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EXHIBIT 10.3
FORM OF
INDEMNITY AGREEMENT
This Agreement is made as of the [DATE], by and between Ekco Group,
Inc., a Delaware corporation (the "Corporation"), and [NAME OF INDEMNITEE]
("Indemnitee") with reference to the following facts:
Indemnitee [is currently serving/has agreed to serve] as a
[director or] officer of the Corporation [or NAME OF SUBSIDIARY] and
the Corporation wishes Indemnitee to [continue/serve] in such capacity.
Indemnitee is willing, under certain circumstances, to continue in such
capacity.
In addition to the indemnification to which Indemnitee is or
may be entitled pursuant to the Bylaws of the Corporation, and as
additional consideration for Indemnitee's service, the Corporation
[has, in the past, furnished/furnishes] at its expense directors' and
officers' liability insurance protecting Indemnitee in connection with
such service. Only a limited amount of such insurance is currently in
effect.
Indemnitee has indicated that [he/she] does not regard the
indemnification provisions available under the Corporation's Bylaws and
insurance in effect to be adequate to protect [him/her] against the
risks associated with [his/her] service to the Corporation. [Indemnitee
may not be willing to continue in office in the absence of obtaining
insurance such as that which he/she has heretofore enjoyed.]
In order to induce Indemnitee to continue to serve as a [director or
officer] of the Corporation [or one or more of its Subsidiaries] and to
encourage Indemnitee's free exercise of [his/her] entrepreneurial judgment on
behalf of the Corporation and in consideration of [his/her] continued service,
the Corporation hereby agrees to indemnity Indemnitee as follows:
1. The Corporation will pay on behalf of Indemnitee and
[his/her] executors, administrators, or assigns, any amount which
[he/she] is, or becomes, legally obligated to pay because of any claim
or claims made against [him/her] after [EFFECTIVE DATE] because of any
past, present or future act or omission or neglect or breach of duty,
including any actual or alleged error or misstatement or misleading
statement, which [he/she] may commit or suffer while [he/she] was, is
or may hereafter be acting in [his/her] capacity as a director or
officer of the Corporation and/or one of its Subsidiaries or solely
because of [his/her] being a director or officer. The payments which
the Corporation will be obligated to make hereunder shall include,
INTER ALIA, damages, judgments, settlements and costs, cost of
investigation (excluding salaries of officers or employees of the
Corporation) and costs of defense of legal actions, claims or
proceedings and appeals therefrom, and costs of attachment or similar
bonds, provided however, that the Corporation shall not be obligated to
pay fines or other obligations or fees imposed by law or otherwise
which it is prohibited by applicable law from paying as indemnity or
for any other reason.
2. If a claim under this Agreement is not paid by the
Corporation, or on its behalf, within ninety days after a written claim
has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and if successful, in whole or in part, the
claimant shall be entitled to be paid also the expense of prosecuting
such claim.
3. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of
the rights of recovery of Indemnitee, who shall execute all papers
required and shall do everything that may be necessary to secure such
rights, including the execution of such documents necessary to enable
the Corporation effectively to bring suit to enforce such rights.
4. The Corporation shall not be liable under this
Agreement to make any payment in connection with any claim made against
Indemnitee:
(a) for which payment is actually made to Indemnitee
under a valid and collectible insurance policy, except with
respect to any excess beyond the amount of payment under such
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insurance;
(b) for which Indemnitee is entitled to indemnity
and/or payment by reason of having given notice of any
circumstance which might give rise to a claim under any
policies of insurance, the terms of which have expired prior
to the effective date of this Agreement;
(c) for which Indemnitee is indemnified by the
Corporation otherwise than pursuant to this Agreement;
(d) based upon or attributable to Indemnitee gaining
in fact any personal profit or advantage to which [he/she] was
not legally entitled;
(e) based upon Section 174 of the Delaware General
Corporation Law;
(f) for an accounting of profits made from the
purchase or sale by Indemnitee of securities of the
Corporation within the meaning of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any state statutory law or common law;
or
(g) brought about or contributed to by the dishonesty
of Indemnitee, provided that Indemnitee shall be protected
under this Agreement as to any claims upon which suit may be
brought against [him/her] by reason of any alleged dishonesty
on [his/her] part, unless a judgment or other final
adjudication thereof adverse to Indemnitee shall establish
that [he/she] committed (i) acts of active and deliberate
dishonesty, (ii) with actual dishonest purpose and intent, and
(iii) which acts were material to the cause of action so
adjudicated.
5. No costs, charges or expenses for which indemnity
shall be sought hereunder shall be incurred without the Corporation's
consent, which consent shall not be unreasonably withheld.
6. Action taken in Indemnitee's capacity as an Officer
or Director shall, without limitation, include any service as a
director or officer of the Corporation which imposes duties on, or
involves services by, such director or officer with respect to any
employee benefit plan, its participants, or beneficiaries or any
service at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise.
