other
in writing and in accordance herewith, except that notices of changes of
address will be effective only upon receipt.
13. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of the State of Delaware, without giving effect to
the principles of conflict of laws of such State. Each party consents to
non-exclusive jurisdiction of any Delaware state or federal court or any
court in any other jurisdiction in which a Claim is commenced by a third
person for purposes of any action, suit or proceeding hereunder, waives any
objection to venue therein or any defense based on forum non conveniens or
similar theories and agrees that service of process may be effected in any
such action, suit or proceeding by notice given in accordance with Section 12.
14. VALIDITY. If any provision of this Agreement or the application of
any provision hereof to any person or circumstance is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or circumstance will not be
affected, and the provision so held to be invalid, unenforceable or otherwise
illegal will be reformed to the extent, and only to the extent, necessary to
make it enforceable, valid or legal.
15. MISCELLANEOUS. No provision of this Agreement may be waived,
modified or discharged unless such waiver, modification or discharge is
agreed to in writing signed by Indemnitee and the Company. No waiver by
either party hereto at any time of any breach by the other party hereto or
compliance with any condition or provision of this Agreement to be performed
by such other party will be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, expressed or implied with
respect to the subject matter hereof have been made by either party that are
not set forth expressly in this Agreement. References to Sections are to
references to Sections of this Agreement.
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16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which
together will constitute one and the same agreement.
17. LEGAL FEES AND EXPENSES. It is the intent of the Company that the
Indemnitee not be required to incur legal fees and/or other Expenses
associated with the interpretation, enforcement or defense of Indemnitee's
rights under this Agreement by litigation or otherwise because the cost and
expense thereof would substantially detract from the benefits intended to be
extended to the Indemnitee hereunder. Accordingly, without limiting the
generality or effect of any other provision hereof, if it should appear to
the Indemnitee that the Company has failed to comply with any of its
obligations under this Agreement or in the event that the Company or any
other person takes or threatens to take any action to declare this Agreement
void or unenforceable, or institutes any litigation or other action or
proceeding designed to deny, or to recover from, the Indemnitee the benefits
provided or intended to be provided to the Indemnitee hereunder, the Company
irrevocably authorizes the Indemnitee from time to time to retain counsel of
Indemnitee's choice, at the expense of the Company as hereafter provided, to
advise and represent the Indemnitee in connection with any such
interpretation, enforcement or defense, including, without limitation, the
initiation or defense of any litigation or other legal action, whether by or
against the Company or any director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction. Notwithstanding any
existing or prior attorney-client relationship between the Company and such
counsel, the Company irrevocably consents to the Indemnitee's entering into
an attorney-client relationship with such counsel, and in that connection,
the Company and the Indemnitee agree that a confidential relationship shall
exist between the Indemnitee and such counsel. Without respect to whether
the Indemnitee prevails, in whole or in part, in connection with any of the
foregoing, the Company will pay and be solely financially responsible for any
and all attorneys' and related fees and expenses incurred by the Indemnitee
in connection with any of the foregoing.
18. CERTAIN INTERPRETIVE MATTERS. No provision of this Agreement will
be interpreted in favor of, or against, either of the parties hereto by
reason of the extent to which any such party or its counsel participated in
the drafting thereof or by reason of the extent to which any such provision
is inconsistent with any prior draft hereof or thereof.
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IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused
its duly authorized representative to execute this Agreement as of the date
first above written.
ALDERWOODS GROUP, INC.
By:
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Name:
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Title:
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INDEMNITEE
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