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EXHIBIT 3L(*10-1)
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of the
day of _________, 1995, by and between DTE Energy Company, a Michigan
corporation ("DTE Energy"), and _________________________________, a [director,
officer, or director and officer] of DTE Energy (the "Indemnitee").
RECITALS
A. The Indemnitee is presently serving as a director of
DTE Energy and DTE Energy desires the Indemnitee to continue in such capacity.
The Indemnitee is willing, subject to certain conditions, including without
limitation the execution and performance of this Agreement by DTE Energy, to
continue in that capacity.
B. In addition to the indemnification to which the
Indemnitee is entitled under the Articles of Incorporation (the "Articles") or
By-Laws of DTE Energy in effect from time to time, DTE Energy has obtained at
its sole expense insurance protecting its officers and directors, including the
Indemnitee, against certain losses arising out of actual or threatened actions,
suits or proceedings to which such persons may be made or threatened to be made
parties. However, as a result of circumstances having no relation to, and
beyond the control of, DTE Energy and the Indemnitee, there can be no assurance
of the continuation, renewal or scope of that insurance.
Accordingly, and in order to induce the Indemnitee to continue
to serve in the Indemnitee's present capacity, DTE Energy and Indemnitee agree
as follows:
1. Continued Service. The Indemnitee will continue to serve as a
director of DTE Energy so long as the Indemnitee is duly elected and qualified
in accordance with the By-Laws of
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DTE Energy in effect from time to time or until the Indemnitee resigns in
writing in accordance with applicable law.
2. Initial Indemnity.
(a) DTE Energy shall indemnify the Indemnitee when the
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 and whether formal or informal, other
than an action by or in the right of DTE Energy, by reason of the fact that the
Indemnitee is or was a director, officer, employee or agent of DTE Energy, or
is or was serving at the request of DTE Energy as a director, officer, employee
or agent of another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise, whether for profit or not, against
expenses, including attorneys' fees, judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred by the Indemnitee in
connection with such action, suit or proceeding if the Indemnitee acted in good
faith and in a manner the Indemnitee reasonably believed to be in, or not
opposed to the best interests of DTE Energy or its shareholders, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe such conduct was unlawful. 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
the Indemnitee did not act in good faith and in a manner which the Indemnitee
reasonably believed to be in or not opposed to the best interests of DTE Energy
or its shareholders and, with respect to any criminal action or proceeding,
that the Indemnitee had reasonable cause to believe that such conduct was
unlawful.
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(b) DTE Energy shall indemnify the Indemnitee when the
Indemnitee was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of DTE
Energy to procure a judgment in its favor by reason of the fact that the
Indemnitee is or was a director, officer, employee, or agent of DTE Energy, or
is or was serving or had agreed to serve at the request of DTE Energy as a
director, officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise,
whether for profit or not, against expenses, including attorneys' fees and
amounts paid in settlement actually and reasonably incurred by the Indemnitee
in connection with the action or suit, if the Indemnitee acted in good faith
and in a manner the Indemnitee reasonably believed to be in, or not opposed to
the best interests of DTE Energy or its shareholders. Indemnification shall
not be made for a claim, issue or matter in which the Indemnitee has been found
liable to DTE Energy except to the extent the Court conducting the proceeding
or another court of competent jurisdiction shall determine upon application
that the Indemnitee is fairly and reasonably entitled to indemnification in
view of all relevant circumstances whether or not the Indemnitee met the
standard of conduct set forth in this paragraph (b) or was so adjudged liable
to DTE Energy; provided that if the Indemnitee was adjudged liable, such
indemnification is limited to reasonable expenses incurred.
(c) To the extent that the Indemnitee has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Section 2(a) or 2(b) hereof, or in defense of any
claim, issue or matter in the action, suit or proceeding, the Indemnitee shall
be indemnified against actual and reasonable expenses, including attorneys'
fees incurred by the
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Indemnitee in connection with the action, suit or proceeding and an action suit
or proceeding brought to enforce the mandatory indemnification provided in this
Section.
(d) Any indemnification under Section 2(a) or 2(b)
(unless ordered by a court) shall be made by DTE Energy only as authorized in
the specific case upon a determination in accordance with Section 4 hereof or
any applicable provision of the Articles of Incorporation of DTE Energy in
effect from time to time, By-Laws, other agreement, resolution or otherwise.
