EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement, dated as of February 29, 2008, is made by
and between POINT BLANK SOLUTIONS, INC., a Delaware corporation (the
"Corporation") and ______________________ (the "Indemnitee").
RECITALS
A. The Corporation recognizes that competent and experienced persons are
increasingly reluctant to serve or to continue to serve as directors or
officers of corporations unless they are protected by comprehensive
liability insurance or indemnification, or both, due to increased exposure
to litigation costs and risks resulting from their service to such
corporations, and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors and officers;
B. The statutes and judicial decisions regarding the duties of directors and
officers are often difficult to apply, ambiguous, or conflicting, and
therefore fail to provide such directors and officers with adequate,
reliable knowledge of legal risks to which they are exposed or information
regarding the proper course of action to take;
C. The Corporation and Indemnitee recognize that plaintiffs often seek damages
in such large amounts and the costs of litigation may be so enormous
(whether or not the case is meritorious), that the defense and/or
settlement of such litigation is often beyond the personal resources of
directors and officers;
D. The Corporation believes that it is unfair for its directors and officers
to assume the risk of huge judgments and other expenses which may occur in
cases in which the director or officer received no personal profit and in
cases where the director or officer was not culpable;
E. The Corporation, after reasonable investigation, has determined that the
liability insurance coverage presently available to the Corporation may be
inadequate in certain circumstances to cover all possible exposure for
which Indemnitee should be protected. The Corporation believes that the
interests of the Corporation and its stockholders would best be served by a
combination of such insurance and the indemnification by the Corporation of
the directors and officers of the Corporation;
F. The Corporation's Restated Certificate of Incorporation requires the
Corporation to indemnify its directors and officers to the fullest extent
permitted by the Delaware General Corporation Law (the "DGCL"). The
Restated Certificate of Incorporation expressly provides that the
indemnification provisions set forth therein are not exclusive, and
contemplate that contracts may be entered into between the Corporation and
its directors and officers with respect to indemnification;
G. Section 145 of the DGCL ("Section 145"), under which the Corporation is
organized, empowers the Corporation to indemnify its officers, directors,
employees and agents by agreement and to indemnify persons who serve, at
the request of the Corporation, as the directors, officers, employees or
agents of other corporations or enterprises, and expressly provides that
the indemnification provided by Section 145 is not exclusive;
H. The Board of Directors has determined that contractual indemnification as
set forth herein is not only reasonable and prudent but also promotes the
best interests of the Corporation and its stockholders;
I. The Corporation desires and has requested Indemnitee to serve or continue
to serve as a director or officer of the Corporation and/or one or more
subsidiaries or affiliates of the Corporation free from undue concern for
unwarranted claims for damages arising out of or related to such services
to the Corporation and/or one or more subsidiaries or affiliates of the
Corporation; and
J. Indemnitee is willing to serve, continue to serve or to provide additional
service for or on behalf of the Corporation on the condition that he is
furnished the indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
SECTION 1. GENERALLY.
To the fullest extent permitted by the laws of the State of Delaware:
(a) The Corporation shall indemnify Indemnitee if Indemnitee was or is a
party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that Indemnitee
is or was or has agreed to serve at the request of the Corporation as
a director, officer, employee or agent of the Corporation, or while
serving as a director or officer of the Corporation, is or was serving
or has agreed to serve at the request of the Corporation as a
director, officer, employee or agent (which, for purposes hereof,
shall include a trustee, partner or manager or similar capacity) of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, or by reason of any action alleged
to have been taken or omitted in such capacity.
(b) The indemnification provided by this Section 1 shall be from and
against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in connection with such action,
suit or proceeding and any appeal therefrom, but shall only be
provided if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action, suit or
proceeding, had no reasonable cause to believe Indemnitee's conduct
was unlawful.
