EX-10.1
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered into as
of this 23rd day of May, 2001, by and between Ergo Science Corporation, a
Delaware corporation (the "Company"), and ("Indemnitee").
RECITALS:
A. Competent and experienced persons are reluctant to serve or to continue
to serve corporations as directors, officers, or in other capacities unless they
are provided with adequate protection through insurance or indemnification (or
both) against claims and actions against them arising out of their service to
and activities on behalf of those corporations.
B. The current uncertainties relating to the availability of adequate
insurance for directors and officers have increased the difficulty for
corporations to attract and retain competent and experienced persons.
C. The Board of Directors of the Company has determined that the
continuation of present trends in litigation will make it more difficult to
attract and retain competent and experienced persons, that this situation is
detrimental to the best interests of the Company's stockholders, and that the
Company should act to assure its directors and officers that there will be
increased certainty of adequate protection in the future.
D. It is reasonable, prudent, and necessary for the Company to obligate
itself contractually to indemnify its directors and officers to the fullest
extent permitted by applicable law in order to induce them to serve or continue
to serve the Company.
E. Indemnitee is willing to serve and continue to serve the Company on the
condition that he be indemnified to the fullest extent permitted by law.
F. Concurrently with the execution of this Agreement, Indemnitee is
agreeing to serve or to continue to serve as a director or officer of the
Company.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing premises, Indemnitee's
agreement to serve or continue to serve as a director or officer of the Company,
and the covenants contained in this Agreement, the Company and Indenmitee hereby
covenant and agree as follows:
1. CERTAIN DEFINITIONS:
For purposes of this Agreement:
(a) ACQUIRING PERSON: shall mean any Person other than (i) the
Company, (ii) any of the Company's Subsidiaries, (iii) any employee benefit
plan of the Company or of a Subsidiary of the Company or of 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 (iv) any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or of a Subsidiary of the Company or of
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.
(b) CHANGE IN CONTROL: shall be deemed to have occurred if:
(i) any Acquiring Person is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), directly or indirectly, of securities
of the Company representing fifty percent or
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more of the combined voting power of the then outstanding Voting
Securities of the Company; or
(ii) members of the Incumbent Board cease for any reason to
constitute at least a majority of the Board of Directors of the
Company; or
(iii) the Company merges or consolidates with any other
corporation or entity, or the Company or the stockholders of the
Company and holders of voting securities in such other corporation or
entity participate in a securities exchange, other than a merger,
consolidation or securities exchange that would result in the Voting
Securities of the Company outstanding immediately before the
completion thereof continuing to represent a majority of the combined
voting power of the Voting Securities of the surviving entity (or its
parent) outstanding immediately after that merger, consolidation or
securities exchange; or
(iv) the Company liquidates, sells or disposes of all or
substantially all the Company's assets in one transaction or series
of transactions other than a liquidation, sale, or disposition of all
or substantially all the Company's assets in one transaction or a
series of related transactions to an entity owned directly or
indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
(c) CLAIM: shall mean any threatened, pending, or completed action,
suit, or proceeding (including, without limitation, securities laws actions,
suits, and proceedings and also any crossclaim or counterclaim in any
action, suit, or proceeding), whether civil, criminal, arbitral,
administrative, or investigative in nature, or any inquiry or investigation
(including discovery), whether conducted by the Company or any other Person,
that Indemnitee in good faith believes might lead to the institution of any
action, suit, or proceeding.
(d) EXPENSES: shall mean all costs, expenses (including attorneys' and
expert witnesses' fees), and obligations paid or incurred in connection with
investigating, defending (including affirmative defenses and counterclaims),
being a witness in, or participating in (including on appeal), or preparing
to defend, be a witness in, or participate in, any Claim relating to any
Indemnifiable Event.
(e) INCUMBENT BOARD: shall mean individuals who, as of May 23, 2001,
constitute the Board of Directors of the Company and any other individual
who becomes a director of the Company after that date and whose election or
appointment 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 comprising the Incumbent Board.
(f) INDEMNIFIABLE EVENT: shall mean any actual or alleged act,
omission, statement, misstatement, 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, employee benefit plan, trust, or
other enterprise, or by reason of any actual or alleged thing done or not
done by Indemnitee in any such capacity. For purposes of this Agreement, the
Company agrees that Indemnitee's service on behalf of or with respect to any
Subsidiary or employee benefits plan of the Company or any Subsidiary of the
Company shall be deemed to be at the request of the Company.
(g) INDEMNIFIABLE LIABILITIES: shall mean all Expenses and all other
liabilities, damages (including, without limitation, punitive, exemplary,
and the multiplied portion of any damages), judgments, payments, fines,
penalties, amounts paid in settlement, and awards paid or incurred that
arise out of, or in any way relate to, any Indemnifiable Event.