Such determination shall be made (i) by a majority vote of a quorum of the
Board of Directors of DTE Energy ("DTE Energy Board") consisting of directors
who are not parties or threatened to be made parties to such action, suit or
proceeding or (ii) if such a quorum is not obtainable, by a majority vote of a
committee duly designated by DTE Energy Board consisting solely of two or more
directors not at the time parties or threatened to be made parties to the suit,
action, or proceeding or (iii) by independent legal counsel (designated in the
manner provided below in this subsection (d)) in a written opinion or (iv) by
all independent directors who are not parties to such action, suit or
proceeding or (v) by the shareholders of DTE Energy (the "Shareholders"), but
shares held by directors, officers, employees or agents who are parties or
threatened to be made parties to the action suit or proceeding may not be
voted. Independent legal counsel shall be designated by DTE Energy Board or
its Committee in the manner prescribed in Section 2(d)(i) or 2(d)(ii);
provided, however, that if DTE Energy Board is unable or fails to so designate,
such designation shall be made by the Indemnitee subject to the approval of DTE
Energy (which approval shall not be unreasonably withheld). In the designation
of a committee under subsection 2(d)(ii) or the selection of independent legal
counsel by DTE Energy Board, all directors may participate. Independent legal
counsel shall not be any person or firm who, under
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the applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either DTE Energy or the Indemnitee in an
action to determine the Indemnitee's rights under this Agreement. DTE Energy
agrees to pay the reasonable fees and expenses of such independent legal
counsel and to indemnify fully such counsel against costs, charges and expenses
(including attorneys' and others' fees and expenses) actually and reasonably
incurred by such counsel in connection with this Agreement or the opinion of
such counsel pursuant hereto.
(e) If the Indemnitee is entitled to indemnification
under Section 2(a) or 2(b) for a portion of expenses, including reasonable
attorneys' fees, judgments, penalties, fines and amounts paid in settlement,
but not for the total amount, DTE Energy shall indemnify the Indemnitee for the
portion of the expenses, judgments, penalties, fines or amounts paid in
settlement for which the Indemnitee is entitled to be indemnified.
(f) DTE Energy shall pay or reimburse the reasonable
expenses (including attorneys' and others' fees and expenses) incurred by the
Indemnitee in the Indemnitee's capacity as a director or officer of DTE Energy
who is a party or threatened to be made a party to an action, suit or
proceeding in advance of the final disposition of such action, suit or
proceeding subject to the provisions of and in the manner prescribed by
Section 4(b) hereof.
(g) DTE Energy shall not adopt any amendment to the
Articles or By-Laws the effect of which would be to deny, diminish or encumber
the Indemnitee's rights to indemnity pursuant to the Articles, By-Laws, the
Business Corporation Act of the State of Michigan (the "BCA") or any other
applicable law as applied to any act or failure to act occurring in whole or in
part prior to the date (the "Effective Date") upon which the amendment was
approved by DTE Energy Board or the Shareholders, as the case may be. In the
event that DTE Energy shall adopt
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any amendment to the Articles or By-Laws the effect of which is to so deny,
diminish or encumber the Indemnitee's rights to indemnity, such amendment shall
apply only to acts or failures to act occurring entirely after the Effective
Date thereof unless the Indemnitee shall have voted in favor of such adoption
as a director or holder of record of DTE Energy's voting stock, as the case may
be.
(h) Upon application to a court by the Indemnitee
pursuant to Section 564c of the BCA, and a determination of such court that the
Indemnitee is fairly and reasonably entitled to indemnification, DTE Energy
shall pay to the Indemnitee the amount so ordered by the court.
