Exhibit 10.49a
Corrected Version
INDEMNITY AGREEMENT
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This Agreement is made as of the _______ day of March, 2005 between XXXXXXX
& CO., a Delaware corporation (the "Corporation") and the undersigned (the
"Indemnitee"), with reference to the following facts:
A. The Indemnitee is currently serving as a director and/or has in the past
served as, is currently serving as or in the future may serve as an officer,
director, partner, employee, agent, trustee or fiduciary ( a "Company Agent") of
the Corporation and/or of one or more corporations now or hereafter owned,
whether wholly or partially, directly or indirectly, by the Corporation
(hereinafter referred to collectively as "Subsidiaries"). In each such case with
respect to service to a Subsidiary, the Indemnitee is so serving at the request
of the Corporation.
B. The By-Laws of the Corporation require indemnification of directors and
officers of the Corporation and persons who, at the request of the Corporation,
serve as directors and officers of another corporation, partnership, joint
venture, trust or other enterprise to the fullest extent permitted by the laws
of the State of Delaware.
C. The indemnification provisions of Section 145 of the Delaware General
Corporation Law and of the By-Laws of the Corporation specifically provide that
they are not exclusive and thereby contemplate that agreements may be entered
into between the Corporation and directors and officers of the Corporation or
others who serve as directors and/or officers of any Subsidiary with respect to
the indemnification of such persons.
D. In addition to the indemnification to which the Indemnitee is entitled
pursuant to the By-Laws of the Corporation, and as additional consideration for
the Indemnitee's service, the Corporation furnishes at its expense directors'
and officers' liability insurance ("D&O Insurance") protecting the Indemnitee in
connection with such service.
E. Recent developments with respect to the cost, terms and availability of
D&O Insurance and with respect to the application, amendment and enforcement of
statutory and by-law indemnification provisions generally have raised questions
concerning the adequacy and reliability of the protection afforded thereby.
F. In recent years, litigation seeking to impose liability on directors and
officers of corporations, particularly publicly held corporations, has become
commonplace. Such litigation is extremely expensive to defend, with defense
costs frequently amounting to hundreds of thousands, and sometimes millions, of
dollars. In many cases, costs of defense far exceed the means of individual
defendants, even if they are ultimately vindicated on the issue of individual
liability or wrongdoing. In addition, in view of the costs and uncertainties of
litigation, it is often prudent to settle such claims. While settlements are
frequently for only a small fraction of the amount
claimed, they may nonetheless exceed the financial resources of individual
defendants. Finally, the xxxxxxx of possible liability for millions of dollars
based on novel or unforeseen interpretations of law can be a significant
deterrent to persons accepting positions of responsibility with a public
corporation.
G. The Corporation desires that the Indemnitee remain free in his or her
service to the Corporation, or to any Subsidiary or to any other corporation,
partnership, joint venture, association, employee benefit plan, trust or other
enterprise or organization to which the Indemnitee renders services as a Company
Agent at the request of the Corporation (hereinafter an "Other Enterprise") to
exercise his or her best judgment in the performance of his or her duties
without undue concern for litigation claims for damages arising out of or
related to the performance of such duties and expenses related thereto.
NOW THEREFORE, in order to induce the Indemnitee to continue to serve at
the request of the Corporation as a Company Agent of the Corporation, any
Subsidiary or Other Enterprise, and in consideration for his or her continued
service, the Corporation hereby agrees to indemnify the Indemnitee as follows:
1. Indemnification of the Indemnitee.
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1.1 General Indemnity Obligation. The Corporation hereby agrees to hold
harmless and indemnify the Indemnitee, subject to Sections 1.3 and 2 hereof, for
any amount which the Indemnitee is or becomes legally obligated to pay because
of any claim or claims made against him or her, because of any act or omission
or neglect or breach of duty, including, without limitation, any actual or
alleged error or misstatement or misleading statement, which the Indemnitee
commits or suffers or permits to occur while acting in any capacity as a Company
Agent of the Corporation, any Subsidiary or any Other Enterprise, in any such
case whether the basis of such Proceeding, as such term is hereinafter defined,
is alleged action or inaction in an official capacity as such Company Agent or
in any other capacity while serving as a Company Agent and also in any such case
whether or not the Indemnitee is acting or serving in such Capacity at the date
hereof, at the time liability is incurred or at the time the claim is asserted.