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(h) PERSON: shall mean any person or entity of any nature whatsoever,
specifically including an individual, a firm, a company, a corporation, a
partnership, a trust, or other entity. A Person, together with that Person's
Affiliates and Associates (as those terms are defined in Rule 12b-2 under
the Exchange Act), and any Persons acting as a partnership, limited
partnership, joint venture, association, syndicate, or other group (whether
or not formally organized), or otherwise acting jointly or in concert or in
a coordinated or consciously parallel manner (whether or not pursuant to any
express agreement), for the purpose of acquiring, holding, voting, or
disposing of securities of the Company with such Person, shall be deemed a
single "Person."
(i) POTENTIAL CHANGE IN CONTROL: shall be deemed to have occurred
if(i) the company enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control (ii) any Person (including
the Company) publicly announces an intention to take or to consider taking
actions that, if consummated, would constitute a Change in Control; or
(iii) the Board of Directors of the Company adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change in Control
has occurred.
(j) REVIEWING PARTY: shall mean 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 of Directors (including Special
Counsel referred to in Section 3) who is not a party to the particular Claim
for which Indemnitee is seeking indemnification.
(k) SPECIAL COUNSEL: shall mean special, independent counsel selected
by Indemnitee and approved by the Company (which approval shall not be
unreasonably withheld), and who has not otherwise performed services for the
Company or for Indemnitee within the last three years (other than as Special
Counsel under this Agreement or similar agreements).
(1) SUBSIDIARY: shall mean, with respect to any Person, any
corporation or other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly or
indirectly, by that Person.
(m) VOTING SECURITIES: shall mean any securities that vote generally
in the election of directors, in the admission of general partners, or in
the selection of any other similar governing body.
2. INDEMNIFICATION AND EXPENSE ADVANCEMENT.
(a) The Company shall indemnify Indemnitee and hold Indemnitee harmless to
the fullest extent permitted by law, as soon as practicable but in any event no
later than 30 days after written demand is presented to the Company, from and
against any and all Indemnifiable Liabilities. Notwithstanding the foregoing,
the obligations of the Company under this Section 2(a) shall be subject to the
condition that the Reviewing Party shall not have determined (in a written
opinion, in any case in which Special Counsel is involved) that Indemnitee is
not permitted to be indemnified under applicable law. Nothing contained in this
Agreement shall require any determination under this Section 2(a) to be made by
the Reviewing Party prior to the disposition or conclusion of the Claim against
the Indemnitee.
(b) If so requested by Indemnitee, the Company shall advance to Indemnitee
all Expenses incurred by Indemnitee (or, if applicable, reimburse Indemnitee for
any and all Expenses incurred by Indemnitee and previously paid by Indemnitee)
within ten business days after such request (an "Expense Advance") and delivery
by Indemnitee of an undertaking to repay Expense Advances if and to the extent
such undertaking is required by applicable law prior to the Company's Payment of
Expense Advances. The Company shall be obligated from time to time at the
request of Indemnitee to make or pay an Expense Advance in advance of the final
disposition or conclusion of any Claim. In connection with any request for an
Expense Advance, if requested by the Company, Indemnitee or Indemnitee's counsel
shall submit an affidavit stating that the Expenses to which the expense
Advances relate are reasonable. Any dispute as to the reasonableness of any
Expense shall not delay an Expense
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Advance by the Company. If, when, and to the extent that the Reviewing Party
determines that Indemnitee would not be permitted to be indemnified with respect
to a Claim under applicable law, the Company shall be entitled to be reimbursed
by Indemnitee and Indemnitee hereby agrees to reimburse the Company without
interest (which agreement shall be an unsecured obligation of Indemnitee) for
all related Expense Advances theretofore made or paid by the Company; provided,
however, that if Indemnitee has commenced legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee could 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 Expense Advance, and the Company shall be obligated to continue
to make Expense Advances, until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have been exhausted
or lapsed). If there has not been a Potential Change in Control or a Change in
Control, the Reviewing Party shall be selected by the Board of Directors of the
Company. If there has been a Potential Change in Control or a Change in Control,
the Reviewing Party shall be advised by or shall be Special Counsel referred to
in Section 3 hereof, if and as Indemnitee so requests. If there has been no
determination by the Reviewing Party or if the Reviewing Party determines that
Indemnitee substantively would not be permitted to be indemnified in whole or
part under applicable law, Indemnitee shall have the right to commence
litigation in any court in the Commonwealth of Massachusetts or the State of
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, 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.
