INDEMNIFICATION AGREEMENT (Chase Packaging Corporation)
EXHIBIT
10.1
(Chase
Packaging Corporation)
THIS
AGREEMENT is made to be effective the 23rd
day of
August, 2007, between Chase
Packaging Corporation
a Texas
corporation (the “Company”),
and_______________________ (“Indemnitee”).
Competent
and experienced persons are becoming more reluctant to serve as directors and/or
officers of corporations unless they are provided with adequate protection
against claims and actions against them for their activities on behalf, or
at
the request, of such corporations, generally through insurance and/or
indemnification.
Uncertainties
in the interpretations of the statutes and regulations, laws, and public
policies relating to indemnification of corporate directors and officers are
such as to make difficult adequate and reliable assessment of the risks to
which
directors and officers of such corporations may be exposed difficult,
particularly in light of the proliferation of lawsuits against directors and
officers generally.
The
Board
of Directors of the Company, based upon its business experience, has concluded
that the continuation of present trends in litigation against corporate
directors and officers will inevitably make it more difficult for the Company
to
attract and retain directors and officers of the highest degree of competence
committed to the active and effective direction and supervision of the business
and affairs of the Company and its subsidiaries and affiliates and the operation
of its and their facilities. In fact, the Board deems such potential adverse
consequences to be so detrimental to the best interests of the Company that
it
has concluded that the Company should act to provide its directors and officers
with enhanced protection against inordinate risks attendant on their positions
in order to assure that the most capable persons otherwise available will be
attracted to, or will remain in, such positions. In that regard, such directors
have further concluded that it is not only reasonable and prudent, but
necessary, for the Company to obligate itself contractually to indemnify, to
the
fullest extent permitted by applicable law, expenses and liabilities which
might
be incurred by such individuals in connection with claims lodged against them
for their decisions and actions in such capacities.
Article
2.02-1 of the Texas Business Corporation Act of the State of Texas, under which
law the Company is organized, empowers a corporation organized in Texas to
indemnify persons who serve as directors and/or officers of the corporation,
or
persons who serve at the request of the corporation as directors and/or officers
of an affiliated corporation, and further empowers a corporation to “purchase
and maintain insurance”
on
behalf of any such person “against
any liability asserted against him and incurred by him in such a capacity or
arising out of his status as such a person, whether or not the corporation
would
have the power to indemnify him against that liability under this
[Article].”
The
Articles of Incorporation and Bylaws of the Company permit indemnification
to
the fullest extent permitted by applicable law.
The
Company is aware of the fact that it currently does not have, but from time
to
time in the future may have, directors and officers insurance coverage. The
Company is also aware of the fact that any future insurance policies are likely
to have significant exclusions and limitations that leave the insureds
personally exposed.
The
Company desires to have the Indemnitee serve or continue to serve as a director
and/or officer of the Company, and/or as a director, officer, employee, partner,
trustee, agent, and/or fiduciary of such other corporations, partnerships,
joint
ventures, employee benefit plans, trusts, and/or other enterprises (herein
referred to as “Company Affiliate”) of which he has been or is serving, or will
serve on behalf of or at the request of or for the convenience of, or to
represent the interests of the Company, free from undue concern for
unpredictable, inappropriate, or unreasonable claims for damages by reason
of
his being, or having been, a director and/or officer of the Company, and/or
a
director, officer, employee, partner, trustee, agent, and/or fiduciary of a
Company Affiliate, or by reason of his decisions or actions on their
behalf.
The
Indemnitee is willing to serve, or to continue to serve, or to take on
additional service for, the Company and/or the Company Affiliate in such
aforesaid capacities on the condition that he be indemnified as provided for
herein.
Accordingly,
in consideration of the premises and the covenants contained herein, the Company
and the Indemnitee do hereby covenant and agree as follows:
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Services
to the Company:
The Indemnitee shall serve or continue to serve as a director and/or
officer of the Company (in the case of a Company officer at the will
of
the Company or under separate contract, if any such contract exists
or
shall hereafter exist), and/or as a director, and/or officer, or
fiduciary
of a Company Affiliate, faithfully and to the best of his ability
so long
as he is duly elected and qualified in accordance with the provisions
of
the Bylaws or other applicable constitutive documents thereof; provided,
however that: (a) the Indemnitee may at any time and for any reason
resign
from such position (subject to any contractual obligations which
the
Indemnitee has assumed apart from this Agreement); and (b) neither
the
Company nor the Company Affiliate will have any obligation under
this
Agreement to continue the Indemnitee in any such
position.