The payments which the corporation shall be obligated to make hereunder shall
include, inter alia, all damages, liabilities, losses, costs, charges, expenses
(including fees and disbursements of attorneys, accountants and other experts),
judgments, penalties, and fines, excise taxes (including excise taxes arising
under the Employment Retirement Income Security Act ("ERISA")), costs of
attachment or similar bonds, amounts paid or to be paid in settlement that are
reasonably incurred by the Indemnitee in connection with the investigation,
defense, settlement or satisfaction of any threatened, pending or completed
action, suit, claim, investigation, arbitration or proceeding (whether civil,
criminal, administrative or investigative and whether before a court or
arbitrator or before or involving a governmental, administrative or private
entity), including without limitation an action by or in the right of the
Corporation, and appeals therefrom (a "Proceeding").
1.2 Indemnification for Serving as Witness. Notwithstanding any other
provision of this Agreement, the Corporation shall indemnify the Indemnitee
against all costs, charges and
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expenses (including fees and disbursements of attorneys, accountants and other
experts) actually and reasonably incurred by the Indemnitee in connection with
the preparation to serve or service as a witness in any Proceeding to which the
Indemnitee is not a party if such actual or proposed service as a witness arose
by reason of the Indemnitee having served as a Company Agent of the Corporation,
any Subsidiary or any Other Enterprise.
1.3 Affirmative Actions By the Indemnitee. Notwithstanding anything herein
to the contrary, except as provided in Section 6 with respect to Proceedings
seeking to enforce rights to indemnification, the Corporation shall indemnify
the Indemnitee in connection with a Proceeding (or a part thereof) initiated by
the Indemnitee only if such Proceeding (or part thereof) was authorized or is
later ratified by the Board of Directors of the Corporation.
1.4 Payment of Indemnification. The Corporation will from time to time pay
to the Indemnitee amounts to which he is entitled under the terms of this
Agreement notwithstanding the fact that the Indemnitee is indemnified pursuant
to any D&O Insurance purchased and maintained by the Corporation, any Subsidiary
or any Other Enterprise for the benefit of the Indemnitee or is otherwise
entitled to indemnification from any other source, provided the Indemnitee
complies with Sections 4 and 5 hereof.
2. Limitations of the Indemnity
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(a) No indemnity shall be paid by the Corporation pursuant to the
provisions of this Agreement if, prior to the date of payment thereof, a final
determination that such indemnification is not lawful shall have been made
pursuant to Section 6 hereof or full payment thereof has theretofore been made
to the Indemnitee pursuant to D&O Insurance or by the Corporation otherwise than
pursuant to this Agreement.
(b) In addition, no indemnity shall be paid by the Corporation pursuant to
Section 1.1 or 6 hereof:
(i) in respect of a claim based upon or attributable to the Indemnitee
gaining in fact any personal profit or advantage to which he was not
legally entitled;
(ii) for an accounting of profits made from the purchase or sale by
the Indemnitee of securities of the Corporation within the meaning of
Section 16(b) of the Securities Exchange Act of 1934;
(iii) on account of the Indemnitee's conduct if and only if it has
been finally determined pursuant to Section 6 hereof that (A) the
Indemnitee committed acts of active and deliberate dishonesty with actual
dishonest purpose and intent and (B) such acts are material or were
material to the cause of action against the Indemnitee with respect to
which indemnification is sought hereunder; or
(iv) for a violation of Section 174 of the Law.
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3. Advancement and Repayment of Expenses. Costs, charges and expenses (including
fees and disbursements of attorneys, accountants and other experts) incurred by
the Indemnitee in defending or investigating a Proceeding as set forth in
Section 1.1 hereof or preparing to serve or service as a witness in any
Proceeding under Section 1.2 hereof or in connection with any action initiated
pursuant to Section 6 hereof shall be paid by the Corporation when due in
advance of the final disposition of such matter, provided the Indemnitee shall
undertake in writing to repay any such advances in the event that a final
determination pursuant to Section 6 hereof is made that the Indemnitee is not
entitled to indemnification under this Agreement.
4. Subrogation. In the event of any payment under this Agreement to or on behalf
of the Indemnitee, the Corporation shall be subrogated to the extent of such
payment to all of the rights of recovery of the Indemnitee against any person
other than the Corporation or the Indemnitee in respect of the claim giving rise
to such payment and the Indemnitee shall execute all papers reasonably required
and shall do every thing reasonably necessary to secure such rights, including
the execution of such documents reasonably necessary to enable the Corporation
effectively to bring suit to enforce such rights.