3. Additional Indemnification.
(a) Pursuant to Section 565 of the BCA, without limiting
any right which the Indemnitee may have pursuant to Section 2 hereof, the
Articles, the By-Laws, the BCA, any policy of insurance or otherwise, but
subject to the limitations on the maximum permissible indemnity which may exist
under applicable law at the time of any request for indemnity hereunder
determined as contemplated by Section 3(a) hereof, DTE Energy shall indemnify
the Indemnitee against any amount which the Indemnitee is or becomes legally
obligated to pay relating to or arising out of any claim made against the
Indemnitee because of any act, failure to act or neglect or breach of duty,
including any actual or alleged error, misstatement or misleading statement,
which the Indemnitee commits, suffers, permits or acquiesces in while acting in
such capacity as an officer or director of DTE Energy, or, at the request of
DTE Energy, as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. The payments which DTE
Energy is obligated to make pursuant to this Section 3 shall include without
limitation damages, judgments, settlements and charges, costs, expenses,
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expenses of investigation and expenses of defense of legal actions, suits,
proceedings or claims and appeals therefrom, and expenses of appeal, attachment
or similar bonds; provided, however, that DTE Energy shall not be obligated
under this Section 3(a) to make any payment in connection with any claim
against the Indemnitee:
(i) to the extent of any fine or similar governmental imposition
which DTE Energy is prohibited by applicable law from paying which
results from a final, nonappealable order; or
(ii) to the extent based upon or attributable to the Indemnitee
gaining in fact a personal profit to which the Indemnitee was not
legally entitled, including without limitation profits made from the
purchase and sale by the Indemnitee of equity securities of DTE Energy
which are recoverable by DTE Energy pursuant to Section 16(b) of the
Securities Exchange Act of 1934, as amended, and profits arising from
transactions in publicly traded securities of DTE Energy which were
effected by the Indemnitee in violation of Section 10(b) of the
Securities Exchange Act of 1934, as amended, including Rule l0b-5
promulgated thereunder.
The determination of whether the Indemnitee shall be entitled to
indemnification under this Section 3(a) may be, but shall not be required to
be, made in accordance with Section 4(a) hereof. If that determination is so
made, it shall be binding upon DTE Energy and the Indemnitee for all purposes.
(b) Expenses (including without limitation attorneys' and
others' fees and expenses) incurred by Indemnitee in defending any actual or
threatened civil or criminal action,
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suit, proceeding or claim shall be paid by DTE Energy in advance of the final
disposition thereof as authorized in accordance with Section 4(b) hereof.
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4. Certain Procedures Relating to Indemnification and Advancement
of Expenses.
(a) Except as otherwise permitted or required by the BCA,
for purposes of pursuing the Indemnitee's rights to indemnification under
Section 2(a), 2(b) or 3(a) hereof, as the case may be, the Indemnitee may, but
shall not be required to, (i) submit to DTE Energy Board a sworn statement of
request for indemnification substantially in the form of Exhibit 1 attached
hereto and made a part hereof (the "Indemnification Statement") averring that
the Indemnitee is entitled to indemnification hereunder; and (ii) present to
DTE Energy reasonable evidence of all expenses for which payment is requested.
Submission of an Indemnification Statement to DTE Energy Board shall create a
presumption that the Indemnitee is entitled to indemnification under
Section 2(a), 2(b) or 3(a) hereof, as the case may be, and DTE Energy Board
shall be deemed to have determined that the Indemnitee is entitled to such
indemnification unless within 30 calendar days after submission of the
Indemnification Statement DTE Energy Board shall determine by vote of a
majority of the directors at a meeting at which a quorum is present, based upon
clear and convincing evidence (sufficient to rebut the foregoing presumption),
and the Indemnitee shall have received notice within such period in writing of
such determination, that the Indemnitee is not so entitled to indemnification.
No such determination shall be effective unless written notice thereof,
disclosing with particularity the evidence in support of DTE Energy Board's
determination, shall have been given to the Indemnitee within 30 calendar days
after submission of the Indemnification Statement. The foregoing notice shall
be sworn to by all persons who participated in the determination and voted to
deny indemnification. The provisions of this Section 4(a) are intended to be
procedural only and shall not affect the right of the Indemnitee to
indemnification under this Agreement, and any determination by DTE Energy
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Board that the Indemnitee is not entitled to indemnification and any failure to
make the payments requested in the Indemnification Statement shall be subject
to judicial review as provided in Section 6 hereof.
(b) For purposes of determining whether to authorize
advancement of expenses pursuant to Section 2(e) hereof, the Indemnitee shall
submit to DTE Energy Board a sworn statement of request for advancement of
expenses substantially in the form of Exhibit 2 attached hereto and made a part
hereof (the "Undertaking"), averring that (i) the Indemnitee, in good faith,
believes that the applicable standards of conduct set forth in Section 2(a),
2(b) or 3(a), as the case may be, have been met, (ii) the Indemnitee has
reasonably incurred or will reasonably incur actual expenses in defending an
actual civil or criminal action, suit, proceeding or claim and (iii) the
Indemnitee undertakes to repay such amount if it shall ultimately be determined
that the Indemnitee did not meet the applicable standard of conduct or is not
entitled to be indemnified by DTE Energy under this Agreement or otherwise.
