EXHIBIT 10.01
FORM OF
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of [______________], between Celerity
Group, Inc., a Delaware corporation f/k/a Kinetics Holdings Corporation (the
"Company"), and [________________] ("Indemnitee").
WHEREAS, it is essential to the Company to retain and attract as directors
and officers the most capable persons available; and
WHEREAS, it is becoming increasingly more difficult for companies to
attract the most qualified and experienced people to serve as directors and
officers because of the tendency in the United States of increasing litigation
and other challenges by stockholders and others against directors and officers
of companies; and
WHEREAS, the Bylaws of the Company as in existence as of the date of this
Agreement require the Company to indemnify and advance expenses to its directors
and officers to the full extent permitted by law and the Indemnitee has been
serving and continues to serve as a director or officer of the Company in part
in reliance on such Bylaws;
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's continued and
effective service to the Company, and in part to provide Indemnitee with
contractual assurance that the protection set forth in the Bylaws will be
available to Indemnitee (regardless of, among other things, any amendment to or
revocation of such Bylaws or any change in the composition of the Company's
Board of Directors or change of control transaction relating to the Company),
and in order to induce Indemnitee to provide such services to the Company as a
director or officer, the Company wishes to provide in this Agreement for the
indemnification of and the advancing of expenses to Indemnitee to the fullest
extent (whether partial or complete) permitted by law and as set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and of Indemnitee's
continued service to the Company, and intending to be legally bound hereby, the
parties agree as follows:
1. DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the following meanings:
"Board" shall mean the Board of Directors of the Company.
"Change in Control" shall be deemed to have occurred if (i) any "person"
(as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as
amended), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company is or becomes the "Beneficial Owner" (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities of
the Company representing twenty percent (20%) or more of the total voting power
represented by the Company's then outstanding Voting Securities; (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; (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other entity, other than a merger or
consolidation that 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 eighty percent (80%) 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 (iv) the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company (in one
transaction or a series of transactions) of all or substantially all of the
Company's assets; provided, however, that a Change of Control shall not be
deemed to occur as a result of (w) the merger that results in the Company
becoming a subsidiary of KH LLC, a Delaware limited liability company, (x) the
distribution of the capital stock of Kinetic Systems, Inc. to KH LLC, (y) the
merger of one or more subsidiaries of the Company with and into the Company on
or around the time of the initial public offering of the common stock of the
Company or (z) a change in the composition of the Board in connection with the
initial public offering of the Company to satisfy the Xxxxxxxx-Xxxxx Act of 2002
and the corporate governance requirements established by the Nasdaq.
"Expenses" shall mean any expense, liability or loss, including without
limitation attorneys' fees, judgments, fines, ERISA excise taxes and penalties,
amounts paid or to be paid in settlement, any interest, assessments, or other
charges imposed thereon, and any federal, state, local, or foreign taxes imposed
as a result of the actual or deemed receipt of any payments under this
Agreement, paid or incurred in connection with investigating, defending, being a
witness in, or participating in (including, without limitation and with respect
to each of the foregoing, on appeal), or preparing for any of the foregoing, any
Proceeding relating to any Indemnifiable Event.
"Indemnifiable Event" shall mean any event or occurrence that takes place
either prior to, upon or after the execution of this Agreement, related to the
fact that Indemnitee is or was a director or an officer of the Company, or while
a director or officer is or was serving at the request of the Company as a
director, officer, employee, trustee, agent, or fiduciary of another foreign or
domestic corporation, partnership, joint venture, employee benefit plan, trust,
or other enterprise (each of the foregoing, a "Business Entity"), or was a
director, officer, employee, or agent of a Business Entity that was a
predecessor of the Company or of another Business Entity at the request of such
predecessor, or related to
anything done or not done by Indemnitee in any such capacity, whether or not the
basis of the Proceeding is alleged action in an official capacity as a director,
officer, employee, or agent or in any other capacity while serving as a
director, officer, employee, or agent of the Company or predecessor, as
described above.
"Independent Counsel" shall mean the person or body appointed in
connection with Section 3.
