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EXHIBIT 10.7
INDEMNIFICATION AGREEMENT
This Agreement made as of ___________, 2001, between L & C Spinco,
Inc., a Delaware corporation (the "Company") and ____________________, a
director, officer, employee or agent of the Company (the "Indemnitee").
WHEREAS, the Company and the Indemnitee are also aware of the exposure
to litigation of officers, directors, employees and agents of corporations as
such persons exercise their duties to the Company;
WHEREAS, the Company desires to continue to benefit from the services
of highly qualified and experienced persons such as the Indemnitee; and
WHEREAS, the Indemnitee desires to serve or to continue to serve the
Company as a director, officer, employee or agent, including service at the
request of the Company as a director, officer or trustee of another corporation,
joint venture, trust or other enterprise, for so long as the Company continues
to provide on an acceptable basis indemnification against certain liabilities
and expenses which may be incurred by the Indemnitee.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, the parties hereto agree as follows:
1. INDEMNIFICATION. The Company shall indemnify the Indemnitee with
respect to his activities as a director, officer or employee of the Company or
as a person who is serving or has served at the request of the Company ("Agent")
as a director, officer or trustee of another corporation, joint venture, trust
or other enterprise against expenses (including attorneys' fees, judgments,
fines, and amounts paid in settlement) actually and reasonably incurred by him
("Expenses") in connection with any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), to which he was, is, or is threatened to be made a party by
reason of facts which include his being or having been such a director, officer,
employee or agent to the extent of the highest and most advantageous to the
Indemnitee, as determined by the Indemnitee, of one or any combination of the
following:
(a) The benefits provided by the Company's Restated Certificate of
Incorporation (the "Certificate of Incorporation") or By-Laws of the Company
(the "By-Laws") in effect on the date hereof, a copy of the relevant portions of
which are attached hereto as Exhibit I;
(b) The benefits provided by the Certificate of Incorporation or
By-Laws or their equivalent in effect at the time Expenses are incurred by
Indemnitee;
(c) The benefits allowable under Delaware law in effect at the
date hereof;
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(d) The benefits allowable under the law of the jurisdiction under
which the Company exists at the time Expenses are incurred by the Indemnitee;
(e) The benefits available under liability insurance obtained by
the Company; and
(f) Such other benefits as may be otherwise available to
Indemnitee under then existing practices of the Company.
A combination of two or more of the benefits provided by (a) through
(f) shall be available only to the extent that the Applicable Document, as
hereafter defined, does not require that the benefits provided therein must be
exclusive of other benefits. The document or law providing for the benefits
listed in items (a) through (f) above is called the "Applicable Document" in
this Agreement. The Company hereby undertakes to assist Indemnitee, in all
proper and legal ways, to obtain the benefits selected by Indemnitee under items
(a) through (f) above.
2. INSURANCE. The Company shall maintain directors' and officers'
liability insurance for so long as Indemnitee's services are covered hereunder,
provided and to the extent that such insurance is available on a commercially
reasonable basis. In the event the Company maintains directors' and officers'
liability insurance, Indemnitee shall be named as an insured in such manner as
to provide Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company's officers or directors. However, the Company
agrees that the provisions hereof shall remain in effect regardless of whether
liability or other insurance coverage is at any time obtained or retained by the
Company; except that any payments made to, or on behalf of, Indemnitee under an
insurance policy shall reduce the obligations of the Company hereunder.
3. PAYMENT OF EXPENSES. At Indemnitee's request, the Company shall pay the
Expenses when incurred by Indemnitee upon receipt of an undertaking in the form
of Exhibit II attached hereto by or on behalf of Indemnitee to repay such
amounts so paid on his behalf if it shall ultimately be determined under the
Applicable Document that he is not entitled to be indemnified by the Company for
such Expenses. That portion of Expenses which represents attorneys' fees and
other costs incurred in defending any Proceeding shall be paid by the Company
within thirty (30) days of its receipt of such request, together with such
reasonable documentation evidencing the amount and nature of such Expenses as
the Company shall require, subject to its also receiving such undertaking.