3. CHANGE IN CONTROL. The Company agrees that, if there is a Potential
Change in Control or a Change in Control and if Indemnitee requests in writing
that Special Counsel advise the Reviewing Party or be the Reviewing Party, then
the Company shall not deny any indemnification payments (and Expense Advances
shall continue to be paid by the Company pursuant to Section 2(b)) that
Indemnitee requests or demands under this Agreement or any other agreement or
law now or hereafter in effect relating to Claims for Indemnifiable Events. The
Company further agrees not to request or seek reimbursement from Indemnitee of
any indemnification payment or Expense Advances unless, in either case, Special
Counsel has rendered its written opinion to the Company and Indemnitee that the
Company was not or is not permitted under applicable law to pay Indemnitee and
to allow Indemnitee to retain such indemnification payment or Expense Advances.
However, if Indemnitee has commenced legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee could be indemnified
under applicable law, any determination made by Special Counsel 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
Expense Advance, and the Company shall be obligated to continue to make Expense
Advances, until a final judicial determination is made with respect thereto (as
to which all rights of appeal therefore have been exhausted or lapsed). The
Company agrees to pay the reasonable fees of Special Counsel and to indemnify
Special Counsel against any and all expenses (including attorneys' fees),
claims, liabilities, and damages arising out of or relating to this Agreement or
Special Counsel's engagement pursuant hereto.
4. ESTABLISHMENT OF TRUST. In the event of a Potential Change in Control
or 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 equal to
all Indemnifiable Liabilities reasonably anticipated at the time to be incurred
in connection with any Claim. The amount to be deposited in the Trust pursuant
to the foregoing funding obligation shall be determined by the Reviewing Party.
The terms of the Trust shall provide that, upon a Change in Control, (i) the
Trust shall not be revoked or the principal thereof invaded, without the written
consent of Indemnitee; (ii) the trustee of the Trust shall advance, within ten
business days of a
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request by Indemnitee, any and all Expenses to Indemnitee (and Indemnitee hereby
agrees to reimburse the Trust under the circumstances in which Indemnitee would
be required to reimburse the Company for Expense Advances under 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 of the Trust 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 that Trust shall revert to the Company upon a final determination by
the Reviewing Party 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 of the Trust shall be chosen by Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under this
Agreement.
5. INDEMNIFICATION FOR ADDITIONAL EXPENSES. The Company shall indemnify
Indemnitee against any and all costs and expenses (including attorneys' and
expert witnesses' fees) and, if requested by Indenmitee, shall (within two
business days of that request) advance those costs and expenses to Indemnitee,
that are incurred by Indemnitee if Indemnitee, whether by formal proceedings or
through demand and negotiation without formal proceedings: (a) seeks to enforce
Indemnitee's rights under this Agreement, (b) seeks to enforce Indemnitee's
rights to expense advancement or indemnification under any other agreement or
provision of the Company's Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), or Bylaws, as amended (the "Bylaws"), now or
hereafter in effect relating to Claims for Indenmifiable Events, or (c) seeks
recovery under any directors' and officers' liability insurance Policies
maintained by the Company, in each case regardless of whether Indemnitee
ultimately prevails. To the fullest extent permitted by law, the Company waives
any and all rights that it may have to recover its costs and expenses from
Indemnitee.
6. PARTIAL INDEMNITY. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some, but not all, of
Indemnitee's Indemnifiable Liabilities, the Company shall indemnify Indemnittee
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 Event or in defense
of any issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith.
7. CONTRIBUTION.
(a) CONTRIBUTION PAYMENT. To the extent the indemnification provided
for under any provision of this Agreement is determined (in the manner
hereinabove provided) not to be permitted under applicable law, the Company,
in lieu of indemnifying Indemnitee, shall, to the extent permitted by law,
contribute to the amount of any and all Indemnifiable Liabilities incurred
or paid by Indemnitee for which such indemnification is not permitted. The
amount the Company contributes shall be in such proportion as is appropriate
to reflect the relative fault of Indemnitee, on the one hand, and of the
Company and any and all other parties (including officers and directors of
the Company other than Indemnitee) who may be at fault (collectively,
including the Company, the "Third Parties"), on the other hand.
(b) RELATIVE FAULT. The relative fault of the Third Parties and the
Indemnitee shall be determined (i) by reference to the relative fault of
Indemnitee as determined by the court or other governmental agency or
(ii) to the extent such court or other governmental agency does not
apportion relative fault, by the Reviewing Party (which shall include
Special Counsel) after giving effect to, among other things, the relative
intent, knowledge, access to information, and opportunity to prevent or
correct the relevant events, of each party, and other relevant equitable
considerations. The Company and Indemnitee agree that it would not be just
and equitable if contribution were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable
considerations referred to in this Section 7(b).