"Proceeding" shall mean any threatened, pending, or completed action,
suit, or proceeding (including without limitation an action by or in the right
of the Company) or any inquiry, hearing, or investigation, whether conducted by
the Company, a stockholder or bond holder of the Company, a governmental body,
or any other party, that Indemnitee in good faith believes might lead to the
institution of any such action, suit, or proceeding, whether civil, criminal,
administrative, investigative, or other.
"Reviewing Party" shall mean the person or body appointed in accordance
with Section 3.
"Voting Securities" shall mean any securities of the Company that vote
generally in the election of directors.
2. AGREEMENT TO INDEMNIFY
A. GENERAL AGREEMENT
In the event Indemnitee was, is, or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or other
participant in, a Proceeding by reason of (or arising in whole or in part out
of) an Indemnifiable Event, the Company shall indemnify Indemnitee from and
against any and all Expenses incurred in respect of such Indemnifiable Event to
the fullest extent permitted by law applicable (as the same may exist currently
or may hereafter be amended or interpreted). The Company hereby covenants and
agrees that, this Agreement shall remain in full force and effect for so long as
Indemnitee shall continue to serve as a director and/or as an executive officer
(including, without limitation, as a member of any committee of the Board of
Directors) of the Company, any predecessor of the Company or any subsidiary of
the Company, or is or was serving at the request of the Company as a director or
officer of another Business Entity, including service with respect to an
employee benefit plan, and thereafter so long as Indemnitee shall be subject to
any possible, threatened, pending or completed Proceeding arising out of,
relating to, based upon, in connection with or due to the fact that Indemnitee
was a director or an officer of the Company, any predecessor of the Company or
any subsidiary of the Company, or is or was serving at the request of the
Company as a director or officer of another Business Entity, including service
with respect to an employee benefit plan.
B. EXPENSE ADVANCES
If so requested by Indemnitee, the Company shall advance (within 20
business days of such request) any and all Expenses (including without
limitation Expenses incurred pursuant to Section 5 of this Agreement) to
Indemnitee (an "Expense Advance"); provided that, if and to the extent the
Reviewing Party (which determination shall be made by outside counsel if the
Reviewing Party is the Board or any committee thereof) 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,
and shall, reimburse the Company) for all such amounts theretofore paid in
connection with the Proceeding then in question. If Indemnitee has commenced or
commences legal proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under applicable law, as
provided in Section 4, 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 until a final judicial determination is made with respect
thereto (as to which all rights of appeal therefrom have been exhausted or have
lapsed). From and after the date that the Reviewing Party determines that the
Indemnitee would not be permitted to be indemnified under applicable law (which
determination shall be made by outside counsel if the Reviewing Party is the
Board or any committee thereof), the Company shall have no further obligation to
advance Expenses until such time that a court of competent jurisdiction makes a
final and non-appealable determination that Indemnitee is entitled to be
indemnified for such Proceeding. Indemnitee's obligation to reimburse the
Company for Expense Advances shall be unsecured and no interest shall be charged
thereon.
C. MANDATORY INDEMNIFICATION
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits in defense of any Proceeding
relating in whole or in part to an Indemnifiable Event or in defense of any
issue or matter therein, Indemnitee shall be indemnified against all Expenses
incurred in connection therewith.
D. PARTIAL INDEMNIFICATION
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of Expenses, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any or
all Proceedings relating in whole or in part to an Indemnifiable Event or in
defense of any issue or matter therein, including without limitation dismissal
without prejudice, Indemnitee shall be indemnified against all Expenses incurred
in connection therewith.
E. PROHIBITED INDEMNIFICATION
No indemnification pursuant to this Agreement shall be paid by the Company
on account of (i) any Proceeding in which judgment is rendered against
Indemnitee for an account of profits made from the purchase or sale by
Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions
of any federal, state, or local laws, or (ii) with respect to liability for
which payment is actually made to the Indemnitee under a valid and collectible
insurance policy or under a valid and enforceable indemnity clause, Bylaw or
agreement (other than this Agreement), except in respect of any liability in
excess of payment under such insurance, clause, Bylaw or agreement; (iii) if a
final and non-appealable decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful or against public
policy; or (iv) in connection with any proceeding (or part thereof) by the
Indemnitee against the Company or its directors, officers, employees or other
indemnitees, unless (1) such indemnification is expressly required to be made by
law, (2) the proceeding was authorized by the Board, (3) such indemnification is
provided by the Company, in its sole discretion, pursuant to the powers vested
in the Company under applicable law, (4) except as provided in Section 4 of this
Agreement or (5) the Proceeding is instituted after a Change in Control (other
than a Change in Control approved by a majority of the directors on the Board
who were directors immediately prior to such Change in Control) and Independent
Counsel has approved its initiation.