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2
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Right
to Indemnification:
The Company shall, except to the extent prohibited by applicable
law as
then in effect, indemnify any Indemnitee who is or was involved in
any
manner (including, without limitation, as a party or witness), or
is
threatened to be made so involved, in any threatened, pending, or
completed investigation, claim, action, suit, or proceeding whether
civil,
criminal, administrative, or investigative (including, without limitation,
any action, suit, or proceeding by or in the right of the Company
to
procure a judgment in its favor) (herein referred to as a “Proceeding”)
by reason of the fact that such person is
or
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was
a
director or officer of the Company, and/or is or was serving at the request
of
the Company as a director or officer of any Company affiliate, against all
expenses (including attorneys’ fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such Proceeding; provided,
however,
that
(except as provided in Paragraph 3.4) the foregoing shall not apply to a
director or officer of the Company with respect to a Proceeding that was
commenced by such director or officer. Such indemnification shall include the
right to receive payment in advance of any expenses incurred by the Indemnitee
in connection with such Proceeding, consistent with the provisions of applicable
law as then in effect.
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Advancement
of Expenses; Procedures; Presumptions, and Effect of Certain Proceedings;
Remedies:
In furtherance, but not in limitation, of the foregoing provisions,
the
following procedures, presumptions, and remedies shall apply with
respect
to advancement of expenses and the right to indemnification
hereunder:
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3.1
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Advancement
of Expenses:
All reasonable expenses incurred by or on behalf of the Indemnitee
in
connection with any Proceeding shall, after initial approval in accordance
with Paragraph 3.2, be advanced to the Indemnitee by the Company
within
twenty (20) calendar days after the receipt by the Company of a statement
or statements from the Indemnitee requesting such advance or advances
from
time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence
the
expenses incurred by the Indemnitee and, if required by law at the
time of
such advance, shall include or be accompanied by an undertaking by
or on
behalf of the Indemnitee to repay the amounts advanced if it should
ultimately be determined that the Indemnitee is not entitled to be
indemnified against such expenses
hereunder.
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Procurement
for Determination of Entitlement to
Indemnification:
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3.2.1
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To
obtain indemnification as herein provided, an Indemnitee shall submit
to
the President or Secretary of the Company a written request, including
such documentation and information as is reasonably available to
the
Indemnitee and reasonably necessary to determine whether and to what
extent the Indemnitee is entitled to indemnification (herein referred
to
as the “Supporting
Documentation”).
The determination of the Indemnitee’s entitlement to indemnification shall
be made not later than forty-five (45) calendar days after receipt
by the
Company of the written request for Indemnification together with
the
Supporting Documentation. The Secretary or President of the Company
shall,
promptly upon receipt of such a request for indemnification, advise
the
Board of Directors in writing that the Indemnitee has requested
indemnification.
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3.2.2
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The
Indemnitee’s entitlement to indemnification hereunder shall (except as
provided in Subparagraph 3.2.3 below) be determined in one of the
following ways (each of which shall give effect to the presumptions
set
forth in Paragraph 3.3): (a) by a majority vote of the Disinterested
Directors (as hereinafter defined) if they constitute a quorum of
the
Board of Directors; (b) by a written opinion of Independent Counsel
(as
hereinafter defined) if a quorum of the Board of Directors consisting
of
Disinterested Directors is not obtainable or, even if obtainable,
a
majority of such Disinterested Directors so directs: (c) by the
stockholders of the Company (but only if a majority of the Disinterested
Directors, if they constitute a quorum of the Board of Directors,
presents
the issue of entitlement to indemnification to the stockholders for
their
determination); or (d) as provided in Paragraph 3.3. In the event
that
this Subparagraph 3.2.2 applies, stockholder approval will be deemed
to
have been received if the holders of a majority of the Company’s total
common stock outstanding vote in favor of such
approval.