For purposes of requesting advancement of expenses pursuant to Section 3(b)
hereof, the Indemnitee may, but shall not be required to, submit an Undertaking
or such other form of request as the Indemnitee determines to be appropriate
(an "Expense Request"). Upon receipt of an Undertaking or Expense Request, as
the case may be, such payments shall immediately be made by DTE Energy provided
that a determination is made that facts then known to those making the
determination would not preclude indemnification under the BCA. Such
determination shall be made within 10 calendar days of the date of receipt by
DTE Energy of the Expense Request and shall be made in the manner specified in
Section 2(d). No security shall be required in connection with any
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Undertaking or Expense Request and any Undertaking or Expense Request shall be
accepted without reference to the Indemnitee's ability to make repayment.
5. Subrogation; Duplication of Payments.
(a) In the event of payment under this Agreement, DTE
Energy shall be subrogated to the extent of such payment to all of the rights
of recovery of the 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 DTE Energy effectively to bring
suit to enforce such rights.
(b) DTE Energy shall not be liable under this Agreement
to make any payment in connection with any claim made against the Indemnitee to
the extent the Indemnitee has actually received payment (under any insurance
policy, the Articles, the By-Laws or otherwise) of the amounts otherwise
payable hereunder.
6. Enforcement.
(a) If a claim for indemnification made to DTE Energy
pursuant to Section 4 hereof is not paid in full by DTE Energy within 30
calendar days after a written claim has been received by DTE Energy, the
Indemnitee may at any time thereafter bring suit against DTE Energy to recover
the unpaid amount of the claim.
(b) In any action brought under Section 6(a) hereof, it
shall be a defense to a claim for indemnification pursuant to Section 2(a)
or 2(b) hereof that the Indemnitee has not met the standards of conduct which
make it permissible under the BCA for DTE Energy to indemnify the Indemnitee
for the amount claimed, but the burden of proving such defense shall be on DTE
Energy. Neither the failure of DTE Energy (including DTE Energy Board,
independent legal
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counsel or the Shareholders) to have made a determination prior to commencement
of such action that indemnification of the Indemnitee is proper in the
circumstances because the Indemnitee has met the applicable standard of conduct
set forth in the BCA, nor an actual determination by DTE Energy (including DTE
Energy Board, independent legal counsel or the Shareholders) that the
Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that the Indemnitee has not met the
applicable standard of conduct.
(c) It is the intent of DTE Energy that the Indemnitee
not be required to incur the expenses associated with the enforcement of the
Indemnitee's rights under this Agreement by litigation or other legal action
because the cost and expense thereof would substantially detract from the
benefits intended to be extended to the Indemnitee hereunder. Accordingly, if
it should appear to the Indemnitee that DTE Energy has failed to comply with
any of its obligations under the Agreement or in the event that DTE Energy or
any other person takes any action to declare this Agreement void or
unenforceable, or institutes any action, suit or proceeding designed (or having
the effect of being designed) to deny, or to recover from, the Indemnitee the
benefits intended to be provided to the Indemnitee hereunder, DTE Energy
irrevocably authorizes the Indemnitee from time to time to retain counsel of
the Indemnitee's choice, at the expense of DTE Energy as hereafter provided, to
represent the Indemnitee in connection with the initiation or defense of any
litigation or other legal action, whether by or against DTE Energy or any
director, officer, stockholder or other person affiliated with DTE Energy, in
any jurisdiction. Regardless of the outcome thereof, DTE Energy shall pay and
be solely responsible for any and all costs, charges and expenses, including
without limitation attorneys' and others' fees and expenses,
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reasonably incurred by the Indemnitee (i) as a result of DTE Energy's failure
to perform this Agreement or any provision thereof or (ii) as a result of DTE
Energy or any person contesting the validity or enforceability of this
Agreement or any provision thereof as aforesaid.
7. Merger or Consolidation.
In the event that DTE Energy shall be a constituent
corporation in a consolidation, merger or other reorganization, DTE Energy, if
it shall not be the surviving, resulting or other corporation therein, shall
require as a condition thereto the surviving, resulting or acquiring
corporation to agree to indemnify the Indemnitee to the full extent provided in
this Agreement. Whether or not DTE Energy is the resulting, surviving or
acquiring corporation in any such transaction, the Indemnitee shall also stand
in the same position under this Agreement with respect to the resulting,
surviving or acquiring corporation as the Indemnitee would have with respect to
DTE Energy if its separate existence had continued.