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(c) Notwithstanding the foregoing provisions of this Section 1, in the
case of any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by
reason of the fact that Indemnitee is or was a director, officer,
employee or agent of the Corporation, or while serving as a director
or officer of the Corporation, is or was serving or has agreed to
serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, no indemnification
shall be made in respect of any claim, issue or matter as to which
Indemnitee shall have been adjudged to be liable to the Corporation
unless, and only to the extent that, the Delaware Court of Chancery or
the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for such expenses which the Delaware
Court of Chancery or such other court shall deem proper.
(d) The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that Indemnitee
did not act in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that Indemnitee's conduct was
unlawful.
SECTION 2. SUCCESSFUL DEFENSE; PARTIAL INDEMNIFICATION. To the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1 hereof or in defense of any
claim, issue or matter therein, Indemnitee shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred in connection
therewith. For purposes of this Agreement and without limiting the foregoing, if
any action, suit or proceeding is disposed of, on the merits or otherwise
(including a disposition without prejudice), without (i) the disposition being
adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the
Corporation, (iii) a plea of guilty or nolo contendere by Indemnitee, (iv) an
adjudication that Indemnitee did not act in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Corporation, and (v) with respect to any criminal proceeding, an
adjudication that Indemnitee had reasonable cause to believe Indemnitee's
conduct was unlawful, Indemnitee shall be considered for the purposes hereof to
have been wholly successful with respect thereto.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Corporation for some or a portion of the expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection with any action, suit, proceeding or investigation, or in defense of
any claim, issue or matter therein, and any appeal therefrom but not, however,
for the total amount thereof, the Corporation shall nevertheless indemnify
Indemnitee for the portion of such expenses (including attorneys' fees),
judgments, fines or amounts paid in settlement to which Indemnitee is entitled.
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SECTION 3. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any
indemnification hereunder shall (unless otherwise ordered by a court) be made by
the Corporation unless a determination is made that indemnification of such
person is not proper in the circumstances because he or she has not met the
applicable standard of conduct set forth in Section 1(b) hereof. Any such
determination shall be made (i) by a majority vote of the directors who are not
and were not parties to, or threatened to be made a party to, the action, suit
or proceeding in question ("disinterested directors"), even if less than a
quorum, (ii) by a majority vote of a committee of disinterested directors
designated by majority vote of disinterested directors, even if less than a
quorum, (iii) by a majority vote of a quorum of the outstanding shares of stock
of all classes entitled to vote on the matter, voting as a single class, which
quorum shall consist of stockholders who are not at that time parties to the
action, suit or proceeding in question, (iv) by independent legal counsel, or
(v) by a court of competent jurisdiction; provided, however, that if a Change in
Control shall have occurred or indemnification is sought in connection with a
Company Authorized Proceeding, an indemnification determination hereunder shall
be made by independent legal counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee.
SECTION 4. ADVANCE PAYMENT OF EXPENSES; NOTIFICATION AND DEFENSE OF CLAIM.
(a) Expenses (including attorneys' fees) incurred by Indemnitee in
defending a threatened or pending civil, criminal, administrative or
investigative action, suit or proceeding, or in connection with an
enforcement action pursuant to Section 5(b), shall be paid by the
Corporation in advance of the final disposition of such action, suit
or proceeding within twenty (20) days after receipt by the Corporation
of (i) a statement or statements from Indemnitee requesting such
advance or advances from time to time, and (ii) an undertaking by or
on behalf of Indemnitee to repay such amount or amounts, only if, and
to the extent that, it shall ultimately be determined that Indemnitee
is not entitled to be indemnified by the Corporation as authorized by
this Agreement or otherwise. Such undertaking shall be accepted
without reference to the financial ability of Indemnitee to make such
repayment. Advances shall be unsecured and interest-free.
(b) Promptly after receipt by Indemnitee of notice of the commencement of
any action, suit or proceeding, Indemnitee shall, if a claim thereof
is to be made against the Corporation hereunder, notify the
Corporation of the commencement thereof. The failure to promptly
notify the Corporation of the commencement of the action, suit or
proceeding, or Indemnitee's request for indemnification, will not
relieve the Corporation from any liability that it may have to
Indemnitee hereunder, except to the extent the Corporation is
prejudiced in its defense of such action, suit or proceeding as a
result of such failure.