5. Notification and Defense of Claim. The Indemnitee shall give to the
Corporation notice in writing as soon as practicable of any claim made against
him or her for which indemnity will or could be sought under this Agreement.
Notice to the Corporation shall be directed to Xxxxxxx & Co., 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: General Counsel (or such other
address as the Corporation shall designate in writing to the Indemnitee).
Failure of the Indemnitee to give such notice shall not relieve the Corporation
of its obligations hereunder, except to the extent the Corporation is actually
damaged as a result thereof.
With respect to a Proceeding of which the Corporation is so notified:
(a) the Corporation will be entitled to participate therein at its own
expense; and
(b) except as otherwise provided below in this Section 5, the Corporation
will be entitled to assume the defense thereof, with legal counsel reasonably
acceptable to the Indemnitee.
After notice from the Corporation to the Indemnitee of its election so to assume
such defense, the Corporation shall not be liable to the Indemnitee under this
Agreement for any legal or other expenses subsequently incurred by the
Indemnitee in connection with such Proceeding, other than reasonable costs of
investigation or as otherwise provided below in this Section 5 or in Section
7.4. The Indemnitee shall have the right to employ his own counsel in such
Proceeding but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof shall be at the expense
of the Indemnitee unless (i) the employment of counsel by the Indemnitee has
been authorized by the Corporation, (ii) counsel to the Indemnitee shall have
reasonably concluded that there may be a conflict of interest or position on any
significant issue between the Corporation and the Indemnitee in the conduct of
the defense of such action, or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such action, in each
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of which cases the fees and expenses of counsel for the Indemnitee shall be at
the expense of the Corporation, except as otherwise expressly provided by this
Agreement. The Corporation shall not be entitled to assume the defense of any
Proceeding brought by or on behalf of the Corporation or as to which counsel for
the Indemnitee shall have reasonably made the conclusion provided for in (ii)
above.
6. Determination of Right to Indemnification. If a claim for indemnification or
advancement of expenses pursuant to this Agreement is not paid in full by the
Corporation within 60 days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the Indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. In (i) any suit brought by the Indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the Indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
(ii) any suit by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking the Corporation shall be entitled to recover such
expenses upon a final adjudication that, such indemnification or advancement of
expenses is not lawful or is not permitted by the provisions of Section 2 of
this Agreement.. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
Indemnitee is proper in the circumstances, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel or its
stockholders) that indemnification is not lawful or is not permitted hereunder,
shall create a presumption, be considered a final determination for purposes of
Section 2(a) above or otherwise be considered as an indication that the
Indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the Indemnitee, be a defense to such suit. In any suit
brought by the Indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the Indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Section or otherwise, shall be on the
Corporation. The Corporation and Indemnitee agree that any action to determine
the rights and obligations of the Indemnitee and the Corporation under this
Agreement or an undertaking with respect to the advancement of expenses
hereunder shall be brought only in the Court of Chancery of the State of
Delaware, which shall be the sole jurisdiction and venue therefor; and each of
the parties hereby waives any objection thereto. A decision of such court shall
not constitute a final determination for purposes of this Agreement until such
decision has become final and is no longer subject to appeal.
7. Miscellaneous Provisions.
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7.1 Successors and Assigns. This Agreement shall be binding upon all
successors and assigns of the Corporation (including any transferee of all or
substantially all of its assets and any successor by merger or operation of law)
and shall inure to the benefit of the heirs, personal representatives,
executors, administrators or assigns of the Indemnitee.
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7.2 Savings Clause. Each of the provisions of this Agreement is a separate
and distinct agreement and independent of the others. If this Agreement or any
portion hereof shall be invalidated on any ground by any court of competent
jurisdiction, this Agreement shall be deemed to be modified to the least extent
possible to make it valid and enforceable and the Corporation shall nevertheless
indemnify the Indemnitee to the fullest extent permitted by any applicable
portion of this Agreement that shall not have been invalidated and to the
fullest extent permitted by applicable law.