3. REVIEWING PARTY
Prior to any Change in Control, the Reviewing Party shall be 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 Proceeding
at issue; after a Change in Control, the Reviewing Party shall be the
Independent Counsel referred to below. With respect to all matters arising after
a Change in Control (other than a Change in Control approved by a majority of
directors on the Board who were directors immediately prior to such Change in
Control) concerning the rights of Indemnitee to indemnity payments and Expense
Advances under this Agreement or any other agreement or under applicable law or
the Company's Certificate of Incorporation or Bylaws now or hereafter in effect
relating to indemnification for Indemnifiable Events, the Company shall seek
advice only from Independent Counsel selected by Company and reasonably
acceptable to the Indemnitee (which approval shall not be unreasonably withheld,
conditioned or delayed), and who has not otherwise performed services for the
Company or the Indemnitee (other than in connection with indemnification
matters) within the last five years. The 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. Such counsel, among other things, shall render its written opinion to
the Company and Indemnitee as to whether and to what extent the Indemnitee
should 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 counsel against
any and all expenses (including without limitation attorneys' fees), claims,
liabilities, loss and damages arising out of or relating to this Agreement or
the engagement of Independent Counsel pursuant hereto.
4. INDEMNIFICATION PROCESS AND APPEAL
A. SUIT TO ENFORCE RIGHTS
Regardless of any action by the Reviewing Party, if Indemnitee has not
received full indemnification within twenty (20) business days after making a
demand in accordance with Section 2(c), Indemnitee shall have the right to
enforce its indemnification rights under this Agreement by commencing litigation
in any court in the State of California 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 determination by the Reviewing
Party or any aspect thereof, including without limitation the legal or factual
bases therefor. The Company hereby consents to service of process and to appear
in any such proceeding. Any determination by the Reviewing Party not challenged
by the Indemnitee shall be binding on the Company and Indemnitee. The remedy
provided for in this Section 4 shall be in addition to any other remedies
available to Indemnitee in law or equity.
B. DEFENSE TO INDEMNIFICATION, BURDEN OF PROOF, AND PRESUMPTIONS
It shall be a defense to any action brought by Indemnitee against the
Company to enforce this Agreement (other than an action brought to enforce a
claim) for Expenses incurred in defending a Proceeding in advance of its final
disposition that it is not permissible under applicable law or under this
Agreement for the Company to indemnify Indemnitee for the amount claimed. In
connection with any such action or any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the
burden of proving such a defense or determination shall be on the Company.
Neither the failure of the Reviewing Party or the Company (including its Board,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action by Indemnitee that indemnification of
the Indemnitee is proper under the circumstances because he has met the standard
of conduct set forth in applicable law, nor an actual determination by the
Reviewing Party or Company (including its Board, independent legal counsel, or
its stockholders) that the Indemnitee had not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct. For purposes of this
Agreement, the termination of any claim, action, suit, or proceeding, by
judgment, order, settlement (whether with or without court approval),
conviction, or upon a plea of nolo contendere, or its equivalent, shall not
create a presumption that Indemnitee did not meet any particular standard of
conduct or have any particular belief or that a court has determined that
indemnification is not permitted by applicable law.
5. INDEMNIFICATION FOR EXPENSES INCURRED IN ENFORCING RIGHTS
The Company shall indemnify Indemnitee against any and all Expenses that
are incurred by Indemnitee in connection with any action brought by Indemnitee
for (i) indemnification or advance payment of Expenses by the Company under this
Agreement or under applicable law or the Company's Certificate of Incorporation
or Bylaws now or hereafter in effect relating to indemnification for
Indemnifiable Events, and/or (ii) recovery under directors' and officers'
liability insurance policies maintained by the Company, unless such Indemnitee
would be prohibited from being indemnified under Section 2(E) of this Agreement.