(c) After delivery of such notice, approval of such counsel by Indemnitee
and the retention of such counsel by the Corporation, the Corporation
will not be liable to Indemnitee under this Agreement for any fees of
counsel subsequently incurred by Indemnitee with respect to the same
action, suit or proceeding, provided that (1) Indemnitee shall have
the right to employ Indemnitee's own counsel in such action, suit or
proceeding at Indemnitee's expense and (2) if (i) the employment of
counsel by Indemnitee has been previously authorized in writing by the
Corporation, (ii) counsel to the Corporation or, in the event of a
Change of Control, Indemnitee's counsel, shall have reasonably
concluded that there may be a conflict of interest or position, or
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reasonably believes that a conflict is likely to arise, on any
significant issue between the Corporation and Indemnitee in the
conduct of any such defense or (iii) the Corporation shall not, in
fact, have employed counsel to assume the defense of such action, suit
or proceeding, then the fees and expenses of Indemnitee's counsel
shall be at the expense of the Corporation, except as otherwise
expressly provided by this Agreement. The Corporation shall not be
entitled, without the consent of Indemnitee, to assume the defense of
any claim brought by or in the right of the Corporation or as to which
counsel for the Corporation or, in the event of a Change in Control,
Indemnitee's counsel shall have reasonably made the conclusion
provided for in clause (ii) above.
(d) Notwithstanding any other provision of this Agreement to the contrary,
to the extent that Indemnitee is, by reason of Indemnitee's corporate
status with respect to the Corporation or any corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise which Indemnitee is or was serving or has agreed to serve
at the request of the Corporation, a witness or otherwise participates
in any action, suit or proceeding at a time when Indemnitee is not a
party in the action, suit or proceeding, the Corporation shall
indemnify Indemnitee against all expenses (including attorneys' fees)
actually and reasonably incurred by Indemnitee or on Indemnitee's
behalf in connection therewith.
SECTION 5. PROCEDURE FOR INDEMNIFICATION
(a) To obtain indemnification, Indemnitee shall promptly submit to the
Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to Indemnitee
and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Corporation shall,
promptly upon receipt of such a request for indemnification, advise
the Board of Directors in writing that Indemnitee has requested
indemnification. Indemnitee shall reasonably cooperate with the
person, persons or entity making such determination with respect to
Indemnitee's entitlement to indemnification. Any expenses incurred by
Indemnitee in so cooperating shall be borne by the Corporation
(irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Corporation shall indemnify and hold
Indemnitee harmless therefrom.
(b) The Corporation's determination whether to grant Indemnitee's
indemnification request shall be made promptly, and in any event
within 60 days following receipt of a request for indemnification
pursuant to Section 5(a). The right to indemnification as granted by
Section 1 of this Agreement shall be enforceable by Indemnitee in any
court of competent jurisdiction if the Corporation denies such
request, in whole or in part, or fails to respond within such 60-day
period. It shall be a defense to any such action (other than an action
brought to enforce a claim for the advance of costs, charges and
expenses under Section 4 hereof where the required undertaking, if
any, has been received by the Corporation) that Indemnitee has not met
the standard of conduct set forth in Section 1 hereof, but the burden
of proving such defense by clear and convincing evidence shall be on
the Corporation. Neither the failure of the Corporation (including its
Board of Directors or one of its committees, its independent legal
counsel, and its stockholders) to have made a determination prior to
the commencement of such action that indemnification of Indemnitee is
proper in the circumstances because Indemnitee has met the applicable
standard of conduct set forth in Section 1 hereof, nor the fact that
there has been an actual determination by the Corporation (including
its Board of Directors or one of its committees, its independent legal
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counsel, and its stockholders) that Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that Indemnitee has or has not met the applicable
standard of conduct. The Indemnitee's expenses (including attorneys'
fees) incurred in connection with successfully establishing
Indemnitee's right to indemnification, in whole or in part, in any
such proceeding or otherwise shall also be indemnified by the
Corporation.