7.3 Rights Not Exclusive; Continuation of Right of Indemnification. Nothing
herein shall be deemed to diminish or otherwise restrict the Indemnitee's rights
to indemnification under any provision of the Certificate of Incorporation or
By-Laws of the Corporation, any agreement, vote of stockholders or of
Disinterested Directors, applicable law or otherwise. This Agreement shall
continue until and terminate upon the later of (i) the tenth anniversary after
the Indemnitee has ceased to occupy any of the positions or have any of the
relationships described in Section 1.1 of this Agreement or (ii) the final
termination or resolution of all proceedings with respect to the Indemnitee
commenced during such 10 year period.
7.4 Obligations of Indemnitee to Cooperate. The Indemnitee shall cooperate
with the Corporation with respect to any Proceeding that is the subject of a
claim for indemnification hereunder as the Corporation may reasonably require
and with any person or entity making a determination of the Indemnitee's
entitlement to indemnification pursuant to Section 6(a) or 6(e) hereof. The
Indemnitee shall provide to the Corporation or the person or entity responsible
for making the Section 6(a) or 6(e) determination upon reasonable advance
request any documentation or information reasonably available to the Indemnitee
and necessary to (i) the Corporation with respect to any Proceeding or claim by
the Indemnitee for indemnification or (ii) to the person or entity responsible
for making the Section 6(a) or 6(e) determination with respect to such
determination, as the case may be. Any costs or expenses (including fees and
disbursements of attorneys, accountants and other experts) incurred by the
Indemnitee in so cooperating with the Corporation or with the person or entity
making such determination or in cooperating with the Corporation under Section 4
hereof shall be borne by the Corporation (irrespective of the determination as
to the Indemnitee's entitlement to indemnification under this Agreement) and the
Corporation hereby agrees to indemnify and hold harmless the Indemnitee
therefrom.
7.5 Contributions. In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for herein is held by a
court of competent jurisdiction to be unavailable to the Indemnitee in whole or
in part, the parties agree that, in such event, the Corporation shall contribute
to payment of the Indemnitee's losses in an amount that is just and equitable in
the circumstances, taking into account, among other things, contributions by
other directors and officers of the Corporation pursuant to Indemnity Agreements
or otherwise. The Corporation and the Indemnitee agree that, except for losses
incurred by an Indemnitee attributable to conduct on the part of the Indemnitee
described in Section 2(b), it would not be just and equitable for the Indemnitee
to contribute to the payment of losses arising out of any Proceeding in an
amount greater than: (i) in a case where the Indemnitee is a Director of the
Corporation, but not an officer of the Corporation, an amount equal to five (5)
times the amount of
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fees paid to the Indemnitee for serving as a director during the 12 months
preceding the commencement of such Proceeding; or (ii) in a case where the
Indemnitee is a Director and an officer of the Corporation, the amount set forth
in clause (i) plus 25% of the aggregate cash compensation paid to the Indemnitee
for service in such office(s) during said 12 months; or (iii) in a case where
the Indemnitee is an officer of the Corporation, 25% of the aggregate cash
compensation paid to the Indemnitee for service in such office(s) during said 12
months. The Corporation shall contribute to the payment of losses covered hereby
to the extent not payable by the Indemnitee pursuant to the contribution
provisions set forth in the preceding sentence.
7.6 Subsequent Amendment. No amendment, termination or repeal of Article VI
of the Corporation's By-Laws, Article EIGHTH of the Corporation's Certificate of
Incorporation, or any successor Articles thereto, or of any relevant provision
of the Delaware General Corporation Law or any other applicable laws shall
affect or diminish in any way the rights of the Indemnitee to indemnification or
the obligations of the Corporation arising under this Agreement whether the
alleged actions or conduct of the Indemnitee giving rise to the necessity of
such indemnification arose before or after any such amendment, termination or
repeal.
7.7 Governing Law. This Agreement shall be governed by and construed in
accordance with Delaware Law.
7.8 Headings. The headings of the Sections of this Agreement are inserted
for convenience only and shall not be deemed to constitute a part of this
Agreement or to affect the construction thereof.
7.9 Identical Counterparts. This Agreement may be executed in any number of
counterparts all of which taken together shall constitute one instrument.
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7.10 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 provision hereof (whether or not similar)
nor shall such waiver constitute a continuing waiver.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
XXXXXXX & CO.
By: _____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President,
Secretary and General Counsel
INDEMNITEE
_____________________________
Name: [Name of Executive]
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