FORM OF INDEMNIFICATION AGREEMENT
Exhibit
10.1
FORM OF INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (this “Agreement”) is made as of ________ __, 2009 by
and between Endo Pharmaceuticals Holdings Inc., a Delaware corporation (the
“Company”), and ______________ (“Indemnitee”). This Agreement
supersedes and replaces any and all previous agreements between the Company and
Indemnitee covering the subject matter of this Agreement.
RECITALS
WHEREAS,
it is essential to the Company to retain and attract as directors and officers
the most capable persons available;
WHEREAS,
capable persons have become more reluctant to serve publicly-held corporations
as directors, officers or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of their service
to and activities on behalf of the Company;
WHEREAS,
Indemnitee is a director of the Company’s Board of Directors (the “Board”)
and/or an officer of the Company;
WHEREAS,
both the Company and Indemnitee recognize the increased risk of litigation and
other claims being asserted against directors and officers of publicly-held
corporations in today’s environment and the need for substantial protection
against personal liability in order to enhance Indemnitee’s continued service to
the Company in an effective manner;
WHEREAS,
the Company has determined that its inability to retain and attract as directors
and officers the most capable persons would be detrimental to the interests of
the Company, and that the Company therefore should seek to assure such persons
that indemnification and insurance coverage will be available in the
future;
WHEREAS,
the Company’s Amended and Restated Certificate of Incorporation and Amended and
Restated By-Laws (collectively, the “Charter Documents”) require the Company to
indemnify and advance Expenses (as defined below) to its directors and officers
to the extent provided therein, and Indemnitee serves as a director and/or
officer of the Company, in part, in reliance on such provisions in the Charter
Documents; and
WHEREAS,
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 Charter Documents, and in
part to provide Indemnitee with specific contractual assurance that the
protection promised by the Charter Documents will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation of the
applicable provisions of the Charter Documents or any change in the composition
of the governing bodies of the Company 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 (as defined below) 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
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maintained,
for the continued coverage of Indemnitee under the directors’ and officers’
liability insurance policy of the Company.
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
and of Indemnitee continuing to serve the Company, the Company and Indemnitee do
hereby covenant and agree as follows:
Section
1. Definitions. As
used in this Agreement:
(a) “Corporate Status” shall mean the status of a person who
is or was a director, officer, employee, trustee, agent or fiduciary of the
Company or of any other corporation, limited liability company, partnership
or joint venture, trust, employee benefit plan or other enterprise which such
person is or was serving at the request of the Company.
(b) “Change in Control” shall be deemed to occur if and
when: (i) any person (including as such term is used in
Sections 13(d) and 14(d)(2) of the 1934 Act (as defined below)) is or becomes
the “beneficial owner” (as defined in Rule 13d-3 under the
1934 Act (as defined below)), directly or indirectly, of securities representing
25% or more of the combined voting power of
the Company’s then outstanding securities (not
including in the securities beneficially owned by such person any securities
acquired directly from the Company), other than a trustee or other fiduciary
holding securities under an
employee benefit plan of the Company, a corporation owned directly or
indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, or any Person who becomes such a
beneficial owner in connection with a transaction
described in clause (A) of paragraph (iii) below; or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board and
any new director whose election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of
at least two-thirds (2/3) 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, cease for any reason to constitute a majority thereof; or (iii) the
Company’s shareholders approve a merger, or
consolidation other than a merger or consolidation, (A) which 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 50% of the total voting
power represented by the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (B) effected to implement a
recapitalization of the Company (or similar transaction) in which no person is
or becomes the “beneficial owner,” directly or indirectly, of
securities representing 25% or more of the combined
voting power of the Company’s then outstanding
securities (not including
in the securities beneficially owned by such person any securities acquired
directly from the Company); or (iv) the Company’s shareholders approve a sale or disposition of all
or substantially all of the Company’s assets (in one transaction or a series
of transactions) or a plan or partial or complete
liquidation, other than a sale or disposition by the Company of
all or substantially all of
the Company’s assets to an entity at least 75% of
the combined voting power of the voting securities of which are owned by persons
in substantially the same proportions as their ownership of the Company
immediately prior to such sale or disposition. “1934 Act” means the Securities and Exchange Act
of 1934, as amended, including the rules and regulations promulgated
thereunder.