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3.2.3
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Notwithstanding
what is stated above, in the event of a Change in Control (as hereinafter
defined) the Indemnitee’s entitlement to indemnification shall be
determined by a written opinion of Independent Counsel in a written
opinion to the Board of Directors, a copy of which shall be delivered
to
the Indemnitee. The Independent Counsel shall be selected by the
Indemnitee. In the event the Company objects to the Independent Counsel
so
selected, within seven days after written notice of the selection
has been
given by the Indemnitee to the Company, the Company may object to
such
selection by written notification given to the Indemnitee. Such objection
may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirement of “Independent
Counsel”
as hereafter defined, and the objection shall set forth with particularity
the factual basis of such assertion. If such written objection is
made,
the Independent Counsel so selected may not serve as Independent
Counsel
unless and until a court has determined that such objection is without
merit. The Company shall pay any and all reasonable fees and expenses
of
Independent Counsel incurred by such Independent Counsel in connection
with the performance of his responsibilities hereunder, and the Company
shall pay all reasonable fees and expenses instant to the implementation
of the procedures referred to above. Upon the due commencement of
any
judicial proceeding or arbitration pursuant to Subparagraph 3.4.1
hereof,
the Independent Counsel shall be discharged and relieved of
any
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further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
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3.2.4
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In
the event of a Potential Change in Control (as hereinafter defined),
the
Company, upon written request by the Indemnitee, shall create a trust
for
the benefit of the Indemnitee and from time to time upon written
request
of the Indemnitee shall fund such trust in an amount sufficient to
satisfy
any and all expenses which at the time of each such request it is
reasonably anticipated will be incurred in connection with a Proceeding
for which the Indemnitee is entitled to rights of indemnification
under
Paragraph 2 hereof, and any and all judgments, fines, penalties,
and
settlement amounts of any and all proceedings for which the Indemnitee
is
entitled to rights of indemnification under Paragraph 2 from time
to time
actually paid or claimed, reasonably anticipated, or proposed to
be paid.
The amount or amounts to be deposited in the trust pursuant to the
foregoing funding obligation shall be determined by the Independent
Counsel referred to in Subparagraph 3.2.2 above. The terms of the trust
shall provide that upon a Change in Control: (i) the trust shall
not be
revoked, or the principal thereof invaded, without the written consent
of
the Indemnitee; (ii) the trustee shall advance, within two (2) business
days of a request by the Indemnitee, any and all expenses to the
Indemnitee; (iii) the trust shall continue to be funded by the Company
in
accordance with the funding obligations set forth above; (iv) the
trustee
shall promptly pay to the Indemnitee all amounts for which the Indemnitee
is entitled to indemnification pursuant to this Agreement or otherwise;
and (v) all unexpended funds in such trust shall revert to the Company
upon a final determination by such Independent Counsel that the Indemnitee
has been fully indemnified under the terms of this Agreement. The
trustee
shall be an institutional trustee with a highly regarded reputation
chosen
by the Indemnitee. Nothing in this Subparagraph 3.2.4 shall relieve
the
Company of any of its obligations under this Agreement. Nothing contained
in this Subparagraph 3.2.4. shall prevent the Board of Directors
of the
Company in its discretion at any time and from time to time, upon
request
of the Indemnitee, from providing security to the Indemnitee for
the
Company’s obligations hereunder through an irrevocable line of credit,
funded trust as described above, or other collateral. Any such security,
once provided to the Indemnitee, may not be revoked or released without
the Indemnitee’s prior written
consent.
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3.3
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Presumptions
and Effect of Certain Proceedings:
Except as otherwise expressly provided herein, the Indemnitee shall
be
presumed to be entitled to indemnification hereunder upon submission
of a
request for
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indemnification
together with the Supporting Documentation in accordance with Subparagraph
3.2.1, and thereafter the Company shall have the burden of proof to overcome
that presumption in reaching a contrary determination. In any event, if the
person or persons empowered under Paragraph 3.2 to determine entitlement to
indemnification have not been appointed or have not made a determination within
sixty (60) calendar days after receipt by the Company of the request therefor
together with the Supporting Documentation, the Indemnitee shall be deemed
to be
entitled to indemnification, and the Indemnitee shall be entitled to such
indemnification unless the Company establishes as provided in the final sentence
of Paragraph 3.4.2 or by written opinion of Independent Counsel that: (a) the
Indemnitee misrepresented or failed to disclose a material fact in making the
request for indemnification or in the Supporting Documentation; or (b) such
indemnification is prohibited by law. The termination of any Proceeding
described in Paragraph 2, or of any claim, issue, or matter therein, by
judgment, order, settlement, or conviction, or upon a plea of nolo
contendere
or its
equivalent, shall not, of itself, adversely affect the right of the Indemnitee
to indemnification or 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 the Company or, with respect to any
criminal Proceeding, that the Indemnitee had reasonable cause to believe that
his conduct was unlawful.