4. ADDITIONAL RIGHTS. The indemnification provided in this Agreement shall
not be deemed exclusive of any other indemnification or rights to which
Indemnitee may be entitled and shall continue after Indemnitee has ceased to
occupy a position as an officer, director, employee or agent as described in
Paragraph 1 above with respect to Proceedings relating to or arising out of
Indemnitee's acts or omissions during his service in such position.
5. NOTICE TO COMPANY. Indemnitee shall provide to the Company prompt
written notice of any proceeding brought, threatened, asserted or commenced
against Indemnitee with respect to which Indemnitee may assert a right to
indemnification hereunder. Indemnitee shall not effect any settlement without
the Company's written consent,
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unless Indemnitee shall have determined to undertake his own defense in such
matter and has waived the benefits of this Agreement as to amounts payable with
respect to such settlement. The Company shall not settle any Proceeding to which
Indemnitee is a party in any manner which would impose any penalty on Indemnitee
without his written consent. Neither Indemnitee nor the Company will
unreasonably withhold consent to any proposed settlement. Indemnitee shall
cooperate to the extent reasonably possible with the Company and/or its
insurers, in attempts to defend and/or settle such Proceeding.
6. ASSUMPTION OF DEFENSE. Except as otherwise provided below, to the
extent that it may wish, the Company jointly with any other indemnifying party
similarly notified will be entitled to assume Indemnitee's defense in any
Proceeding, with counsel mutually satisfactory to Indemnitee and the Company.
After notice from the Company to Indemnitee of the Company's election so to
assume such defense, the Company will not be liable to Indemnitee under this
Agreement for Expenses subsequently incurred by Indemnitee in connection with
the defense thereof other than reasonable costs of investigation or as otherwise
provided below. Indemnitee shall have the right to employ counsel in such
Proceeding, but the fees and expenses of such counsel incurred after notice from
the Company of its assumption of the defense thereof shall be at Indemnitee's
expense unless:
(a) The employment of counsel by Indemnitee has been authorized by
the Company;
(b) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between Indemnitee and the Company in the conduct of the
defense of such Proceeding; or
(c) The Company shall not in fact have employed counsel to assume
the defense of such Proceeding, in each of which cases the fees and expenses of
counsel shall be at the expense of the Company. The Company shall not be
entitled to assume the defense of Indemnitee in any Proceeding brought by or on
behalf of the Company or as to which Indemnitee shall have made the conclusion
provided for in clause (b) above.
7. ARBITRATION AND ENFORCEMENT.
(a) In the event that any dispute or controversy shall arise
between Indemnitee and the Company with respect to whether the Indemnitee is
entitled to indemnification in connection with any Proceeding or with respect to
the amount of Expenses incurred, such dispute or controversy shall be submitted
by the parties to binding arbitration before a single arbitrator at Atlanta,
Georgia. If the parties cannot agree on a designated arbitrator fifteen (15)
days after arbitration is requested in writing by either of them, the
arbitration shall proceed before an arbitrator appointed by, and in accordance
with the rules then in effect of, one of the following bodies, which shall be
chosen by the initiator of such arbitration:
(i) the American Arbitration Association;
(ii) the CPR Institute for Dispute Resolution; or
(iii) Judicial Arbitration and Mediation Services, Inc.
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The award shall be rendered in such form that judgment may be entered
thereon in any court having jurisdiction thereof.
(b) Reasonable expenses incurred by Indemnitee in connection with
his request for indemnification hereunder shall be borne by the Company, unless
Indemnitee is determined according to the preceding paragraph of this Section 7
not to be entitled to indemnification for any liability or expense hereunder. In
the event that Indemnitee is a party to or intervenes in any proceeding in which
the validity of this Agreement is at issue or seeks an award in arbitration
pursuant to the preceding paragraph of this Section 7 to enforce his rights
under, or to recover damages for breach of, this Agreement, Indemnitee, if he
prevails in whole or in part in such action, shall be entitled to recover from
the Company and shall be indemnified by the Company against any expenses
actually and reasonably incurred by him.