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(c) “Disinterested Director” shall mean a director of the Company
who is not and was not a party to the Proceeding (as defined below) in respect of which
indemnification is sought by Indemnitee.
(d) “Enterprise” shall mean the Company and any other
corporation, limited liability company, partnership, 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, employee, trustee, agent or
fiduciary.
(e) “Expenses” shall mean all expenses and
liabilities, including judgments, fines, penalties, interest, amounts paid in
settlement with the
approval of the Company, reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service
fees, any federal, state,
local, foreign or other taxes imposed on Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement, penalties arising from breaches of Part
4 of Title I of ERISA and
related taxes under the United States Internal Revenue Code of 1986, as
amended, 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, or otherwise participating in, a
Proceeding. Expenses also shall include (i) 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,
and (ii) Expenses incurred by Indemnitee in connection with the
interpretation, enforcement or defense of
Indemnitee’s rights under this Agreement, by
litigation or otherwise. The parties agree that for the purposes
of any advancement of
Expenses for which Indemnitee has made written demand to the Company in
accordance with this Agreement, all Expenses included in such demand that are
certified by affidavit of Indemnitee’s counsel as being reasonable shall be
presumed conclusively to be
reasonable.
(f) “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 three (3) years has been, retained to
represent: (i) the Company or Indemnitee in any matter
material to either such party (other than with respect to matters concerning
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 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. The Company agrees to pay the reasonable fees and expenses
of the Independent Counsel and to fully indemnify such counsel against any
and all expenses, claims,
liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(g) “Proceeding” shall mean any threatened, asserted,
pending or completed action, suit, arbitration, alternate dispute
resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened
or completed proceeding, whether brought in the right of the Company or
otherwise and whether of a civil, criminal,
administrative
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legislative, or investigative (formal or informal) nature, including
any appeal therefrom, in which Indemnitee was, is or will be involved as a
party, potential party, non-party witness or otherwise by reason of the fact
that Indemnitee is or was a director, officer, employee, trustee, agent or fiduciary of an Enterprise,
or by reason of anything done or not done by Indemnitee in any such capacity, by
reason of any action taken by him/her or of any action on his/her part while
acting pursuant to his/her Corporate Status, in each case whether or not serving in such capacity
at the time any liability or Expense is incurred for which indemnification,
reimbursement, or advancement of Expenses can be provided under this
Agreement. If Indemnitee reasonably believes in good faith that a
given situation may lead to or culminate in
the institution of a Proceeding, such situation shall be considered a Proceeding
under this paragraph.
(h) “Reviewing Party” shall mean any appropriate person or
body consisting of a member or members of the Board or any other person or body appointed by
the Board who is not a party to the particular Proceeding for which Indemnitee
is seeking indemnification, or Independent Counsel.
Section
2. Indemnity in Third-Party
Proceedings. The Company shall indemnify Indemnitee in
accordance with the provisions of this Section 2 if Indemnitee was, is, or is
threatened to be made, a party to, a witness or other participant 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 2, Indemnitee shall
be indemnified to the fullest extent permitted by applicable law, as soon as
practicable but in any event no later than thirty (30) days after written demand
is presented to the Company, against all Expenses (including all interest,
assessments and other charges paid or payable in connection with or in respect
of such Expenses) actually and reasonably incurred by Indemnitee or on his/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/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/her conduct was
unlawful. No change in applicable law shall have the effect of
reducing the benefits available to Indemnitee hereunder.
Section
3. Indemnity in Proceedings by
or in the Right of the Company. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee
was, is, or is threatened to be made, a party to, a witness or other participant
in any 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 to
the fullest extent permitted by applicable law, as soon as practicable but in
any event no later than thirty (30) days after written demand is presented to
the Company, against all Expenses actually and reasonably incurred by him/her or
on his/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/she
reasonably believed to be in or not opposed to the best interests of the
Company. No indemnification for Expenses shall be made under this
Section 3 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 the Delaware Court of Chancery or any court in which the
Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is entitled to indemnification. No change in applicable
law shall have the effect of reducing the benefits available to Indemnitee
hereunder.
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Section
4. Indemnification for Expenses
of a Party Who is Wholly or Partly Successful. Notwithstanding
any other provisions of this Agreement, to the fullest extent permitted by
applicable law and 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 Indemnitee against all Expenses actually and reasonably incurred
by him/her in connection therewith. If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, the Company shall indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled. For purposes of this Section
4 and without limitation, the termination of any claim, issue or matter in such
a Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
Section
5. Indemnification For Expenses
of a Witness. Notwithstanding any other provision of this
Agreement, to the fullest extent permitted by applicable law and to the extent
that Indemnitee is, by reason of his/her Corporate Status, a witness or
otherwise asked to participate in any Proceeding to which Indemnitee is not a
party, he/she shall be indemnified against all Expenses actually and reasonably
incurred by him/her or on his/her behalf in connection therewith.
Section
6. Exclusions. Notwithstanding
any provision in this Agreement, the Company shall not be obligated under this
Agreement to make any indemnity in connection with any claim made against
Indemnitee:
(a) for which payment has actually been
made to or on behalf of
Indemnitee under any insurance policy or other indemnity provision in the
Charter Documents, except with respect to any excess beyond the amount paid
under any insurance policy or other indemnity provision. In the event
that such actual payment is made under any insurance
policy or indemnity provision after the Company has made an indemnity
payment under this Agreement, Indemnitee shall
promptly reimburse the Company for such indemnity in the amount of such payment;
or
(b) for (i) 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 1934 Act or similar
provisions of state statutory law or common law, or (ii) any
reimbursement of the Company by Indemnitee of any
bonus or other incentive-based or equity-based compensation or of any profits
realized by Indemnitee from the sale of securities of the Company, as required
in each case under the 1934 Act (including any such reimbursements that arise from an accounting
restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of
2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of
profits arising from the purchase and sale by Indemnitee of securities in
violation of Section 306 of
the Xxxxxxxx-Xxxxx Act); or
(c) 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, (ii) the Proceeding is
for enforcement of this Agreement (to the extent that
Indemnitee
5
prevails), or (iii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers vested in the
Company under applicable law; or
(d) for which the Reviewing Party shall have
determined (in a written opinion, in any case in which the Independent Counsel is involved) that
Indemnitee would not be permitted to be indemnified under applicable law;
provided, however, Indemnitee shall have the right to
commence litigation in any court in the States of Pennsylvania or
Delaware 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, including the legal or factual bases
thereof, and the Company hereby consents to service
of process and to appear in any such proceeding. Any determination by
the Reviewing Party otherwise shall be conclusive and binding on the Company and
Indemnitee. If Indemnitee commences legal proceedings in a
court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under applicable law, any
determination made by the Reviewing Party that Indemnitee is not entitled to be
indemnified under applicable law shall not be binding until a final judicial determination is made
(as to which all rights of appeal therefrom have been exhausted or lapsed) that
Indemnitee is not entitled to be so indemnified under applicable
law.
Section
7. Advances of
Expenses.
(a) Notwithstanding any provision of this Agreement to the contrary,
the Company shall advance or reimburse, to the extent not prohibited by law, the
Expenses incurred by Indemnitee in connection with any Proceeding (or any part
of any Proceeding)
(“Advances”). Advances shall be
made within twenty-one (21)
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
indemnification under the other provisions of this
Agreement. Advances shall also include any and all reasonable
Expenses incurred pursuing
an action to enforce this right of advancement, including Expenses incurred
preparing and forwarding statements to the Company to support the Advances
claimed. This Section 7 shall not apply to any claim made by
Indemnitee for which indemnity is excluded pursuant to Section
6.
(b) The obligation of the Company to make an
advancement of Expenses pursuant to Section 7(a) shall be subject to the
condition that, if, when and to the extent that the Reviewing Party determines
that Indemnitee would not
be permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts paid; provided, however, that if Indemnitee has commenced or
thereafter commences legal
proceedings in a court of competent jurisdiction to secure a determination that
Indemnitee should be indemnified under applicable law, any determination made by
the Reviewing Party that Indemnitee would not be permitted to be
indemnified under applicable law shall not be
binding and Indemnitee shall not be required to reimburse the Company for
any Advance until a final judicial determination is made with respect thereto
(as to which all rights of appeal therefrom have been exhausted or
lapsed). Indemnitee’s undertaking to repay such Advances
shall be unsecured and interest-free.
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Section
8. Procedure for Notification
and Defense of Claim.
(a) Indemnitee shall notify the Company in
writing of any matter with respect to which Indemnitee intends to seek indemnification or
advancement of Expenses hereunder as soon as reasonably practicable following
the receipt by Indemnitee of any written notice, summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding or matter which may
be subject to indemnification or advancement of Expenses covered under this
Agreement. The written notification to the Company shall include a
description of the nature of the Proceeding, the facts underlying the
Proceeding, and documentation and
information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to
indemnification. The failure by Indemnitee to notify the Company
hereunder will not relieve the Company from any
liability which it may have to Indemnitee hereunder or otherwise than under this
Agreement, and any delay in so notifying the Company shall not constitute a
waiver by Indemnitee of any rights under this Agreement. The
Secretary of the Company shall, promptly
upon receipt of such a request for indemnification, advise the Board in writing
that Indemnitee has requested indemnification.
(b) The Company will be entitled to
participate in the Proceeding at its own expense.
Section
9. Procedure Upon Application
for Indemnification.
(a) Upon written request by Indemnitee for
indemnification pursuant to Section 8(a), a determination with respect to
Indemnitee’s entitlement thereto shall be made by
the Reviewing Party, who shall be: (i) if a Change in
Control (other than a Change in Control which
has been approved by a majority of the Board who were directors immediately
prior to such Change in Control) shall have occurred, Independent
Counsel, retained pursuant
to Section 9(c);
or (ii) if a Change in
Control shall not have occurred, (A) selected by a majority vote of the
Disinterested Directors, even though less than a quorum of the Board, or (B) if
there are no such Disinterested Directors or, if such Disinterested Directors so
direct, Independent Counsel, retained by
the Company (who shall make such determination in the form of a written opinion
to the Board, a copy of which shall be delivered to
Indemnitee). Indemnitee shall cooperate with the Reviewing Party,
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 Reviewing Party shall be borne by the
Company (irrespective of the determination as to Indemnitee’s entitlement to
indemnification).
(b) In the event that Independent Counsel is
retained by the Company pursuant to Section 9(a), written notice of the
selection shall be provided promptly to Indemnitee. Upon the due commencement of any
judicial proceeding pursuant to Section 11(a) of this Agreement, legal counsel shall be
discharged and relieved of any further responsibility in such capacity (subject
to the applicable standards of professional conduct then
prevailing).
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(c) The Company agrees that if there is a
Change in Control of the
Company (other than a Change in Control which
has been approved by a majority of the Board who were directors immediately
prior to such Change in Control) then with respect to all matters
thereafter arising concerning the rights of Indemnitee to indemnity
payments and Advances under
this Agreement or any other agreement or the Charter Documents now or hereafter
in effect relating to any Proceeding , the Company shall seek legal advice only
from Independent Counsel selected by Indemnitee and approved by the
Company (which approval shall not be
unreasonably withheld). Such Independent Counsel, among other things,
shall render its written opinion to the Company and Indemnitee as to whether and
to what extent Indemnitee would be permitted to be indemnified under applicable law. The Company
agrees to pay the reasonable fees of the Independent Counsel and to indemnify
fully such Independent Counsel against any and all expenses (including
attorneys’ fees), claims, liabilities and damages
arising out of or relating to this Agreement or its engagement
pursuant hereto.
Section
10. Presumptions and Effect of
Certain Proceedings.
(a) In making a determination with respect
to entitlement to indemnification hereunder, the Reviewing Party shall, to the
fullest extent not prohibited by law, presume that Indemnitee
is entitled to indemnification under this Agreement if Indemnitee has submitted
a request for indemnification in accordance with Section 8(a) of this Agreement,
and the Company shall, to the fullest extent not prohibited by law, 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.