In addition, the Company shall, if so requested by Indemnitee, advance the
foregoing Expenses to Indemnitee, subject to and in accordance with Section
2(B).
6. NOTIFICATION AND DEFENSE OF PROCEEDING
A. NOTICE
Promptly after receipt by Indemnitee of written notice of the commencement
of any Proceeding, Indemnitee will, if a claim in respect thereof is to be made
against the Company under this Agreement, notify the Company of the commencement
thereof; but the omission so to notify the Company will not relieve it from any
liability that it may have to Indemnitee, except as provided in Section 6(c).
B. DEFENSE
With respect to any Proceeding as to which Indemnitee notifies the Company
of the commencement thereof, the Company will be entitled to participate in the
Proceeding at its own expense and except as otherwise provided below, to the
extent the Company so wishes, it may assume the defense thereof with counsel
reasonably satisfactory to Indemnitee. After notice from the Company to
Indemnitee of its election to assume the defense of any Proceeding, the Company
will not be liable to Indemnitee under this Agreement or otherwise for any
Expenses subsequently incurred by Indemnitee under this Agreement with respect
to such defense except as otherwise provided below. Indemnitee shall have the
right to employ his own counsel in such Proceeding, but all Expenses related
thereto incurred after notice from the Company of its assumption of the defense
shall be at Indemnitee's expense unless: (i) the employment of counsel by
Indemnitee has been authorized by the Company, (ii) counsel to Indemnitee has
reasonably determined that there may be a conflict of interest between
Indemnitee and the Company in the defense of the Proceeding and such
determination has been affirmed by any then existing Independent Counsel, (iii)
after a Change in Control (other than a Change in Control approved by a majority
of the directors on the Board who were directors immediately prior to such
Change in Control), the employment of counsel by Indemnitee has been approved by
the Independent Counsel, or (iv) the Company shall not in fact have employed
counsel to assume the defense of such Proceeding, in each of which case all
Expenses of the Proceeding shall be borne by the Company. The Company shall not
be entitled to assume the defense of any Proceeding brought by or on behalf of
the Company or as to which Indemnitee shall have made the determination provided
for in (ii) above.
C. SETTLEMENT OF CLAIMS
The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any Proceeding effected without
the Company's written consent, provided, however, that if a Change in Control
has occurred (other than a Change in Control approved by a majority of the
directors on the Board who were directors immediately prior to such Change in
Control), the Company shall be liable for indemnification of Indemnitee for
amounts paid in settlement if the Independent Counsel has approved the
settlement. The Company shall not settle any Proceeding in any manner that would
impose any penalty or limitation on Indemnitee without Indemnitee's written
consent. Neither the Company nor Indemnitee will unreasonably withhold their
consent to any proposed settlement. The Company shall not be liable to indemnify
Indemnitee under this Agreement with regard to any judicial award if the Company
was not given a reasonable and timely opportunity, at its expense, to
participate in the defense of such action; the Company's liability hereunder
shall not be excused if participation in the Proceeding by the Company was
barred by this Agreement or to the extent that the Company's lack of such
opportunity did not prejudice the Company.
8. NON-EXCLUSIVITY
The rights of Indemnitee hereunder shall be in addition to any other
rights Indemnitee may have under the Company's Certificate of Incorporation,
Bylaws, applicable law, or otherwise. To the extent that a change in applicable
law (whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Company's Certificate of
Incorporation, Bylaws, applicable law, or this Agreement, it is the intent of
the parties that Indemnitee enjoy by this Agreement the greater benefits so
afforded by such change.
