Exhibit 10.1
INDEMNIFICATION AGREEMENT
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This Indemnification Agreement dated as of _______ __, 1998, between
Icon CMT Corp., a Delaware corporation with its principal office located at 0000
Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Corporation"), and [Name of
Individual], an [officer and/or director] of the Corporation residing at
_________________________ (the "Indemnitee").
W I T N E S S E T H:
WHEREAS, the Corporation seeks to attract and retain the most capable
persons available to serve as its directors and officers; and
WHEREAS, such persons require substantial protection against personal
liability arising out of their faithful service to the Corporation; and
WHEREAS, the Corporation and the Indemnitee believe it desirable to
enter into agreements to reflect indemnification and advancement of expenses
arrangements; and
WHEREAS, in recognition of the Corporation's desire to retain the
services of the Indemnitee and in furtherance of the Corporation's policy and in
accordance with Article V, Paragraph Eleventh of the Corporation's By-laws, the
Corporation desires to provide the Indemnitee with the right to indemnification
and advancement of expenses and the Indemnitee desires to receive such right,
all upon the terms and subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing premises, the
Indemnitee's continued service to the Corporation and the mutual covenants
contained herein, the parties hereby agree as follows:
1. Certain Terms Defined. As used in this Agreement,
the following terms shall have the following meanings:
(a) The term "Action" shall mean any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, and including one by or in the right of the
Corporation or by or in the right of any other Entity which the Indemnitee
served in any capacity at the request of the Corporation.
(b) The term "Agreement" shall mean this
Indemnification Agreement, as the same
may be amended from time to time.
(c) The term "Board" shall mean the Board of
Directors of the Corporation.
(d) The term "Entity" shall mean any corporation of
any type or kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise.
2. Right to Indemnification; Limitations. Subject to the terms
set forth in this Agreement, the Corporation shall indemnify the Indemnitee if
the Indemnitee was or is a party or is threatened to be made a party to any
Action by reason of the fact that the Indemnitee (or the Indemnitee's testator
or intestate) is or was a director or officer of the Corporation, or served
another Entity in any capacity, against judgments, fines, amounts paid in
settlement actually and reasonably incurred in connection with such Action and
expenses, including attorneys' fees, incurred as a result of such Action.
(a) The Indemnitee shall be entitled to
indemnification under this Section 2 only to the extent that (i) with respect to
any and all Actions, 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
the Corporation, and (ii) with respect to any criminal Action, the Indemnitee
did not have reasonable cause to believe that the Indemnitee's conduct was
unlawful.
(b) Notwithstanding Sections 2(a) and (b), above,
to the extent required by law, no indemnification shall be made in respect of
any Action as to which the 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 was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the Action, the Indemnitee is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
3. Advances of Expenses. At the written request of the
Indemnitee, the Corporation will advance to the Indemnitee the expenses
(including attorneys' fees) incurred by the Indemnitee in defending any Action
in advance of the final disposition of such Action.
(a) The Indemnitee hereby agrees and undertakes
to repay such advanced amounts (or appropriate portions thereof) as to which it
ultimately is determined that the Indemnitee was not entitled; provided that
this undertaking shall be effective only if and to the extent that, by law, it
must be enforced as a condition to the receipt by the Indemnitee of advanced
expenses under this Section.
4. Payment by Corporation. The Corporation shall pay the
indemnification requested under Section 2 and advance the expenses requested
under Section 3 promptly following receipt by the Corporation of the
Indemnitee's written request therefor and, in any event, no later than thirty
(30) days after such receipt (in the case of requested indemnification) or
fifteen (15) days after such receipt (in the case of requested advanced
expenses).
5. Enforcement.
(a) The right of the Indemnitee to
indemnification and advancement of expenses provided by this Agreement shall be
enforceable by the Indemnitee in any court of competent jurisdiction. In such an
enforcement action, the burden shall be on the Corporation to prove that the
indemnification and advancement of expenses being sought are not appropriate.
Neither the failure of the Corporation to determine whether indemnification or
the advancement of expenses is proper in the circumstances nor an actual
determination by the Corporation thereon adverse to the Indemnitee shall
constitute a defense to the action or create a presumption that the Indemnitee
is not so entitled.
(b) Without limiting the scope of indemnification
to which the Indemnitee is entitled under this Agreement, (i) if the Indemnitee
has been successful on the merits or otherwise in the defense of an Action, the
Indemnitee shall be entitled to indemnification as authorized in Section 2, and
(ii) the
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termination of any Action by judgment, order, settlement, conviction or plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption
that the Indemnitee has not met the standard of conduct required for
indemnification under this Agreement.
(c) The Indemnitee's reasonable expenses incurred
in connection with successfully establishing the Indemnitee's right to
indemnification or advancement or expenses, in whole or in part, in any such
proceeding under this section also shall be indemnified by the Corporation.
6. Non-Exclusivity. Nothing contained in this Agreement shall
limit the right to indemnification and advancement of expenses to which the
Indemnitee would be entitled by law in the absence of this Agreement, or shall
be deemed exclusive of any other rights to which the Indemnitee in seeking
indemnification or advancement of expenses may have or hereafter be entitled
under any law, provision of the Certificate of Incorporation, By-law, agreement
approved by or resolution of disinterested members of the Board, resolution of
Shareholders of the Corporation or otherwise.
7. Subrogation.
(a) The Corporation 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 otherwise actually received payment
(under any insurance policy, By-law or otherwise) of the amounts otherwise
subject to indemnification or expense advance under this Agreement.
(b) 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 the Indemnitee other than from the Corporation, and the
Indemnitee 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.
8. Notice of Claim. As a condition precedent to the right to
be indemnified under this Agreement, the Indemnitee shall give the Corporation
written notice as soon as practicable of any claim made against the Indemnitee
for which indemnification or expense advances will or could be sought under this
Agreement. In addition, the Indemnitee shall give the Corporation such
information and cooperation as the Corporation reasonably may require.
9. Severability. If this Agreement or any portion hereof shall
be invalidated or held unenforceable on any ground by any court of competent
jurisdiction, the Corporation nevertheless shall indemnify the Indemnitee to the
fullest extent permitted by any applicable portion of this Agreement that shall
not have been so invalidated or held unenforceable.
10. Continuity of Rights. The right of the Indemnitee to
indemnification and advancement of expenses under this Agreement shall (a)
continue after the Indemnitee has ceased to serve in a capacity which would
entitle the Indemnitee to indemnification or advancement of expenses pursuant to
this Agreement with respect to acts or omissions occurring prior to such
cessation, (b) inure to the benefit of the heirs, executors and administrators
of the Indemnitee, (c) apply with respect to acts or omissions occurring prior
to the execution and delivery of this Agreement to the fullest extent permitted
by law, and (d) survive any restrictive amendment or termination of this
Agreement with respect to events occurring prior thereto.
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11. Proceedings Initiated by Indemnitee. Other than to the
extent provided in Section 5(c), above, the Indemnitee shall not be entitled to
indemnification or advancement of expenses under this Agreement with respect to
any Action initiated by the Indemnitee, but shall be entitled to indemnification
and advancement of expenses with respect to any counterclaim or third-party
claim in any such Action.
12. Binding Effect. This Agreement shall be binding upon all
successors and assigns of the Corporation (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,
successors, representatives and estate of the Indemnitee.
13. Governing Law. Except with respect to matters required to
be governed by, and construed and enforced in accordance with, the corporate
laws of the State of Delaware, this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York
applicable to con tracts made and to be performed in such state, without giving
effect to the principles of conflicts of laws.
14. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction hereof.
15. Notices. Any notice, request or other communication
hereunder to or on behalf of the Corporation or the Indemnitee shall be in
writing and shall be delivered to the other party hereto at the address shown on
the first page hereof (in the case of the Corporation, addressed to the
attention of the Board, with a copy delivered to Xxxxxx Xxxxxx Flattau & Klimpl,
LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, addressed to Xxxxxxx
Xxxxxxxx, Esq.). Any such notice, request or other communication shall be deemed
delivered one business day after sent by Federal Express, Express Mail or
similar overnight delivery service or, if sent otherwise, then upon the receipt
thereof at that address.
Either address referred to in the preceding subsection may be changed
from time to time in the manner specified in the preceding subsection, and
thereafter notices, requests and other communications shall be delivered to the
most recent address so furnished.
16. Counterparts. This Agreement may be executed in any number
of counterparts. Each counterpart of an agreement so executed shall be deemed an
original, but all such counterparts shall together constitute but one and the
same instrument. In making proof of this Agreement, it shall not be necessary to
produce or account for more than one counterpart.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
Icon CMT Corp.
By:
Name:
Title:
[Name of Individual]
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