(c) In any proceeding in which the validity or enforceability of
this Agreement is at issue, or in which Indemnitee seeks an award in arbitration
to enforce his rights hereunder, the Company shall have the burden of proving
that Indemnitee is not entitled to indemnification hereunder.
8. EXCLUSIONS. No indemnification, reimbursement or payment shall be
required of the Company hereunder:
(a) With respect to any claim as to which Indemnitee shall have
been adjudged by a court of competent jurisdiction to have acted with bad faith,
willful misfeasance, or willful disregard of his duties, except to the extent
that such court 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 indemnify for such expenses as the court shall
deem proper; or
(b) With respect to any obligation of Indemnitee under Section
16(b) of the Exchange Act.
9. EXTRAORDINARY TRANSACTIONS The Company covenants and agrees that, in
the event of any merger, consolidation or reorganization in which the Company is
not the surviving entity, any sale of all or substantially all of the assets of
the Company or any liquidation of the Company (each such event is hereinafter
referred to as an "extraordinary transaction"), the Company shall use its best
efforts to:
(a) Obtain insurance in Indemnitee's favor from a reputable
insurance carrier in reasonable amounts (if such insurance is available at
commercially reasonable rates) for a period of not less than one (1) year from
the date of such extraordinary transaction against any liability to which the
indemnification provided in this Agreement relates;
(b) Have the obligations of the Company under this Agreement
expressly assumed by the survivor, purchaser or successor, as the case may be,
in such extraordinary transaction; or
(c) Otherwise adequately provide for the satisfaction of the
Company's obligations under this Agreement, in a manner acceptable to
Indemnitee.
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10. NO PERSONAL LIABILITY. Indemnitee agrees that neither the Directors,
nor any officer, employee, representative or agent of the Company shall be
personally liable for the satisfaction of the Company's obligations under this
Agreement, and Indemnitee shall look solely to the assets of the Company for
satisfaction of any claims hereunder.
11. SEVERABILITY. If any provision, phrase, or other portion of this
Agreement should be determined by any court of competent jurisdiction to be
invalid, illegal or unenforceable, in whole or in part, and such determination
should become final, such provision, phrase or other portion shall be deemed to
be severed or limited, but only to the extent required to render the remaining
provisions and portions of the Agreement enforceable, and the Agreement as thus
amended shall be enforced to give effect to the intention of the parties insofar
as that is possible.
12. GOVERNING LAW. The parties hereto agree that this Agreement shall be
construed and enforced in accordance with and governed by the laws of the State
of Delaware.
13. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be considered to have been duly given if
delivered by hand and receipted for by the party to whom the notice, request,
demand or other communication shall have been directed, or mailed by registered
mail with postage prepaid:
(a) If to the Company, to:
L & C Spinco, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Secretary
(b) If to Indemnitee, to:
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14. TERMINATION. This Agreement may be terminated by either party upon not
less than sixty (60) days prior written notice delivered to the other party, but
such termination shall not in any way diminish the obligations of Company
hereunder with respect to Indemnitee's activities prior to the effective date of
termination. Indemnitee's right to indemnification and advancement of expenses
pursuant to this Agreement shall continue regardless of whether Indemnitee has
ceased for any reason to be a director of the Company and shall inure to the
benefit of the heirs of Indemnitee and the executors and administrators of
Indemnitee's estate.
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This Agreement is and shall be binding upon and shall inure to the
benefits of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
INDEMNITEE [SPINCO]
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Name: Name:
Title:
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EXHIBIT I
RESTATED CERTIFICATE OF INCORPORATION
ARTICLE X
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
BYLAWS
ARTICLE VII - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Right to Indemnification.