(b) Subject to Section 11(d), if the
Reviewing Party shall not have made a determination within sixty (60) days
after receipt by the Company of the request thereof, the requisite determination
of entitlement to indemnification shall, to the fullest extent not prohibited by
law, 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; provided, however, that such 60-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; and provided, further, that the foregoing provisions of this
Section 10(b) shall not apply if the determination of entitlement
to indemnification is to be made by Independent Counsel pursuant to Section 9(a)
of this Agreement.
(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) adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not meet any
particular standard of
conduct, act in good faith and in a manner which he/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/her conduct was
unlawful.
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(d) Actions of
Others. The
knowledge and/or actions, or failure to act, of any director, officer, employee,
trustee, agent or fiduciary of the Enterprise shall not be imputed to Indemnitee for
purposes of determining the right to indemnification under this
Agreement.
Section
11. Remedies of
Indemnitee.
(a) Subject to Section 11(d), in the event
that (i) the advancement
of Expenses is not timely made pursuant to Section 7
of this Agreement, (ii)
no determination of entitlement to indemnification
shall have been made pursuant to Section 9(a) of this Agreement within ninety
(90) days after receipt by the Company of the request for indemnification,
(iii)
the payment of indemnification is not made pursuant to Section 2 or 3 within
thirty
(30) days after receipt by the Company of a written request thereof, or
(iv)
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, Indemnitee the benefits provided or
intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to
an adjudication by a court of his/her entitlement to such indemnification or
advancement of Expenses.
(b) Any judicial proceeding commenced
pursuant to this Section 11 shall be conducted in all respects as a
de novo trial on the merits and the Company shall have the burden of
proving that Indemnitee is not entitled to indemnification or advancement of
Expenses.
(c) If a determination shall have been made
that Indemnitee is entitled to indemnification, the Company shall be bound by
such determination in any judicial proceeding commenced pursuant to this
Section 11, 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.
(d) Notwithstanding anything in this Agreement to the
contrary, no determination as to entitlement of Indemnitee to indemnification
under this Agreement shall be required to be made prior to the final disposition
of the Proceeding.
Section
12. Non-exclusivity; Insurance;
Subrogation; Other Payments.
(a) The rights of indemnification and to
receive 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 Documents, any agreement, a
vote of stockholders or a resolution of the Board, or otherwise. To
the extent that a change in Delaware law, whether by statute or judicial
decision, permits greater indemnification or advancement of Expenses
than would be afforded currently under the
Charter Documents and this Agreement, it is the intent of the
parties hereto that Indemnitee shall, by this Agreement, enjoy the greater
benefits so afforded by such change. To the extent that there is a
conflict or inconsistency
between the terms of this Agreement and the Charter Documents, it is the intent
of the parties hereto that Indemnitee shall enjoy the greater benefits
regardless of whether contained herein or in the Charter
Documents. No amendment or alteration of the Charter Documents or any
other agreement shall adversely affect the rights provided to Indemnitee under
this Agreement.
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(b) To the extent that the Company maintains
an insurance policy or policies providing liability insurance for directors,
officers, employees, or
agents of the Enterprise, 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, officer, employee or agent under such
policy or policies. If, at the
time of the receipt of a notice of a claim pursuant to the terms hereof, the
Company has director and officer liability insurance in effect, the Company
shall give prompt notice of such claim or of the commencement of a
Proceeding, as the case may be, 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 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. The Company shall pay or reimburse all expenses actually and
reasonably incurred by Indemnitee in
connection with such subrogation.
(d) The Company’s obligation to indemnify or advance
Expenses hereunder to Indemnitee who is or was serving at the request of the
Company as a director, officer, employee, trustee, agent or fiduciary of any Enterprise shall
be reduced by any amount Indemnitee has actually received as indemnification or
advancement of Expenses from such other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by
any amount Indemnitee has actually received as indemnification or advancement of
Expenses from such other corporation, limited liability company, partnership,
joint venture, trust or other enterprise.
Section
13. Actions of the
Company. To the extent that this Agreement contemplates
actions to be taken by the Company, any officer engaging in such actions shall
not be a party to the Proceeding in respect of which indemnification is
sought.
Section
14. 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 an officer of the Company or in other Corporate
Status due to service as a director or an officer of the Company or (b) one (1)
year after the final termination of any Proceeding then pending in respect of
which Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by Indemnitee pursuant to
Section 11 of this Agreement relating thereto. This Agreement
shall be binding upon the Company and its successors and assigns, and the
Company agrees to assign this Agreement to any purchaser of substantially all of
the assets and to secure the agreement of such purchaser to assume this
Agreement. This Agreement shall inure to the benefit of Indemnitee
and his/her heirs, executors and administrators.
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Section
15. Reliance as Safe
Harbor. Indemnitee shall be entitled to indemnification for
any action or omission to act undertaken (a) in good faith reliance upon
the records of the Company, including its financial statements, or upon
information, opinions, reports or statements furnished to Indemnitee by the
officers or employees of the Company or any of its subsidiaries in the course of
their duties, or by committees of the Board, or by any other person as to
matters Indemnitee reasonably believes are within such other person’s
professional or expert competence, or (b) on behalf of the Company in
furtherance of the interests of the Company in good faith in reliance upon, and
in accordance with, the advice of legal counsel or accountants, provided such
legal counsel or accountants were selected with reasonable care by or on behalf
of the Company. In addition, the knowledge and/or actions, or
failures to act, of any director, officer, agent or employee of the Company
shall not be imputed to Indemnitee for purposes of determining the right to
indemnity hereunder.
Section
16. Severability. If
any provision or provisions of this Agreement shall be held to be invalid, void,
illegal or otherwise unenforceable for any reason whatsoever, by a court of
competent jurisdiction: (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, void
or otherwise 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 shall be construed so as to give effect to the intent manifested
thereby.
Section
17. Merger. 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; provided, however, that this
Agreement is a supplement to and in furtherance of the Charter Documents and
applicable law, and shall not be deemed a substitute thereof, nor to diminish or
abrogate any rights of Indemnitee thereunder.
Section
18. Modification and
Waiver. 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. In
the event the Company or any of its subsidiaries enters into an indemnification
agreement with another director, officer, employee, trustee, agent or fiduciary
of the Company or any of its subsidiaries containing a term or terms more
favorable to Indemnitee than the terms contained herein (as determined by
Indemnitee), Indemnitee shall be afforded the benefit of such more favorable
term or terms and such more favorable term or terms shall be deemed incorporated
by reference herein as if set forth in full herein. As promptly as
practicable following the execution by the Company or the relevant subsidiary of
each indemnity agreement with any such other director, officer, employee,
trustee, agent or fiduciary (i) the Company shall send a copy of the indemnity
agreement to Indemnitee, and (ii) if requested by Indemnitee, the Company shall
prepare, execute and deliver to Indemnitee an amendment to this Agreement
containing such more favorable term or terms.
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Section
19. Notices. All notices, requests,
demands and other communications under this Agreement shall be in writing 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, (b) mailed by certified or registered mail, with postage prepaid, on
the third business day after the date on which it is so mailed, (c) mailed by
reputable overnight courier and receipted for by the party to whom said notice
or other communication shall have been directed or (d) sent by facsimile
transmission, with receipt of oral confirmation that such transmission has been
received, for each party, at the address indicated on the signature page of this
Agreement, or at such other address as each party shall provide to the other
party.
Section
20. 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 and/or
rules. The Company and Indemnitee hereby irrevocably and
unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement may be brought in the Chancery Court of the State
of Delaware (the “Delaware Court”), or in any other state or federal court in
the United States of America with subject matter and personal jurisdiction, but
not in any court in any other country, (ii) waive any objection to the laying of
venue of any such action or proceeding in the Delaware Court, and (iii) 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.
Section
21. 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.
Section
22. 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.
Section
23. Headings. The
headings contained in this Agreement are inserted for convenience only and shall
not be deemed to affect construction of this Agreement.
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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.
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INDEMNITEE
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By:________________________
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________________________ | |
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Name:
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Name:
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Title:
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Title:
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Address:
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Address:
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