7. If Indemnitee is entitled under any provision of this
Agreement to indemnification by the Corporation for some or a portion
of the damages, judgements, settlements and costs incurred, but not for
the total amount thereof, the Corporation shall nevertheless indemnify
Indemnitee for the portion to which Indemnitee is entitled.
8. Indemnitee, as a condition precedent to [his/her]
right to be indemnified under this Agreement, shall give to the
Corporation notice in writing as soon as practicable of any claim made
against [him/her] for which indemnity will or could be sought under
this Agreement. Notice to the Corporation shall be directed to 00 Xxxx
Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxxxxx 00000, Attention: [President/Chief
Executive Officer] (or such other address as the Corporation shall
designate in writing to Indemnitee). Notice shall be deemed received if
sent by prepaid mail properly addressed, the date of such notice being
the date postmarked. In addition, Indemnitee shall give the Corporation
such information and cooperation as it may reasonably require and as
shall be within Indemnitee's power.
9. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
instrument.
10. Nothing herein shall be deemed to diminish or
otherwise restrict Indemnitee's right to indemnification under any
provision of the Certificate of Incorporation or Bylaws of the
Corporation, or under Delaware law.
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11. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify Indemnitee as to expenses,
judgments, fines and penalties with respect to any proceeding to the
full extent permitted by any applicable portion of this Agreement that
shall not have been invalidated or by any other applicable law.
12. This Agreement shall be binding upon any successor to
the Corporation.
13. This Agreement shall be governed by and construed in
accordance with Delaware law.
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.
EKCO GROUP, INC.
By
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[Title: ]
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Indemnitee
Date:
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SCHEDULE TO
EKCO GROUP, INC.
FORM OF INDEMNITY AGREEMENT
SCHEDULE
Each of the following persons has an Indemnity Agreement with Ekco
Group, Inc. which is in form of the foregoing Form of Indemnity Agreement except
that agreements executed between February 17, 1987 and April 29, 1988 bear the
former company name of Centronics Corporation and agreements executed before
February 17, 1987 bear the former company name of Centronics Data Computer
Corp.:
NAME POSITION WITH THE COMPANY DATE OF AGREEMENT
---- ------------------------- -----------------
J. Xxx Xxxxxxx Vice President, General Counsel & Secretary 10-14-97
Xxxxxx X. Xxxxxxx, III Director 02-04-97
Xxxxxx X. Xxxxx Vice President, Strategic Planning & 06-12-95
Business Development
Xxxxxx X. Xxxxxx Former Director 02-12-87
Xxxxx X. Xxxxxxxx Vice President, Information Technology & 02-16-99
Chief Information Officer
Xxxxxxx X. Xxxxxx Former Officer 10-26-94
Xxxxxx X. XxXxxxxxxx Executive Vice President, Finance & 10-26-94
Administration, & Chief Financial Officer
Xxxxxx X. Xxxx Former Director 08-03-87
Xxxxxx X. Xxx Former Officer 06-30-87
Xxxxxxx X. Xxxxxx Director 02-04-97
Xxxxx X. Xxxxxxxx Director 02-04-97
Xxxx X. Xxxxxx Former Officer 07-30-86
Xxxx X. Xxxxx Senior Vice President, Finance & 02-06-96
Administration, EKCO Housewares, Inc.
Xxxxxx X. Xxxx Former Director & Officer 07-30-86
Xxxxxxx X. Xxxxxxx Former Director 01-04-87
Xxxxxx X. Xxxxxxxxx, Xx. Xxxxxx Xxxxxxxx & Xxxxxxx 00-00-00
Xxxxxx X. Xxxxxxxxxx Former Director 08-18-87
T. Xxxxxxx Xxxx Former Director 05-18-93
Xxxxx X. XxXxxxxxx Vice President & Controller 07-30-86
Xxxxx X. Xxxxxxx Associate General Counsel & 01-01-92
Assistant Secretary
Xxxx X. Xxxxxxxx Former Officer 04-14-97
Xxxxxxx X. Xxxxxx Director 08-10-87
Xxxxxx X. Xxxx Director 02-14-89
Xxxxx X. Xxxxxxx Former Officer 02-04-97
Xxxxxx X. Xxxxxx Former Director 08-03-87
Xxxxxxx X. Xxxxxxx Chairman of the Board, Chief 05-25-95
Executive Officer & Director
Xxxx X. Xxxxxxxx Director 07-28-98
Xxxx X. Xxxxxxxx Director 03-15-88
Xxxxxxx X. Xxxxx Director 08-03-87
Xxxxxx Xxxxx Former Officer & Director 07-30-86
Xxxxxx Xxxxxxxx President, EKCO Housewares, Inc. 07-23-96
Xxxxxxx X. Xxxxxxxxx Executive Vice President 07-30-86