Each person who was or is made a party or is threatened to be
made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a director or an
officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer or trustee of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a
director, officer or trustee or in any other capacity while serving as a
director, officer or trustee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than such law permitted the
Corporation to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith; provided, however, that, except as
provided in Section 3 of this Article VII with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such indemnitee
in connection with a proceeding (or part thereof) initiated by such indemnitee
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only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
Section 2. Right to Advancement of Expenses.
In addition to the right to indemnification conferred in
Section 1 of this Article VII, an indemnitee shall also have the right to be
paid by the Corporation the expenses (including attorney's fees) incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 2 or otherwise.
Section 3. Right of Indemnitee to Bring Suit.
If a claim under Section 1 or 2 of this Article VII is not
paid in full by the Corporation within sixty (60) days after a written claim has
been received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be twenty
(20) days, the indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
(ii) in any suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the indemnitee
has not met any applicable standard for indemnification set forth in the
Delaware General Corporation Law. Neither the failure of the Corporation
(including its directors who are not parties to such action, a committee of such
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its directors who
are not parties to such action, a committee of such directors, independent legal
counsel, or its stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article VII or otherwise shall be on the Corporation.
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Section 4. Non-Exclusivity of Rights.
The rights to indemnification and to the advancement of
expenses conferred in this Article VII shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Corporation's certificate of incorporation, By-laws, agreement, vote of
stockholders or directors or otherwise.
Section 5. Insurance.
The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
Section 6. Indemnification of Employees and Agents of
the Corporation.
The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
Section 7. Nature of Rights.
The rights conferred upon indemnitees in this Article VII
shall be contract rights and such rights shall continue as to an indemnitee who
has ceased to be a director, officer or trustee and shall inure to the benefit
of the indemnitee's heirs, executors and administrators. Any amendment,
alteration or repeal of this Article VII that adversely affects any right of an
indemnitee or its successors shall be prospective only and shall not limit or
eliminate any such right with respect to any proceeding involving any occurrence
or alleged occurrence of any action or omission to act that took place prior to
such amendment or repeal.
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EXHIBIT II
FORM OF UNDERTAKING
THIS UNDERTAKING has been entered into by
______________________________ (hereinafter "Indemnitee") pursuant to an
Indemnification Agreement dated ________________, 2001 (the "Indemnification
Agreement") between L & C Spinco, Inc. (hereinafter "Company"), a Delaware
corporation and Indemnitee.
WITNESSETH:
WHEREAS, pursuant to the Indemnification Agreement, Company agreed to
pay Expenses (within the meaning of the Indemnification Agreement) as and when
incurred by Indemnitee in connection with any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, to which indemnitee was, is, or is threatened to be made a party
by reason of facts which include Indemnitee's being or having been a director,
officer or employee of the Company or a person who is serving or has served at
the request of the Company as a director, officer, or trustee of another
corporation, joint venture, trust or other enterprise;
WHEREAS, a claim has been asserted against the Indemnitee and the
Indemnitee has notified the company thereof in accordance with the terms of
Section 6 of the Indemnification Agreement (hereinafter the "Proceeding");
WHEREAS, Indemnitee believes that Indemnitee should prevail in this
proceeding and it is in the interest of both the Indemnitee and the Company to
defend against the claim against Indemnitee thereunder.
NOW THEREFORE, Indemnitee hereby agrees that in consideration of the
Company's advance payment of Indemnitee's Expenses incurred prior to a final
disposition of the proceeding, Indemnitee hereby undertakes to reimburse the
Company for any and all legal fees, costs and expenses paid by Company on behalf
of the Indemnitee prior to a final disposition of the Proceeding in the event
that Indemnitee is determined under the Applicable Document (within the meaning
of the Indemnification Agreement) not to be entitled to indemnification. Such
payments or arrangements for payments shall be consummated within ninety (90)
days after a determination that Indemnitee is not entitled to indemnification
and reimbursement pursuant to the Indemnification Agreement and applicable law.
IN WITNESS WHEREOF, the undersigned has set his/her hand this ____ day
of , 20___.
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Name:
