INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT ("Agreement") is entered into on the 21st day
of April 1997 between CLUSONE ACQUISITION CORP., a Delaware corporation (the
"Company"), and ___________________(Indemnitee").
R E C I T A L
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The Indemnitee currently is serving as a director or officer, or both,
of the Company and the Company wishes the Indemnitee to continue in such
capacities. In order to induce the Indemnitee to continue to serve in such
capacities for the Company and in consideration for his continued service, the
Company wishes to provide for indemnification of the Indemnitee upon the terms
and conditions set forth below.
A G R E E M E N T
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It is agreed as follows:
1. The Company will pay on behalf of the Indemnitee, and his executors,
administrators or assigns, any amount which he is or becomes legally obligated
to pay because of any claim or claims made against him because of any act or
omission or neglect or breach of duty which he commits or suffers while acting
in his capacity as a director or officer of the Company. The payments which the
Company will be obligated to make hereunder shall include, INTER ALIA, damages,
judgments, settlements, costs of investigation and costs of defense of legal,
criminal or equitable actions, claims or proceedings and appeals therefrom,
including attorneys' fees of Indemnitee, costs of attachment or similar bonds,
costs of establishing a right to indemnification under this Agreement, and
fines, penalties or other obligations or fees imposed by law.
2. If a claim under this Agreement is not paid by the Company within 60
days after a written claim has been received by the Company, the claimant may at
any time thereafter bring suit against the Company to recover the unpaid amount
of the claim and if successful, in whole or in part, the claimant also shall be
entitled to receive from the Company claimant's reasonable attorneys' fees and
other expenses of prosecuting such claim.
3. 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 the
Indemnitee, who shall execute all papers reasonably required and shall do
everything that may be necessary or appropriate to secure such rights, including
the execution of such documents necessary or appropriate to enable the Company
effectively to bring suit to enforce such rights.
4. Notwithstanding anything contained herein to the contrary:
(a) The Company shall not be liable to Indemnitee for, nor
obligated to furnish advances in connection with, any loss, cost or expense of
Indemnitee resulting from his willful or negligent violation of Section 16(b) of
the Securities Exchange Act of 1934 or the Foreign Corrupt Practices Act of
1977.
(b) The Company shall not be liable to the Indemnitee for, and
shall not be obligated to furnish any advances except for repayable costs,
charges and expenses as stated below, in connection with, any loss, cost or
expense of Indemnitee as the direct result of a final judgment for money damages
payable to the Company or any affiliate for or on account of loss, cost or
expense directly or indirectly resulting form the Indemnitee's negligence or
misconduct within the meaning of Delaware General Corporation Law.
(c) Unless otherwise allowed by a court of competent
jurisdiction, the Company shall not be liable to Indemnitee for, and Indemnitee
undertakes to repay the Company for all advances which may have been made of,
expenses of investigation, defense or appeal of any matter the judgment of which
is excluded under subsection 4(b) next above.
(d) Unless otherwise determined by a court of competent
jurisdiction, a settlement of any suit, action or proceeding shall be presumed
to be an "expense" in mitigation of the expenses of continued litigation and not
the compromise of a judgment on the merits of the action, suit or proceeding.
(e) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 (the "Securities Act") may be permitted to directors
of the Company pursuant to the foregoing provisions, or otherwise, the Board of
Directors has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director of the Company in the wholly or
partially successful defense of any action, suit or proceeding) is asserted by
the Indemnitee in connection with Company securities which have been registered,
the Company will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it hereunder is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue. In effect, therefore, absent a court decision in the
individual case or controlling precedent, the provisions of the Agreement will
not apply to liabilities of the Indemnitee arising under the Securities Act
unless and only to the extent that the Indemnitee is successful in the defense
of the action, suit or proceeding in question.
(f) The Company shall not be liable under this Agreement to
make any payment in connection with any claim made against the Indemnitee:
(i) based upon or attributable to the Indemnitee or
any member of his immediate family gaining in fact any
personal profit or advantage to which he was not legally
entitled;
(ii) based upon or attributable to the dishonesty of
the Indemnitee seeking payment hereunder; provided that the
Indemnitee shall be protected under this Agreement as to any
claims upon which suit may be brought against him by reason of
any alleged dishonesty on his part, unless a judgment or other
final adjudication thereof adverse to the Indemnitee shall
establish that he committed acts of active and deliberate
dishonesty, with actual dishonest purpose and intent, which
acts were material to the cause of action so adjudicated;
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(iii) for bodily injury, sickness, disease or death
of any person, or damage to or destruction of any tangible
property, including loss of use thereof; or
(iv) for which indemnification under this Agreement
is determined by a final adjudication of a court of competent
jurisdiction to be unlawful and violative of public policy.
5. The Indemnitee, as a condition precedent to his right to be
indemnified under this Agreement, shall give to the Company notice in writing as
soon as practicable of any claim made against him for which indemnity will or
could be sought under this Agreement. Notice to the Company shall be directed to
the attention of the Corporate Secretary of the Company at the address of the
Company's executive offices (or such other address as the Company shall
designate in writing to the Indemnitee); notice shall be deemed received if sent
by prepaid mail properly addressed, the date of such notice being the date
postmarked. In addition, upon request made by the Corporation the Indemnitee
shall give the Company such information and cooperation as it may reasonably
require and as shall be within the Indemnitee's power.
6. Costs and expenses (including attorneys' fees) incurred by the
Indemnitee in defending or investigating any action, suit, proceeding or
investigation shall be paid by the Company in advance of the final disposition
of such matter. The Indemnitee agrees to repay any such advances in the event
that it is ultimately determined that the Indemnitee is not entitled to
indemnification under the terms of the Agreement. Notwithstanding the foregoing
or any other provision of this Agreement, no advance shall be made by the
Company if a determination is reasonably and promptly made by the board of
directors by a majority vote of a quorum of disinterested directors, or (if such
a quorum is not obtainable or, even if obtainable, a quorum of disinterested
directors so directs) by independent legal counsel, that, based upon the facts
known to the board or counsel at the time such determination is made, (a) the
Indemnitee knowingly and intentionally acted in bad faith, and (b) it is more
likely than not that it will ultimately be determined that the Indemnitee is not
entitled to indemnification under the terms of this Agreement.
7. Nothing contained herein shall be deemed to diminish or otherwise
restrict the Indemnitee's right to indemnification under any provision of the
articles of incorporation or bylaws of the Company or under Delaware law.
8. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
9. This Agreement shall be binding upon all successors and assigns of
the Company (including any transferee of all or substantially all of its assets
and any successor by merger or operation of law) and shall inure to the benefit
of the heirs, personal representatives and estate of Indemnitee.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
"COMPANY"
CLUSONE ACQUISITION CORP.,
an Delaware corporation
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Xxxxxx Xxxxxxxxxxx,
President
"INDEMNITEE"
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