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8. BURDEN OF PROOF. In connection with any determination by the Reviewing
Party or otherwise as to whether Indemnitee is entitled to be indemnified under
any provision of this Agreement or to receive contribution pursuant to
Section 7 of this Agreement, to the extent permitted by law the burden of proof
shall be on the Company to establish that Indemnitee is not so entitled.
9. NO 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, or an entry
of an order of probation prior to judgment shall not create a presumption (other
than any presumption arising as a matter of law that the parties may not
contractually agree to disregard) 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. In addition, neither
the failure of the Reviewing Party to have made a determination as to whether
Indemnitee has met any particular standard of conduct or had any particular
belief, nor an actual determination by the Reviewing Party that Indemnitee has
not met such standard of conduct or did not have such belief, prior to the
commencement of legal proceedings by Indemnitee to secure a judicial
determination that Indemnitee should be indemnified under applicable law shall
be a defense to Indemnitee's claim or create a presumption that Indemnitee has
not met any particular standard of conduct or did not have any particular
belief.
10. NON-EXCLUSIVITY. The rights of Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Bylaws or Certificate
of Incorporation 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 Bylaws or Certificate of Incorporation and this
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits so afforded by that change. Indemnitee's
rights under this Agreement shall not be diminished by any amendment to the
Certificate of Incorporation or Bylaws, or of any other agreement or instrument
to which Indemnitee is not a party, and shall not diminish any other rights
which Indemnitee now or in the future has against the Company.
11. LIABILITY INSURANCE. Except as otherwise agreed to by the Company and
Indemnitee in a written agreement, to the extent the Company maintains an
insurance policy or policies providing directors' and officers' liability
insurance, Indemnitee shall be covered by that policy or those policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for any Company director or officer.
12. PERIOD OF LIMITATIONS. No action, lawsuit, or proceeding may be
brought against Indemnitee or Indemnitee's spouse, heirs, executors, or personal
or legal representatives, nor may any cause of action be asserted in any such
action, lawsuit, or proceeding, by or on behalf of the Company, after the
expiration of two years after the statute of limitations commences with respect
to Indemnitee's act or omission which gave rise to the action, lawsuit,
proceeding, or cause of action; provided, however, that, if any shorter period
of limitations is otherwise applicable to any such action, lawsuit, proceeding,
or cause of action, the shorter period shall govern.
13. AMENDMENTS. 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 provision of this Agreement shall be effective unless
in a writing signed by the party granting the waiver. 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 that waiver
constitute a continuing waiver.
14. OTHER SOURCES. Indemnitee shall not be required to exercise any rights
that Indemnitee may have against any other Person (for example, under an
insurance policy) or before Indemnitee enforces his rights under this Agreement.
However, to the extent the Company actually indemnifies Indemnitee or advances
him Expenses, the Company shall be subrogated to the rights of Indemnitee and
shall be
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entitled to enforce any such rights which Indemnitee may have against third
parties. Indemnitee shall assist the Company in enforcing those rights if it
pays his costs and expenses of doing so. If Indemnitee is actually indemnified
or advanced Expenses by any third party, then, for so long as Indemnitee is not
required to disgorge the amounts so received, to that extent the Company shall
be relieved of its obligation to indemnify Indemnitee or advance Indemnitee
Expenses.
15. BINDING EFFECT. 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
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 an officer or director of the Company or
another enterprise at the Company's request.
16. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term hereof, that provision shall be fully severable; this Agreement shall
be construed and enforced as if that illegal, invalid, or unenforceable
provision had never comprised a part hereof; and the remaining provisions shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of that illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Agreement a provision as similar
in terms to the illegal, invalid, or unenforceable provision as may be possible
and be legal, valid, and enforceable.
17. GOVERNING LAW. 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 that state without giving effect to the
principles of conflicts of laws.
18. HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
19. NOTICES. Whenever this Agreement requires or permits notice to be
given by one party to the other, such notice must be in writing to be effective
and shall be deemed delivered and received by the party to whom it is sent upon
actual receipt (by any means) of such notice. Receipt of a notice by the
Secretary of the Company shall be deemed receipt of such notice by the Company.
20. COMPLETE AGREEMENT. This Agreement constitutes the complete
understanding and agreement among the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings between the
parties with respect to the subject matter hereof.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but in making proof
hereof it shall not be necessary to produce or account for more than one such
counterpart.
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EXECUTED as of the date first written above.
ERGO SCIENCE CORPORATION
By:
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Name: Xxxxx X. Xxxx
TITLE: CHAIRMAN OF THE BOARD
PRESIDENT AND CHIEF EXECUTIVE OFFICER
INDEMNITEE
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Name:
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