EXHIBIT 10.01
FORM OF
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of
__________________, 20__, by and between Xxxxxx Scientific International Inc, a
Delaware corporation, along with any entities referred to in Section 2(c) below,
(the "Company"), and [NAME OF DIRECTOR] ("Director").
RECITALS
WHEREAS, highly competent persons have become more reluctant to serve
publicly-held corporations as directors 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 corporation.
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that, in order to attract and retain qualified individuals as members
of the Board, the Company will attempt to maintain on an ongoing basis, at its
sole expense, liability insurance to protect persons serving the Company and its
subsidiaries from certain liabilities. Although the furnishing of such insurance
has been a customary and widespread practice among United States based
corporations and other business enterprises, the Company believes that, given
current market conditions and trends, such insurance may be available to it in
the future only at higher premiums and with more exclusions. At the same time,
directors are being increasingly subjected to expensive and time-consuming
litigation relating to the business and affairs of corporations. The Company
recognizes that the cost of defending and otherwise participating in such
litigation is far greater than the financial benefits of serving as a Director.
Section 15(b)(3) of the Restated Certificate of Incorporation of the Company and
the Delaware General Corporation Law ("DGCL") expressly provide that the
indemnification provisions set forth therein are not exclusive and contemplate
that agreements may be entered into between the Company and members of the Board
(or parties serving at the request of the Board) with respect to
indemnification;
WHEREAS, the uncertainties relating to insurance have increased the
difficulty of attracting and retaining directors;
WHEREAS, the Board has determined that the increased difficulty in
attracting and retaining directors is detrimental to the best interests of the
Company's stockholders;
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, and to pay expenses on behalf of
directors to the fullest extent permitted by applicable law so that they will
serve or continue to serve the Company free from undue concern that they will
not be so indemnified;
WHEREAS, this Agreement is in furtherance of the Restated Certificate of
Incorporation of the Company, its Bylaws and any resolutions adopted pursuant
thereto, and the DGCL, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Director thereunder;
WHEREAS, the Company has entered into this Agreement and assumed the
obligations imposed on it hereby in order to induce Director to serve as a
director or officer of the Company,
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and the Company acknowledges that Director is relying upon this Agreement in
serving as a director or officer of the Company; and
WHEREAS, Director is willing to serve, continue to serve and to take on
additional service for or on behalf of the Company on the condition that he be
so indemnified;
NOW, THEREFORE, in consideration of the promises and the covenants
contained herein, the Company and Director do hereby covenant and agree as
follows:
1. SERVICES TO THE COMPANY. Director will serve or continue to serve, at the
will of the Company and its stockholders for so long as Director is duly elected
or appointed or until Director tenders his or her resignation.
2. DEFINITIONS. As used in this Agreement:
(a) "Beneficial Owner" shall have the meaning given to such term in Rule
13d-3 under the Securities Exchange Act of 1934.
(b) A "Change in Control" shall be deemed to occur upon the earliest to
occur after the date of this Agreement of any of the following events:
(i) Acquisition of Stock by Third Party. Any Person (as defined
below) is or becomes the Beneficial Owner, directly or indirectly, of securities
of the Company representing fifteen percent (15%) or more of the combined voting
power of the Company's then outstanding securities;
(ii) Change in Board of Directors. During any period of two (2)
consecutive years (not including any period prior to the execution of this
Agreement), individuals who at the beginning of such period constitute the Board
cease for any reason to constitute at least a majority of the members of the
Board;
(iii) Corporate Transactions. The effective date of a merger or
consolidation of the Company with any other entity, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity, including the parent corporation of such
surviving entity) at least 50% of the total voting power of the voting
securities of the surviving entity outstanding immediately after such merger or
consolidation and with the power to elect at least a majority of the board of
directors or other governing body of such surviving entity;
(iv) Liquidation. The approval by the stockholders of the Company of
a complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets;
and
(v) Other Events. There occurs any other event of a nature that
would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or a
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response to any similar item on any similar schedule or form) promulgated under
the Exchange Act (as defined below), whether or not the Company is then subject
to such reporting requirement.
(c) "Company" shall include, in addition to Xxxxxx Scientific
International Inc., any corporation, partnership, joint venture, limited
liability company, trust or other enterprise of which such Director is or was
serving as a director, officer, employee or agent at the request of the Company,
or any corporation which results from or survives a consolidation or merger with
Xxxxxx Scientific International Inc. as well as any corporation resulting from
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents, so that if Director is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, limited liability corporation, trust or
other enterprise, Director shall stand in the same position under the provisions
of this Agreement with respect to the resulting or surviving corporation as
Director would have with respect to such constituent corporation if its separate
existence had continued.
(d) "Disinterested Director" means a director of the Company who is not
and was not a party to the Proceeding as defined herein in respect of which
indemnification is sought by Director.
(e) "Enterprise" shall mean the Company and any other corporation,
partnership, joint venture, limited liability company, trust, employee benefit
plan or other enterprise of which Director is or was serving at the request of
the Company as a director, officer, employee, agent or fiduciary.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(g) "Expenses" shall include all reasonable attorneys' and accountants'
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, 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 being involved with, a Proceeding as defined in this
Agreement. Expenses also shall include 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. Expenses, however, shall not include
amounts paid in settlement by Director or the amount of judgments or fines
against Director.
(h) "Independent Counsel" means 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 five years has been, retained to represent: (i) the Company or
Director in any matter material to either such party 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 Director in an action to determine Director's rights under this Agreement.
(i) "Person" shall have the meaning as set forth in Sections 13(d) and
14(d) of the Exchange Act; provided, however, that Person shall exclude (i) the
Company or a person or entity that directly or indirectly controls, is
controlled by, or is under common control with, the Company, (ii) any trustee or
other fiduciary holding securities under an employee benefit plan of the
Company,
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and (iii) any corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their ownership of stock of
the Company.
(j) The term "Proceeding" shall include any threatened, pending or
completed action, suit, arbitration, alternate dispute resolution mechanism,
investigation (including but not limited to any internal corporate
investigation), inquiry, administrative hearing or any other actual, threatened
or completed proceeding, including any and all appeals, whether brought in the
right of the Company or otherwise and whether of a civil, criminal,
administrative or investigative nature, in which Director was, is, or will be a
party to, a witness in or otherwise participates in by reason of the fact that
Director is or was a director or officer of the Company, by reason of any action
taken by him or of any action on his part while acting as director or officer of
the Company, or by reason of the fact that he is or was serving at the request
of the Company as a director, officer, employee or agent of another Enterprise,
in each case whether or not serving in such capacity at the time any liability
or expense is incurred for which indemnification, reimbursement, or payment of
expenses can be provided under this Agreement; except one initiated by a
Director to enforce his rights under this Agreement. Any Director serving, in
any capacity, (i) another corporation of which a majority of the shares entitled
to vote in the election of its directors is held by the Company, or (ii) any
employee benefit plan of the Company or of any corporation referred to in clause
(i), shall be deemed to be doing so at the request of the Company.
(k) References to "fines" shall include, but are not limited to, any
excise tax assessed with respect to any employee benefit plan; references to
"serving at the request of the Company" shall include any service as a director,
officer, employee or agent of the Company which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner he reasonably believed to be in the best interests
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
Company" as referred to in this Agreement.
3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. A Third-Party Proceeding is a
Proceeding other than a Proceeding by or in the right of the Company to procure
a judgment in its favor. The Company shall indemnify Director in accordance with
the provisions of this Section 3 if Director is, or is threatened to be made, a
party to, a witness in or otherwise participates in any Third-Party Proceeding.
Pursuant to this Section 3, Director shall be indemnified against all Expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by Director or on his behalf in connection with such Third-Party Proceeding or
any claim, issue or matter therein, if Director acted in good faith and in a
manner Director 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 such conduct was unlawful.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The Company shall
indemnify Director in accordance with the provisions of this Section 4 if
Director is, or is threatened to be made, a party to, a witness in or otherwise
participates in any Proceeding by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section 4, Director shall be indemnified
against all Expenses actually and reasonably incurred by him or on his behalf in
connection with such Proceeding or any claim, issue or matter therein and to the
extent permitted by law, amounts paid in settlement, if Director acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company. No
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indemnification for Expenses shall be made under this Section 4 in respect of
any claim, issue or matter as to which Director 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, Director is fairly and reasonably
entitled to indemnification.
5. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY
SUCCESSFUL.
(a) In any Proceeding referred to in Section 4, if Director is not wholly
successful in such Proceeding, but has been adjudged to be liable to the Company
as to one or more but less than all claims, issues or matters in such
Proceeding, no indemnification shall be made in respect of any claim, issue or
matter as to which Director shall have been adjudged 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 to the Company, in view of all the
circumstances of the case, Director is fairly and reasonably entitled to such
indemnification. However, in any Proceeding referred to in Section 4, the
Company shall indemnify Director against all Expenses actually and reasonably
incurred by him or on his behalf and, to the extent permitted by law, amounts
paid in settlement, in connection with each claim, issue or matter as to which
Director is successful on the merits or has reached a settlement.
(b) To the extent that Director has been successful on the merits or
otherwise in defense of any Proceeding (including any Proceeding referred to in
Section 4), or in defense of any claim, issue or matter therein, Director shall
be indemnified and held harmless by the Company to the fullest extent authorized
by the DGCL, as the same exists or may hereafter be amended, against all
Expenses actually and reasonably incurred or suffered by Director or on
Director's behalf in connection therewith. Indemnification pursuant to this
Section 5(b) shall not require a determination pursuant to Section 10 of this
Agreement.
(c) For purposes of this Section 5 and without limitation, the termination
of any claim, issue or matter in a Proceeding in which Director is a defendant
by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.
6. ADDITIONAL INDEMNIFICATION.
(a) Notwithstanding any limitation in Sections 3, 4, or 5, the Company
shall indemnify Director to the extent permitted by law if Director is a party
to or threatened to be made a party to, a witness in or otherwise participates
in any Proceeding against all Expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by Director in connection with the
Proceeding (1) unless Director's conduct constitutes a breach of Director's duty
of loyalty to the Company or its stockholders (2) except for liability for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) except for liability under Section 174 of the
DGCL, or (4) except for liability relating to any transaction from which the
Director derived an improper benefit.
(b) For purposes of Section 6(a), the meaning of the phrase "to the extent
permitted by law" shall mean:
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i. the fullest extent permitted by the provision of the DGCL that
authorizes or contemplates additional indemnification by agreement, or the
corresponding provision of any amendment to or replacement of the DGCL; and
ii. the fullest extent authorized or permitted by any amendments to
or replacements of the DGCL adopted after the date of this Agreement that
increase the extent to which a corporation may indemnify its officers and
directors.
7. EXCLUSIONS. Notwithstanding any provision in this Agreement, the Company
shall not be obligated under this Agreement to make any payment for indemnity
including Expenses, judgments, fines and amounts paid in settlement to the
extent that the amount for which Director seeks indemnification, or a portion
thereof:
(a) has actually been made to or on behalf of Director under any insurance
policy, contract, agreement or otherwise; or
(b) is based upon an accounting of profits made from the purchase and sale
(or sale and purchase) by Director of securities of the Company in violation of
Section 16(b) of the Exchange Act or similar provisions of state statutory law
or common law; or
(c) in connection with any Proceeding (or any part of any Proceeding)
initiated or brought voluntarily by Director, including any Proceeding (or any
part of any Proceeding) initiated by Director against the Company or its
directors, officers or employees, unless (i) the Board authorized the Proceeding
(or any part of any Proceeding) prior to its initiation or (ii) the Company
provides the indemnification, in its sole discretion, pursuant to the powers
vested in the Company under applicable law.
8. NOTIFICATION OF INDEMNIFIABLE CLAIM. Director shall, as a condition precedent
to his right to be indemnified under this Agreement, give the Company notice in
writing as soon as practicable of any claim made against Director for which
indemnification will or could be sought under this Agreement. Director agrees
promptly to notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any Proceeding or matter which will or could be subject to
indemnification or payment of Expenses covered hereunder. The Secretary of the
Company shall, promptly upon receipt of such notice, advise the Board in writing
of such notice. The failure of Director to timely notify the Company shall not
relieve the Company of any obligation which it may have to the Director under
this Agreement or otherwise, unless such failure to provide timely notice
materially prejudices the Company. The omission to notify the Company will not
relieve the Company from any liability for indemnification which it may have to
Director otherwise than under this Agreement.
9. PAYMENT OF EXPENSES. Without regard to Director's ultimate entitlement
to indemnification under other provisions of this Agreement, the Company shall
pay the Expenses as incurred by Director or reimburse Director for his payment
of such Expenses in connection with any Proceeding within thirty (30) days after
the receipt by the Company of a written request for payment of expenses. If the
DGCL so requires, payment of Expenses by the Company under this Section 9 shall
be made only upon delivery to the Company of an undertaking ("Undertaking"). The
Undertaking shall constitute the Director's agreement that: (i) he shall repay
the Expenses paid by the Company to the extent that it is ultimately determined
by final judicial decision from which
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there is no further right to appeal that the Director is not entitled to be
indemnified by the Company; and (ii) that in consideration for the payment of
such expenses, the Company may, at its sole discretion, select counsel for
Director, assume the defense or otherwise participate in the defense of such
Proceeding. Payment of Expenses pursuant to this Section shall be unsecured and
interest free. Payment of Expenses shall be made without regard to Director's
ability to repay the expenses and without regard to Director's ultimate
entitlement to indemnification under the other provisions of this Agreement.
Such payment shall include any and all reasonable Expenses incurred pursuing an
action to enforce this right of payment of Expenses, including Expenses incurred
preparing and forwarding statements to the Company to support the payment
claimed. This Section 9 shall not apply to any claim for Expenses made by
Director for which indemnity is excluded pursuant to Section 7. Notwithstanding
anything else contained in this Section 9, to the extent that the Company is
prohibited by applicable law from making payment of Expenses to the Director
prior to the Company's determination that the Director is entitled to
indemnification, the Company shall not pay Expenses to the Director pursuant to
this Section. Nothing herein shall be construed to limit the Company's right to
seek damages from the Director, including but not limited to the full amount of
the Expenses paid by the Company hereunder. The selection by the Company of
defense counsel for the Director in connection with any Proceeding, shall be
made only with the approval of the Director, which approval shall not be
unreasonably withheld, upon the delivery to Director of written notice of the
Company's election to do so. After delivery of such notice, approval of such
counsel by Director and the retention of such counsel by the Company, the
Company will not be liable to Director under this Agreement for any fees of
counsel subsequently incurred by Director with respect to the same Proceeding,
provided that (i) Director shall have the right to employ his counsel in any
such Proceeding at Director's expense; and (ii) if (A) the employment of counsel
by Director has been previously authorized by the Company, (B) Director shall
have reasonably concluded that there may be a conflict of interest between the
Company and Director in the conduct of any such defense, or (C) the Company
shall not, in fact, have employed counsel to assume the defense of such
Proceeding, then the fees and expenses of Director's counsel shall be at the
expense of the Company.
10. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.
(a) Upon final disposition of a Proceeding for which indemnification is
sought pursuant to Section 3 or Section 4, Director shall submit promptly (and
in any event, no later than the applicable statute of limitations) to the Board
a written request for indemnification averring that he has met the applicable
standard of conduct set forth herein. Any indemnification made under this
Agreement pursuant to Section 3 or Section 4 shall be made by the Company only
as authorized in the specific case upon a determination that indemnification of
the Director is proper in the circumstances because Director has met the
applicable standard of conduct. Such determination shall be made in the
following manner: (i) if a Change in Control shall have occurred and the
Director is not a director at the time of such determination, by Independent
Counsel in a written opinion to the Board, a copy of which shall be delivered to
Director; and (ii) in any other circumstance: (A) by a majority vote of the
Disinterested Directors, even though less than a quorum of the Board, (B) by a
committee of Disinterested Directors designated by a majority vote of the
Disinterested Directors, even though less than a quorum of the Board, (C) if
there are no such Disinterested Directors or, if such Disinterested Directors so
direct, by Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to Director or (D) if so directed by the Board, by the
stockholders of the Company, and, if it is so determined that Director is
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entitled to indemnification, payment to Director shall be made within thirty
(30) days after such determination. Director shall cooperate with the person,
persons or entity making such determination with respect to Director's
entitlement to indemnification, 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 Director and reasonably necessary to such determination. Any costs
or expenses (including attorneys' fees and disbursements) incurred by Director
in so cooperating with the person, persons or entity making such determination
shall be borne by the Company (irrespective of the determination as to
Director's entitlement to indemnification) and the Company hereby indemnifies
and agrees to hold Director harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 10(a) hereof, the Independent
Counsel shall be selected as provided in this Section 10(b). If a Change in
Control shall not have occurred, the Independent Counsel shall be selected by
the Board within ten (10) days of submission of a written request by Director
for indemnification pursuant to Section 10(a), and the Company shall give
written notice to Director advising him of the identity of the Independent
Counsel so selected. If a Change in Control shall have occurred, the Independent
Counsel shall be selected by Director within ten (10) days of submission of a
written request by Director for indemnification pursuant to Section 10(a),
(unless Director shall request that such selection be made by the Board, in
which event the preceding sentence shall apply), and Director shall give written
notice to the Company advising it of the identity of the Independent Counsel so
selected. In either event, Director or the Company, as the case may be, may,
within ten (10) days after such written notice of selection shall have been
given, deliver to the Company or to Director, as the case may be, a written
objection to such selection; provided, however, that such objection may be
asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of "Independent Counsel" as defined in Section 2 of this
Agreement, and the objection shall set forth with particularity the factual
basis of such assertion. The objection must also include a proposed substitute
Independent Counsel. If objection including a proposed substituted Independent
Counsel is timely made, such substituted Independent Counsel shall serve as
Independent Counsel unless objected to within ten (10) days. An objection to the
substituted Independent Counsel may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of "Independent
Counsel" as defined in Section 2 of this Agreement, and the objection shall set
forth with particularity the factual basis of such assertion. If written
objection is made, the Independent Counsel or substituted Independent Counsel
proposed may not serve as Independent Counsel unless and until such objection is
withdrawn or a court has determined that such objection is without merit. If,
within thirty (30) days after submission by Director of a written request for
indemnification pursuant to Section 10(a) hereof, the parties have not agreed
upon the selection of the Independent Counsel, either the Company or Director
may petition a court of competent jurisdiction for resolution of any objection
which shall have been made by the Company or Director to the other's selection
of Independent Counsel and/or for the appointment as Independent Counsel of a
person selected by the Court or by such other person as the Court shall
designate, and the person with respect to whom all objections are so resolved or
the person so appointed shall act as Independent Counsel under Section 10(a)
hereof.
(c) In the event of a Change in Control, the Company shall, upon written
request by Director, create a trust for the benefit of Director (the "Trust")
and from time to time upon written request of Director shall fund the Trust in
an amount equal to all Expenses, judgments, fines and
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amounts paid in settlement reasonably anticipated at the time to be incurred in
connection with any Proceeding or any claim, issue or matter therein. The amount
to be deposited in the Trust pursuant to the foregoing funding obligation shall
be determined by the party required to make the determination that
indemnification of Director is proper pursuant to Section 10(a) hereof (the
"Reviewing Party"). The terms of the Trust shall provide that (i) the Trust
shall not be revoked or the principal thereof invaded without the written
consent of Director, (ii) the trustee of the Trust shall advance, within ten
(10) business days of a request by Director, any and all Expenses to Director
(and Director hereby agrees to reimburse the Trust under the circumstances in
which Director would be required to reimburse the Company for any Expenses
advanced 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 Director all amounts for which
Director 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 Director has received amounts, if any,
which fully satisfy the Company's obligation to indemnify Director under the
terms of this Agreement. The trustee of the Trust shall be chosen by Director.
Nothing in this Section 10(c) shall relieve the Company of any of its
obligations under this Agreement.
11. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) The submission of the Application for Indemnification to the Board
shall create a rebuttable presumption that the Director is entitled to
indemnification under this Agreement, and the Board, Independent Counsel, or
stockholders, as the case may be, may, at any time, specifically determine that
the Director is so entitled, unless it or they possess sufficient evidence to
rebut the presumption that Director has met the applicable standard of conduct.
If a determination shall have been made pursuant to this Agreement that Director
is entitled to indemnification, the Company shall be bound by such determination
in any judicial proceeding commenced pursuant to Section 12, absent (i) a
misstatement by Director of a material fact, or an omission of a material fact
necessary to make Director's statement not materially misleading, in connection
with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law. Neither the failure of the Company
(including by its directors or Independent Counsel) to have made a determination
prior to the commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because Director has met the
applicable standard of conduct, nor an actual determination by the Company
(including by its directors or Independent Counsel) that Director has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that Director has not met the applicable standard of conduct.
Moreover, the fact that the Company has paid the Director's Expenses pursuant to
Section 9 herein shall not create a presumption that Director has met the
applicable standard of conduct for indemnification.
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(b) 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) of itself adversely affect the right of Director to
indemnification or create a presumption that Director did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal Proceeding, that
Director had reasonable cause to believe that his conduct was unlawful.
(c) For purposes of any determination of good faith, Director shall be
deemed to have acted in good faith if Director's action is based on the advice
of legal counsel for the Company or on information or records given or reports
made to the Company by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Company. The
provisions of this Section 11(d) shall not be deemed exclusive or to limit in
any way the other circumstances in which the Director may be deemed to have met
the applicable standard of conduct set forth in this Agreement.
(d) To the extent legally permissible, the knowledge and/or actions, or
failure to act, of any director, officer, agent or employee of the Enterprise
shall not be imputed to Director for purposes of determining the right to
indemnification under this Agreement.
12. REMEDIES OF DIRECTOR.
(a) In the event that (i) a determination is made pursuant to Section 10
of this Agreement that Director is not entitled to indemnification under this
Agreement, (ii) payment of Expenses is not timely made pursuant to Section 9 of
this Agreement, or (iii) payment of indemnification pursuant to Section 3, 4,
5(a) or 6 of this Agreement is not made within thirty (30) days after a
determination has been made that Director is entitled to indemnification,
Director shall be entitled to an adjudication by a court of his entitlement to
such indemnification or payment of Expenses.
(b) In the event that Director successfully sues the Company for
indemnification or payment of Expenses, and is successful in whole or in part,
Director shall be entitled to be paid by
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the Company for the Expense of prosecuting such suit. If the Company sues
Director to recover Expenses paid and Director is successful in defending such
suit, in whole or in part, Director shall be entitled to be paid the Expense of
defending such suit.
(c) In the event that a determination shall have been made under this
Agreement that Director is not entitled to indemnification, any judicial
proceeding commenced pursuant to this Section shall be conducted in all respects
as a de novo trial on the merits and Director shall not be prejudiced by reason
of that adverse determination. In any judicial proceeding pursuant to this
Section, the Company shall have the burden of proving Director is not entitled
to indemnification or payment of Expenses, as the case may be.
(d) The Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court that the Company is bound by all the provisions of
this Agreement. The Company shall indemnify Director against any and all
Expenses and, if requested by Director, shall (within thirty (30) days after
receipt by the Company of a written request therefore) pay such Expenses to
Director, which are incurred by Director in connection with any action brought
by Director for indemnification or payment of Expenses from the Company under
this Agreement or under any directors' and officers' liability insurance
policies maintained by the Company, regardless of whether Director ultimately is
determined to be entitled to such indemnification, payment of Expenses or
insurance recovery, as the case may be.
13. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The rights of indemnification and to receive payment of Expenses as
provided by this Agreement shall not be deemed exclusive of any other rights to
which Director may at any time be entitled under applicable law, the Company's
Restated Certificate of Incorporation, the Company's Bylaws, any agreement, a
vote of stockholders or a resolution of directors, or otherwise. No amendment,
alteration or repeal of this Agreement or of any provision hereof shall limit or
restrict any right of Director under this Agreement in respect of any action
taken or omitted by such Director prior to such amendment, alteration or repeal.
To the extent that a change in Delaware law, whether by statute or judicial
decision, permits greater indemnification or payment of Expenses than would be
afforded currently under the Company's Restated Certificate of Incorporation,
Bylaws and this Agreement, it is the intent of the parties hereto that Director
shall enjoy by this Agreement the greater benefits so afforded by such change.
No right or remedy herein conferred is intended to be exclusive of any other
right or remedy, and every other right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy.
(b) The Company shall, from time to time, make the good faith
determination whether or not it is practicable for the Company to obtain and
maintain a policy or policies of insurance with reputable insurance companies
providing the directors, officers, employees, or agents of the Company with
coverage for losses from wrongful acts, or to ensure the Company's performance
of its indemnification obligations under this Agreement. Among other
considerations, the Company will weigh the costs of obtaining such insurance
coverage against the protection
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afforded by such coverage. To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors of the Company or
of any other corporation, partnership, joint venture, trust, employee benefits
plan or other enterprise which the Director serves at the request of the
Company, Director shall be covered by such policy or policies in such manner as
to provide the Director the same rights and benefits as are accorded to the most
favorably insured of the Company's directors. The Company shall thereafter take
all necessary or desirable action to cause such insurers to pay, on behalf of
the Director, 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
Director, 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.
14. DURATION OF AGREEMENT. This Agreement shall continue until and terminate
upon the later of: (a) 10 years after the date that Director shall have ceased
to serve as a director or officer of the Company or as a director, officer,
employee or agent of any other corporation, partnership, joint venture, limited
liability company, trust employee benefit plan or other enterprise which
Director served at the request of the Company ("Ten Year Anniversary Date"); or
(b) 1 year after the final termination of each and every Proceeding, commenced
prior to the Ten Year Anniversary Date.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the Company and
its successors and assigns and shall inure to the benefit of Director and his
heirs, executors and administrators.
16. SEVERABILITY. If any provision or provisions of this Agreement shall be held
to be invalid, illegal or unenforceable for any reason whatsoever: (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 or 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 (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 or unenforceable) shall be construed so as to give effect to
the intent manifested thereby.
17. ENTIRE AGREEMENT. Except as otherwise specified herein, 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.
18. EFFECTIVENESS OF AGREEMENT. This Agreement shall be effective as of the date
set forth on the first page and may apply to acts or omissions of Director which
occurred prior to such date if Director was an officer, director, employee or
other agent of the Company, or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
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partnership, joint venture, limited liability company, trust or other
enterprise, at the time such act or omission occurred, and shall continue to
exist after the rescission or restrictive modification of this Agreement with
respect to events occurring prior to such rescission or restrictive
modification.
19. MODIFICATION AND WAIVER. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the parties thereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions of this Agreement nor shall any
waiver constitute a continuing waiver.
20. NOTICES. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given (a) if
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (b) if sent by overnight courier
service (such as Federal Express):
If to Director, at the address indicated on the signature page of this
Agreement, or such other address as Director shall provide to the Company
If to the Company, to
---------------------------------
Attention: General Counsel
----------------------
----------------------
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or to any other address as may have been furnished to Director by the Company.
21. CONTRIBUTION. To the fullest extent permissible under applicable law, if the
indemnification provided for in this Agreement is unavailable to Director for
any reason whatsoever, the Company, in lieu of indemnifying Director, shall
contribute to the amount incurred by Director, whether for judgments, fines,
penalties, excise taxes, amounts paid or to be paid in settlement and/or for
Expenses, in connection with any claim relating to an indemnifiable event under
this Agreement, in such proportion as is deemed fair and reasonable in light of
all of the circumstances of such Proceeding in order to reflect (i) the relative
benefits received by the Company and Director as a result of the event(s) and/or
transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault
of the Company (and its directors, officers, employees and agents) and Director
in connection with such event(s) and/or transaction(s).
22. 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 rules. The Company and Director hereby irrevocably and
unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the Chancery Court of
the State of Delaware (the "Delaware Court"), and not in any other state or
federal court in the United States of America or any court in any other country,
(ii) consent to submit to the exclusive jurisdiction of the Delaware Court for
purposes of any action or proceeding arising out of or in connection with this
Agreement, (iii) waive any objection to the laying of venue of any such action
or proceeding in the
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Delaware Court, and (iv) 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.
23. 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. Only one
such counterpart signed by the party against whom enforceability is sought needs
to be produced to evidence the existence of this Agreement.
24. MISCELLANEOUS. Use of the masculine pronoun shall be deemed to include usage
of the feminine pronoun where appropriate. The headings of the paragraphs of
this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
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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By:
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[NAME OF DIRECTOR]
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ADDRESS OF DIRECTOR:
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