(c) The Indemnitee shall be presumed to be entitled to indemnification
under this Agreement upon submission of a request for indemnification
pursuant to this Section 5, and the Corporation shall have the burden
of proof in overcoming that presumption in reaching a determination
contrary to that presumption. Such presumption shall be used as a
basis for a determination of entitlement to indemnification unless the
Corporation overcomes such presumption by clear and convincing
evidence.
(d) If it is determined that Indemnitee is entitled to indemnification,
payment shall be timely made after that determination.
SECTION 6. INSURANCE AND SUBROGATION.
(a) The Corporation shall use its best efforts to purchase and maintain
insurance on behalf of Indemnitee who is or was or has agreed to serve
at the request of the Corporation as a director or officer of the
Corporation, and may purchase and maintain insurance on behalf of
Indemnitee who is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, against any liability asserted against, and incurred by,
Indemnitee or on Indemnitee's behalf in any such capacity, or arising
out of Indemnitee's status as such, whether or not the Corporation
would have the power to indemnify Indemnitee against such liability
under the provisions of this Agreement. If the Corporation has such
insurance in effect at the time the Corporation receives from
Indemnitee any notice of the commencement of a proceeding, the
Corporation shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth
in the policy. The Corporation shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policy.
(b) In the event of any payment by the Corporation under this Agreement,
the Corporation shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee with respect to any
insurance policy, 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 Corporation to bring suit to
enforce such rights in accordance with the terms of such insurance
policy. The Corporation shall pay or reimburse all expenses actually
and reasonably incurred by Indemnitee in connection with such
subrogation.
(c) The Corporation shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder (including, but
not limited to, judgments, fines, ERISA excise taxes or penalties, and
amounts paid in settlement) if and to the extent that Indemnitee has
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otherwise actually received such payment under this Agreement or any
insurance policy, contract, agreement or otherwise.
SECTION 7. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following definitions shall apply:
(a) The term "action, suit or proceeding" shall be broadly construed and
shall include, without limitation, the investigation, preparation,
prosecution, defense, settlement, arbitration and appeal of, and the
giving of testimony in, any threatened, pending or completed claim,
action, suit or proceeding, whether civil, criminal, administrative or
investigative.
(b) The term "by reason of the fact that Indemnitee is or was a director,
officer, employee or agent of the Corporation, or while serving as a
director or officer of the Corporation, is or was serving or has
agreed to serve at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise" shall be
broadly construed and shall include, without limitation, any actual or
alleged act or omission to act.
(c) The term "expenses" shall be broadly and reasonably construed and
shall include, without limitation, all direct and indirect costs of
any type or nature whatsoever (including, without limitation, all
attorneys' fees and related disbursements, appeal bonds, other
out-of-pocket costs and reasonable compensation for time spent by
Indemnitee for which Indemnitee is not otherwise compensated by the
Corporation or any third party, provided that the rate of compensation
and estimated time involved is approved by the Board, which approval
shall not be unreasonably withheld), actually and reasonably incurred
by Indemnitee in connection with either the investigation, defense or
appeal of a proceeding or establishing or enforcing a right to
indemnification under this Agreement, Section 145 of the General
Corporation Law of the State of Delaware or otherwise.
(d) The term "judgments, fines and amounts paid in settlement" shall be
broadly construed and shall include, without limitation, all direct
and indirect payments of any type or nature whatsoever including,
without limitation, all penalties and amounts required to be forfeited
or reimbursed to the Corporation, as well as any penalties or excise
taxes assessed on a person with respect to an employee benefit plan).
(e) The term "Corporation" shall include, without limitation and in
addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who
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, trust, employee benefit plan
or other enterprise, shall stand in the same position under the
provisions of this Agreement with respect to the resulting or
surviving corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued.