9. LIABILITY INSURANCE
The Company hereby represents and warrants that Exhibit A contains a
complete and accurate description of the policies of directors' and officers'
liability insurance purchased by the Company and that such policies are in full
force and effect as of the date of this Agreement. The Company hereby covenants
and agrees that for so long as this Agreement remains in effect, the Company
shall (i) maintain in full force and effect the directors' and officers'
liability insurance issued by the insurer(s), and having the policy number(s),
amount(s) and deductible(s) set forth on Exhibit A hereto and (ii) include the
Indemnitee as an additional insured on any policy containing more favorable
terms for the benefit of any other officer or director of the Company; provided
that the Company may substitute therefor policies of substantially equivalent
coverage and amounts containing terms no less favorable to Indemnitee; provided,
further, in no event shall the Company (or any successor or assign of the
Company) be required to maintain
any of the insurance policies listed on Exhibit A to the extent the annual
premiums for each such coverage in any year would exceed 200% of the highest
annual premium paid by the Company for such insurance policy in any of the three
years preceding such renewal date.
10. PERIOD OF LIMITATIONS
No legal action shall be brought and no cause of action shall be asserted
by or on behalf of the Company or any affiliate of the Company against
Indemnitee, Indemnitee's spouse, heirs, executors, or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action. Any claim or cause of action of the Company or its
affiliates shall be extinguished and deemed released unless asserted by the
timely filing of a legal action within such period; provided, however, that if
any shorter period of limitations is otherwise applicable to any such cause of
action, the shorter period shall govern.
11. AMENDMENT OF THIS AGREEMENT
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 binding unless in the form of a
writing signed by the party against whom enforcement of the waiver is sought,
and no such waiver shall operate as a waiver of any other provisions hereof
(whether or not similar), nor shall such waiver constitute a continuing waiver.
Except as specifically provided herein, no failure to exercise or any delay in
exercising any right or remedy hereunder shall constitute a waiver thereof.
12. SUBROGATION
In the event of 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 reasonably required and shall do
everything that may be reasonably necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to bring
suit to enforce such rights.
13. NO DUPLICATION OF PAYMENTS
The Company shall not be liable under this Agreement to make any payment
in connection with any claim made against Indemnitee to the extent Indemnitee
has otherwise received payment (under any insurance policy, Bylaw, or otherwise)
of the amounts otherwise indemnifiable hereunder.
14. 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 (including any
direct or
indirect successor by purchase, merger, consolidation, or otherwise to all or
substantially all of the business and/or assets of the Company), assigns,
spouses, heirs, executors, and personal and legal representatives. The Company
shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation, or otherwise) to all or substantially all, of the
business and/or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place. The
indemnification provided under this Agreement shall continue as to Indemnitee
for any action taken or not taken while serving in an indemnified capacity
pertaining to an Indemnifiable Event even though he may have ceased to serve in
such capacity at the time of any Proceeding.
15. SEVERABILITY
If any provision (or portion thereof) of this Agreement shall be held by a
court of competent jurisdiction to be invalid, void, or otherwise unenforceable,
the remaining provisions shall remain enforceable to the fullest extent
permitted by law. Furthermore, to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each portion of this Agreement
containing a provision held to be invalid, void, or otherwise unenforceable,
that is not itself invalid, void, or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, void, or
unenforceable.
16. 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 such State without giving effect to the principles of
conflicts of laws.
17. NOTICES
All notices, demands, and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered by hand, against receipt, or mailed, postage prepaid, certified or
registered mail, return receipt requested or by reputable, overnight courier
service, and addressed as follows:
COMPANY:
KINETICS GROUP, INC.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000-0000
ATTENTION: Chairman of the Board
With a copy to: KINETICS GROUP, INC.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000-0000
ATTENTION: General Counsel
INDEMNITEE:
[_________________________]
[_________________________]
[_________________________]
With a copy to:
___________________________
___________________________
___________________________
Attention: _______________
Notice of change of address shall be effective only when done in
accordance with this Section. All notices complying with this Section shall be
deemed to have been received on the earlier of the date of delivery or on the
third business day after mailing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of
the day and year first above written.
CELERITY GROUP, INC.,
a Delaware corporation
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
KINETICS GROUP, INC.,
a Delaware corporation
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
CELERITY GROUP, INC.,
a California corporation
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
INDEMNITEE:
_____________________________________________
[______Name___________]
Exhibit A
DESCRIPTION OF D&O INSURANCE