8. Nonexclusivity and Severability.
(a) The right to indemnification provided by this
Agreement shall not be exclusive of any other rights to which the Indemnitee
may be entitled under the Articles, By-Laws, the BCA, any other statute,
insurance policy, agreement, vote of shareholders or of directors or otherwise,
both as to actions in the Indemnitee's official capacity and as to actions in
another capacity while holding such office, and shall continue after the
Indemnitee has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the Indemnitee's heirs, executors and administrators.
(b) If any provision of this Agreement or the application
of any provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the
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remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected, and the provision so held to be
invalid, unenforceable or otherwise illegal shall be reformed to the extent
(and only to the extent) necessary to make it enforceable, valid and legal.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan, without giving
effect to the principles of conflict of laws thereof.
10. Modification; Survival. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof. This Agreement
may be modified only by an instrument in writing signed by both parties hereto.
The provisions of this Agreement shall survive the death, disability, or
incapacity of the Indemnitee or the termination of the Indemnitee's service as
a an officer or director of DTE Energy and shall inure to the benefit of the
Indemnitee's heirs, executors and administrators.
11. Certain Terms. For purposes of this Agreement, references to
"other enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on Indemnitee with respect to any
employee benefit plan; and references to "serving at the request of DTE Energy"
shall include any service as a director, officer, employee or agent of DTE
Energy which imposes duties on, or involves services by, the Indemnitee with
respect to an employee benefit plan, its participants or beneficiaries;
references to the masculine shall include the feminine and vice versa;
references to the singular shall include the plural and vice versa; and if the
Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan the Indemnitee shall
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be deemed to have acted in a manner "not opposed to the best interests of DTE
Energy" as referred to herein.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
DTE ENERGY COMPANY
By:
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Xxxxx X. Xxxxx
Vice President and Corporate Secretary
INDEMNITEE
-------------------------------------
[Name]
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EXHIBIT 1
INDEMNIFICATION STATEMENT
STATE OF MICHIGAN )
) SS
COUNTY OF _____________________________________ )
I, _______________________, being first duly sworn, do depose
and say as follows:
1. This Indemnification Statement is submitted pursuant
to the Indemnification Agreement, dated as of ________, 1995, between DTE Energy
Company, a Michigan corporation ("DTE Energy"), and the undersigned.
2. I am requesting indemnification against charges,
costs, expenses (including attorneys' and others' fees and expenses),
judgments, fines and amounts paid in settlement, all of which (collectively,
"Liabilities") have been or will be incurred by me in connection with an actual
or threatened action, suit, proceeding or claim to which I am a party or am
threatened to be made a party.
3. With respect to all matters related to any such
action, suit, proceeding or claim, I am entitled to be indemnified as herein
contemplated pursuant to the aforesaid Agreement.
4. Without limiting any other rights which I have or may
have, I am requesting indemnification against Liabilities which have arisen or
may arise out of
________________________
(Name)
Subscribed and sworn to before me, a Notary Public in and for
said County and State, this ______ day of __________, 19__.
[Seal] _______________________________
My commission expires the _______ day of _________, 19__.
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EXHIBIT 2
UNDERTAKING
STATE OF MICHIGAN )
) SS
COUNTY OF __________ )
I, _______________________, being first duly sworn do depose
and say as follows:
1. This Undertaking is submitted pursuant to the
Indemnification Agreement (the "Agreement"), dated as of _____, between DTE
Energy Company, a Michigan corporation ("DTE Energy"), and the undersigned.
2. I am requesting advancement of certain costs, charges
and expenses which I have incurred or will incur in defending an actual or
pending civil or criminal action, suit, proceeding or claim.
3. I affirm my good faith belief that I meet the
applicable standard of conduct set forth in Section 2(a), 2(b) or 3(a) of the
Agreement.
4. I hereby undertake to repay this advancement of
expenses if it shall ultimately be determined that I did not meet the
applicable standard of conduct or am not entitled to be indemnified by DTE
Energy under the aforesaid Agreement or otherwise.
5. My undertaking to repay is my unlimited general
obligation.
6. The costs, charges and expenses for which advancement
is requested are, in general, all expenses related to ________________________.
___________________________
(Name)
Subscribed and sworn to before me, a Notary Public in and for
said County and State, this ____ day of __________, 19__.
[Seal] ___________________________
My commission expires the ______ day of __________, 19__.
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