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(f) The term "other enterprises" shall include, without limitation,
employee benefit plans.
(g) The term "serving at the request of the Corporation" shall include,
without limitation, any service as a director, officer, employee or
agent of the Corporation 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.
(h) A person who acted in good faith and in a manner such person
reasonably believed to be in the interest 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
Corporation" as referred to in this Agreement.
(i) "Change in Control" means a change in control of the Corporation
occurring after the Effective Date of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A (or in response to any similar item on any similar schedule or
form) promulgated under the Securities Exchange Act of 1934, as
amended (the "Act"), whether or not the Corporation is then subject to
such reporting requirement; provided, however, that, without
limitation, such a Change in Control shall be deemed to have occurred
if after the Effective Date:
(i) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Act), directly or indirectly, of securities of
the Corporation representing 15% or more of the outstanding
shares entitled to vote generally in the election of directors
without the prior approval of at least two-thirds of the members
of the Board of Directors in office immediately prior to the time
such person becomes such a beneficial owner; or
(ii) there occurs a proxy contest, or the Corporation is a party to a
merger, consolidation, sale of assets, plan of liquidation or
other reorganization not approved by at least two-thirds of the
members of the Board of Directors then in office, as a
consequence of which members of the Board of Directors in office
immediately prior to such transaction or event constitute less
than a majority of the Board of Directors thereafter; or
(iii) during any period of two consecutive years, other than as a
result of an event described in clause (b)(ii) of this Section 1,
individuals who at the beginning of such period constituted the
Board of Directors (including for this purpose any new director
whose election or nomination for election by the Corporation's
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the
beginning of such period) cease for any reason to constitute at
least a majority of the Board of Directors.
(j) "Effective Date" means the date on which the Indemnitee became an
officer or director of the Corporation.
(k) "Independent legal counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither
is, nor in the past five years has been, retained to represent: (i)
the Corporation, the Indemnitee or one of the other directors of the
Corporation in any matter material to any such party, or (ii) any
other party to the action, suit or proceeding giving rise to a claim
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for indemnification hereunder. Independent legal counsel shall be
selected by the Corporation, with the approval of Indemnitee, which
approval will not be unreasonably withheld; provided, however, that
independent legal counsel shall be selected by Indemnitee, with the
approval of the Board of Directors, which approval will not be
unreasonably withheld (i) from and after the occurrence of a Change in
Control, and (ii) in connection with an action, suit or proceeding by
or in the right of the Corporation authorized or not disapproved by
the Board of Directors alleging claims against Indemnitee that, if
sustained, reasonably might give rise to a judgment for money damages
of more than $1,000,000 and/or injunctive relief ("Company Authorized
Proceeding"). Anything herein to the contrary notwithstanding, if
Indemnitee and the Corporation are unable to agree with reasonable
promptness on the selection of the independent legal counsel, such
counsel shall be selected by lot from among: Morris, Nichols, Arsht &
Xxxxxxx LLP; Xxxxxxxx, Xxxxxx & Finger P.A.; and Potter Xxxxxxxx &
Corroon LLP; unless all such law firms do not qualify hereunder or
decline to serve, in which event such counsel shall be selected by lot
from among the following law firms: Simpson, Thacher & Xxxxxxxx LLP;
Debevoise & Xxxxxxxx LLP; DLA Piper; Xxxxx & Xxxxxxx LLP; and Spears &
Xxxx LLP. The Corporation shall contact these law firms in order of
their selection by lot, requesting each such firm to accept an
engagement hereunder until one of such firms qualifies hereunder and
accepts the engagement. The fees and costs of independent legal
counsel shall be paid by the Corporation.
SECTION 8. LIMITATION ON INDEMNIFICATION. Notwithstanding any other
provision herein to the contrary, the Corporation shall not be obligated
pursuant to this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses to
Indemnitee with respect to an action, suit or proceeding (or part
thereof) initiated by Indemnitee, except with respect to an action,
suit or proceeding brought to establish or enforce a right to
indemnification (which shall be governed by the provisions of Section
8(b) of this Agreement), unless such action, suit or proceeding (or
part thereof) was authorized or consented to by the Board of Directors
of the Corporation.
