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EXHIBIT 10.14
MASTER INDEMNIFICATION AGREEMENT
AGREEMENT, dated as of [DATE] between CPC INTERNATIONAL INC., a
Delaware corporation (the "Company"), and [NAME] ("Indemnitee").
WITNESSETH:
WHEREAS, it is essential to the Company to retain and attract
as directors and officers the most capable persons available; and
WHEREAS, Indemnitee is a director/an officer of the Company; and
WHEREAS, both the Company and Indemnitee recognize the increased
risk of litigation and other claims being asserted against directors and
officers of public companies; and
WHEREAS, the By-laws of the Company require the Company to
indemnify and advance expenses to its directors and officers, and Indemnitee has
been serving and continues to serve as a director/an officer of the Company in
part in reliance on the By-laws; and
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to maintain Indemnitee's
continued service to the Company, and Indemnitee's reliance on the By-laws, and
in part to provide Indemnitee with specific contractual assurance that the
protection of the By-laws will be available to him (regardless of, among other
things, any amendment to or revocation of the By-laws or any change in the
composition of the Company's Board of Directors or any acquisition transaction
relating to the Company), the Company wishes to provide in this Agreement for
the indemnification of, and the advancing of expenses to, Indemnitee to the
fullest extent (whether partial or complete), permitted by law and 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, in consideration of the premises and of
Indemnitee continuing to serve the Company directly or, at its request, another
enterprise, and intending to be legally bound hereby, the parties hereto agree
as follows:
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Section 1. Certain definitions
(a) Change in Control: The occurrence of any of the following
events shall constitute a "Change in Control":
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities and Exchange Act of 1934, as amended, but excluding the
Company, a subsidiary of the Company, or a trustee or other fiduciary holding
securities under any employee benefit plan or employee stock plan of the Company
or a subsidiary of the Company) becomes, directly or indirectly, the "beneficial
owner" (as defined in Rule l3d-3 under said Act) of 15% or more of the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors ("Voting Securities") of the Company;
provided, however, that there shall be excluded, for this purpose, any
acquisition of Voting Securities either from the Company or pursuant to a Stock
Combination (as defined hereinafter); or
(ii) any person, as defined in (i) above, commences a tender
offer or exchange offer which, if successful, would result in such person
becoming the beneficial owner, as defined in (i) above, of at least 15% of the
outstanding Voting Securities of the Company; provided, however, that the Board
of Directors of the Company shall have the right to delay the date on which a
Change in Control shall be deemed to occur pursuant to this clause (ii), but in
no event beyond the earlier of (A) the date of the public announcement that the
Board of Directors has determined to recommend, or remain neutral toward, such
offer, or (B) the earliest date on which there is a purchase of any Voting
Securities of the Company pursuant to such offer; or
(iii) during any period of two consecutive years individuals who
at the beginning of such period constitute the Board of Directors of the Company
(including for this purpose any new director whose election by the Board of
Directors 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 who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved (such individuals and such
new directors being "Continuing Directors")) cease for any reason to constitute
a majority thereof; or
(iv) the stockholders of the Company approve a merger,
consolidation, reorganization or sale of substantially all of the assets of the
Company ("Combination") with any other corporation, other than a Combination
which (A) is approved by a majority of the directors of the Company who are
Continuing Directors at the time of such approval, and (B) would result in the
Common Stock of the Company outstanding immediately prior thereto remaining
outstanding or being converted into voting common stock, or its equivalent, of
either the surviving entity or the person owning directly or indirectly all the
common stock, or its equivalent, of the surviving entity, which voting common
stock, or its equivalent, is listed on a registered United States national
securities exchange or is approved for quotation and trading on the National
Association of Securities Dealers Automated Quotation National Market System
("Stock Combination"); or
(v) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all the Company's assets.
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(b) Claim: any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation (whether conducted by the Company or
any other party), that Indemnitee in good faith believes might lead to the
institution of any such action, suit or proceeding, whether civil, criminal,
administrative, investigative or otherwise.
(c) Expenses: include attorneys' fees and all other costs,
expenses and obligations including judgments, fines, ERISA excise taxes and
penalties paid or incurred in connection with investigating, preparing for and
defending or participating in the defense of (including on appeal) or settling
any Claim relating to any Indemnifiable Event and any and all interest,
assessments and other charges paid or payable with or in respect of such
Expenses.
(d) Indemnifiable Event: any event or occurrence related to the
fact that Indemnitee is or was a director, officer, employee, agent or fiduciary
of the Company, or is or was serving at the request of the Company as a
director, officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, or
by reason of anything done or not done by Indemnitee in any such capacity.
(e) Independent Counsel: an individual lawyer who is a member of
the Bar of the State of Delaware or a law firm which maintains an office in the
State of Delaware and, in either case, (i) is generally reputed to be
experienced in corporate law; (ii) has not otherwise been retained to represent
the Company or Indemnitee in any material matter within the past 5 years (other
than, in the case of the Company, with respect to matters concerning the rights
of Indemnitee (or of other indemnitees under similar indemnity agreements) to
indemnity payments and Expense Advances); and (iii) has been selected by
Indemnitee and approved by the Company (which approval shall not be unreasonably
withheld).
Section 2. (a) In the event Indemnitee was, is or becomes a party
to or witness or other participant in, or is threatened to be made a party to or
witness or other participant in, a Claim by reason of (or arising in part out
of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the
fullest extent permitted by the Delaware General Corporation Law, as the same
exists or may hereafter be amended, against any and all Expenses of such Claim;
provided, however, that except as provided in Section 4 hereof, the Company
shall not be obligated to indemnify Indemnitee in connection with any action,
suit or proceeding initiated by Indemnitee unless such action, suit or
proceeding was authorized by the Board of Directors, either generally or in the
specific instance. To the extent that Indemnitee has been successful, on the
merits or otherwise, in defense of any Claim relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter therein, including
dismissal with or without prejudice, Indemnitee shall be indemnified against
Expenses incurred in connection therewith without further determination. In all
other cases, the determination of whether and the extent to which Indemnitee
would be permitted to be indemnified under applicable law shall be made in
writing by the Reviewing Party (as defined in Section 2(c) hereof) as soon as
practicable but in any event not later than 60 days after written demand
therefor is presented to the Company.
(b) If so requested by Indemnitee, the Company shall advance
(within 5 business days of such request) any and all Expenses to Indemnitee (an
"Expense Advance"). The Indemnitee hereby agrees to reimburse the Company for
all Expense Advances to the extent it shall be ultimately determined that
Indemnitee is not entitled to be indemnified hereunder. If
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Indemnitee has commenced legal proceedings in a court of competent jurisdiction
pursuant to Section 2(e) hereof to secure a determination that Indemnitee should
be indemnified under applicable law, Indemnitee shall not be required to so
reimburse the Company for any Expense Advance until a final judicial
determination is made with respect thereto as to which all rights of appeal
therefrom have been exhausted or lapsed.
(c) If there has not been a Change in Control, the Reviewing
Party shall be any appropriate person or body consisting of a member or members
of the Company's Board of Directors, or any other person or body appointed by
the Board, who is not a party to the particular Claim for which Indemnitee is
seeking indemnification. If there has been a Change in Control, the Reviewing
Party shall be Independent Counsel. The Company agrees to pay the reasonable
fees of Independent Counsel and to indemnify fully Independent Counsel against
any and all expenses (including attorneys' fees), claims, liabilities and
damages arising out of or relating to this Agreement or the engagement of
Independent Counsel pursuant hereto.
(d) The Reviewing Party (and the court in any legal proceeding
seeking a determination of whether or not Indemnitee is entitled to Expense
Advances or reimbursement hereunder) shall presume that Indemnitee is entitled
to indemnification pursuant to Section 2(a) hereof, and the Company shall have
the burden of proof in the making of any determination contrary to such
presumption. If no determination pursuant to Section 2(a) hereof is made within
60 days of the Company's receipt of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been
made, and Indemnitee shall be absolutely entitled to such indemnification,
absent (i) a misstatement of a material fact in the request for indemnification
or an omission of a material fact necessary to make the statements in such
request not materially misleading with respect to the information necessary for
the determination of entitlement to indemnification or (ii) a prohibition of
such indemnification under applicable law.
(e) If the Reviewing Party determines that Indemnitee would not
be permitted to be indemnified in whole or in part under applicable law,
Indemnitee shall have the right within 90 days to commence litigation in any
court having subject matter jurisdiction thereof and in which venue is proper
seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, and the Company
hereby consents to service of process and to appear in any such proceeding.
Section 3. In the event of a Change in Control, the Company
shall, upon written request by Indemnitee, create a trust for the benefit of
Indemnitee (the "Trust") and from time to time upon written request of
Indemnitee shall fund the Trust in an amount sufficient to satisfy any and all
Expenses reasonably anticipated at the time of each such request to be incurred
in connection with investigating, preparing for and defending any Claim relating
to an Indemnifiable Event, and any and all judgments, fines, ERISA excise taxes,
penalties and settlement amounts of any and all Claims relating to an
Indemnifiable Event from time to time actually paid or claimed, reasonably
anticipated or proposed to be paid. The amount or amounts to be deposited in the
Trust pursuant to the foregoing funding obligation shall be determined by
Independent Counsel. The terms of the Trust shall provide that (i) the Trust
shall not be revoked, or the principal thereof invaded, without the written
consent of Indemnitee, (ii) the Trustee shall advance, within 5 business days of
a request by Indemnitee, any and all Expenses to Indemnitee (and Indemnitee
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hereby agrees to reimburse the Trust under the circumstances under which
Indemnitee would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the Trust shall continue to be funded by the Company in
accordance with the funding obligation set forth above, (iv) the Trustee shall
promptly pay to Indemnitee all amounts for which Indemnitee shall be entitled to
indemnification pursuant to this Agreement or otherwise, and (v) all unexpended
funds in the Trust shall revert to the Company upon a final determination by
Independent Counsel or a court of competent jurisdiction, as the case may be,
that Indemnitee has been fully indemnified under the terms of this Agreement.
The Trustee shall be chosen by Independent Counsel and reasonably satisfactory
to Indemnitee. Nothing in this Section 3 shall relieve the Company of any of its
obligations under this Agreement.
Section 4. The Company shall indemnify Indemnitee against any and
all expenses (including attorneys' fees) and, if requested by Indemnitee, shall
(within 5 business days of such request) advance such expenses to him which are
incurred by him in connection with any claim asserted against or action brought
by him for (i) indemnification or advance payment of Expenses by the Company
under this Agreement or any other agreement or Company By-law now or hereafter
in effect relating to Claims for Indemnifiable Events and/or (ii) recovery under
any 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.
Section 5. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines, ERISA excise taxes, penalties and amounts paid in
settlement of a Claim but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled.
Section 6. The termination of any claim, action, suit or
proceeding, by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere, or its equivalent,
shall 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.
Section 7. The rights of Indemnitee hereunder shall be in
addition to any other rights he may have under the Company's By-laws or the
Delaware General Corporation Law or otherwise. To the extent that a change in
the Delaware General Corporation Law (whether by statute or judicial decision)
permits greater indemnification by agreement than would be afforded currently
under the Company's By-laws and 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.
Section 8. To the extent the Company maintains an insurance
policy or policies providing directors' and officers' liability insurance,
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
director/officer of the Company.
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Section 9. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of 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 hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
Section 10. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to a of the rights of
recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
Section 11. The Company shall not be liable under this Agreement
to make any payment in connection with any claim made against Indemnitee to the
extent Indemnitee has otherwise actually received payment (under any insurance
policy, By-law or otherwise) of the amounts otherwise indemnifiable hereunder.
Section 12. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs, and personal and legal
representatives. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as a director/an officer of the Company or of any
other enterprise at the Company's request.
Section 13. The provisions of this Agreement shall be severable
in the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Section 14. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in such state without giving effect to the
principles of conflicts of laws.
Executed in Englewood Cliffs, New Jersey, as of the day and year
first above written.
CPC INTERNATIONAL INC.
BY _________________________________
_________________________________
Indemnitee