(b) Action for Indemnification. To indemnify Indemnitee for any expenses
incurred by Indemnitee with respect to any action, suit or proceeding
instituted by Indemnitee to enforce or interpret this Agreement,
unless Indemnitee is successful in establishing Indemnitee's right to
indemnification in such action, suit or proceeding, in whole or in
part, or unless and to the extent that the court in such action, suit
or proceeding shall determine that, despite Indemnitee's failure to
establish their right to indemnification, Indemnitee is entitled to
indemnity for such expenses; provided, however, that nothing in this
Section 8(b) is intended to limit the Corporation's obligation with
respect to the advancement of expenses to Indemnitee in connection
with any such action, suit or proceeding instituted by Indemnitee to
enforce or interpret this Agreement, as provided in Section 4 hereof.
(c) Section 16 Violations. To indemnify Indemnitee on account of any
proceeding with respect to which final judgment is rendered against
Indemnitee for payment or an accounting of profits arising from the
purchase or sale by Indemnitee of securities in violation of Section
16(b) of the Securities Exchange Act of 1934, as amended, or any
similar successor statute.
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(d) Non-compete and Non-disclosure. To indemnify Indemnitee in connection
with proceedings or claims involving the enforcement of non-compete
and/or non-disclosure agreements or the non-compete and/or
non-disclosure provisions of employment, consulting or similar
agreements the Indemnitee may be a party to with the Corporation, or
any subsidiary of the Corporation or any other applicable foreign or
domestic corporation, partnership, joint venture, trust or other
enterprise, if any.
SECTION 9. CERTAIN SETTLEMENT PROVISIONS. The Corporation shall have no
obligation to indemnify Indemnitee under this Agreement for amounts paid in
settlement of any action, suit or proceeding without the Corporation's prior
written consent, which shall not be unreasonably withheld. The Corporation shall
not settle any action, suit or proceeding in any manner that would impose any
fine or other obligation on Indemnitee without Indemnitee's prior written
consent, which shall not be unreasonably withheld.
SECTION 10. SAVINGS CLAUSE. If any provision or provisions of this
Agreement shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify Indemnitee as to
costs, charges and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including an action by
or in the right of the Corporation, to the full extent permitted by any
applicable portion of this Agreement that shall not have been invalidated and to
the full extent permitted by applicable law.
SECTION 11. CONTRIBUTION. 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 Indemnitee in
whole or in part, it is agreed that, in such event, the Corporation shall, to
the fullest extent permitted by law, contribute to the payment of Indemnitee's
costs, charges and expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, 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 or
others pursuant to indemnification agreements or otherwise; provided, that,
without limiting the generality of the foregoing, such contribution shall not be
required where such holding by the court is due to (i) the failure of Indemnitee
to meet the standard of conduct set forth in Section 1 hereof, or (ii) any
limitation on indemnification set forth in Section 6(c), 8 or 9 hereof.
SECTION 12. FORM AND DELIVERY OF COMMUNICATIONS. Any notice, request or
other communication required or permitted to be given to the parties under this
Agreement shall be in writing and either delivered in person or sent by
telecopy, telex, telegram, overnight mail or courier service, or certified or
registered mail, return receipt requested, postage prepaid, to the parties at
the following addresses (or at such other addresses for a party as shall be
specified by like notice):
If to the Corporation:
POINT BLANK SOLUTIONS, INC.
0000 X.X. 0xx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
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Attn: Chief Operating Officer and General Counsel
Facsimile: (000) 000-0000
If to Indemnitee:
[name]
[address]
Facsimile: _____________________
SECTION 13. SUBSEQUENT LEGISLATION. If the General Corporation Law of
Delaware is amended after adoption of this Agreement to expand further the
indemnification permitted to directors or officers, then the Corporation shall
indemnify Indemnitee to the fullest extent permitted by the General Corporation
Law of Delaware, as so amended.
SECTION 14. NONEXCLUSIVITY. The provisions for indemnification and
advancement of expenses set forth in this Agreement shall not be deemed
exclusive of any other rights which Indemnitee may have under any provision of
law, the Corporation's Certificate of Incorporation or ByLaws, in any court in
which a proceeding is brought, the vote of the Corporation's stockholders or
disinterested directors, other agreements or otherwise, and Indemnitee's rights
hereunder shall continue after Indemnitee has ceased acting as an agent of the
Corporation and shall inure to the benefit of the heirs, executors and
administrators of Indemnitee. However, no amendment or alteration of the
Corporation's Certificate of Incorporation or ByLaws or any other agreement
shall adversely affect the rights provided to Indemnitee under this Agreement
SECTION 15. ENFORCEMENT. The Corporation shall be precluded from asserting
in any judicial proceeding that the procedures and presumptions of this
Agreement are not valid, binding and enforceable. The Corporation agrees that
its execution of this Agreement shall constitute a stipulation by which it shall
be irrevocably bound in any court of competent jurisdiction in which a
proceeding by Indemnitee for enforcement of his rights hereunder shall have been
commenced, continued or appealed, that its obligations set forth in this
Agreement are unique and special, and that failure of the Corporation to comply
with the provisions of this Agreement will cause irreparable and irremediable
injury to Indemnitee, for which a remedy at law will be inadequate. As a result,
in addition to any other right or remedy Indemnitee may have at law or in equity
with respect to breach of this Agreement, Indemnitee shall be entitled to
injunctive or mandatory relief directing specific performance by the Corporation
of its obligations under this Agreement.
SECTION 16. INTERPRETATION OF AGREEMENT. It is understood that the parties
hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to Indemnitee to the fullest extent now or hereafter permitted
by law.
SECTION 17. ENTIRE AGREEMENT. This Agreement and the documents expressly
referred to herein constitute the entire agreement between the parties hereto
with respect to the matters covered hereby, and any other prior or
contemporaneous oral or written understandings or agreements with respect to the
matters covered hereby are expressly superceded by this Agreement.
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SECTION 18. MODIFICATION AND WAIVER. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
SECTION 19. SUCCESSOR AND ASSIGNS. All of the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the parties hereto and their respective successors, assigns,
heirs, executors, administrators and legal representatives. The Corporation
shall require and cause any direct or indirect successor (whether by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Corporation, by written agreement in form and substance
reasonably satisfactory to Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Corporation
would be required to perform if no such succession had taken place.
SECTION 20. SERVICE OF PROCESS AND VENUE. For purposes of any claims or
proceedings to enforce this agreement, the Corporation consents to the
jurisdiction and venue of any federal or state court of competent jurisdiction
in the states of Delaware and New Jersey, and waives and agrees not to raise any
defense that any such court is an inconvenient forum or any similar claim.
SECTION 21. GOVERNING LAW. This Agreement shall be governed exclusively by
and construed according to the laws of the State of Delaware, as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware. If a court of competent jurisdiction shall make a final
determination that the provisions of the law of any state other than Delaware
govern indemnification by the Corporation of its officers and directors, then
the indemnification provided under this Agreement shall in all instances be
enforceable to the fullest extent permitted under such law, notwithstanding any
provision of this Agreement to the contrary.
SECTION 22. EMPLOYMENT RIGHTS. Nothing in this Agreement is intended to
create in Indemnitee any right to employment or continued employment.
SECTION 23. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument, notwithstanding that
both parties are not signatories to the original or same counterpart.
SECTION 24. HEADINGS. The section and subsection headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered to
be effective as of the date first above written.
[Signature Page Follows]
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POINT BLANK SOLUTIONS, INC.
By___________________________________________
Name:________________________________________
Title:_______________________________________
INDEMNITEE:
By___________________________________________
Title:_______________________________________
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