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3.4
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Remedies
of Indemnitee:
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3.4.
1
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In
the event that a determination is made pursuant to Paragraph 3.2
that the
Indemnitee is not entitled to indemnification hereunder: (a) the
Indemnitee shall be entitled to seek an adjudication of his entitlement
to
such indemnification either, at the Indemnitee’s option, in (x) an
appropriate court of the State of Texas or any other court of competent
jurisdiction, or (y) an arbitration to be conducted by a single arbitrator
selected by mutual agreement of the Company and the Indemnitee (or,
failing such agreement by the then sitting Chief Judge of the United
States District Court for the Southern District of New York), pursuant
to
the commercial arbitration rules of the American Arbitration Association;
(b) any such judicial proceeding or arbitration shall be de
novo,
and the Indemnitee shall not be prejudiced by reason of such adverse
determination; and (c) in any such judicial proceeding or arbitration
the
Company shall have the burden of proving that indemnification is
prohibited by applicable law. If any such determination is made,
the
Indemnitee shall be entitled, on five (5) days’ written notice to the
Secretary of the Company, to receive the written report of the persons
making such determination,
which
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report
shall include the reasons and factual findings, if any, upon which such
determination was based.
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3.4.2
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If
a determination has been made, or is deemed to have been made, pursuant
to
Paragraph 3.2 or 3.3 that the Indemnitee is entitled to indemnification,
the Company shall be obligated to pay the amounts constituting such
indemnification within five (5) days after such determination has
been
made or deemed to have been made and shall be conclusively bound
by such
determination unless the Company establishes as provided in the final
sentence of this paragraph that: (a) the Indemnitee misrepresented
or
failed to disclose a material fact in making the request for
indemnification or in the Supporting Documentation; or (b) such
indemnification is prohibited by law. If either (x) advancement of
expenses is not timely made pursuant to Paragraph 3.1, or (y) payment
of
indemnification is not made within five calendar days after a
determination of entitlement to indemnification has been made or
deemed to
have been made pursuant to Paragraph 3.2 or 3.3, the Indemnitee shall
be
entitled to seek judicial enforcement of the Company’s obligation to pay
to the Indemnitee such advancement of expenses or indemnification.
Notwithstanding the foregoing, the Company may bring an action, in
an
appropriate court in the State of New York or any other court of
competent
jurisdiction, contesting the right of the Indemnitee to receive
indemnification hereunder due to the occurrence of an event described
in
subclause (a) or (b) of this Subparagraph 3.4.2 (herein referred
to as a
“Disqualifying
Event”);
provided,
however,
that in any such action the Company will have the burden of proving
the
occurrence of such Disqualifying
Event.
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3.4.3
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The
Company shall be precluded from asserting in any judicial proceeding
or
arbitration commenced pursuant to this Paragraph 3.4 that the procedures
and presumptions of this Paragraph 3.4 are not valid, binding, and
enforceable, and shall stipulate in any such court or before any
such
arbitrator that the Company is bound by all of the provisions of
this
Agreement.
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3.4.4
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If
the Indemnitee, pursuant to this Paragraph 3.4, seeks a judicial
adjudication of, or an award in arbitration to enforce, his rights
under,
or to recover damages for breach of, this Agreement, the Indemnitee
shall
be entitled to recover from the Company, and shall be indemnified
by the
Company against, any expenses actually and reasonably incurred by
the
Indemnitee if the Indemnitee prevails in such judicial adjudication
or
arbitration. If it is determined in such judicial adjudication or
arbitration that the Indemnitee is entitled to receive part but not
all of
the
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indemnification
or advancement of expenses sought, the expenses incurred by the Indemnitee
in
connection with such judicial adjudication or arbitration shall be prorated
accordingly.
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3.5
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Definitions:
For purposes of this Paragraph 3:
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“Disinterested
Director”
means
a
director of the Company who is not or was not a party to the Proceeding in
respect of which indemnification is sought by the Indemnitee.
“Independent
Counsel”
means
a
law firm or a member of a law firm that neither presently is, nor in the past
five years has been, retained to represent: (a) the Company or the Indemnitee
in
any matter material to either such party; or (b) any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term “Independent
Counsel”
shall
not include any person who, under the applicable standards of professional
conduct then prevailing under the laws of the State of New York, would have
a
conflict of interest in representing either the Company or the Indemnitee in
an
action to determine the Indemnitee’s rights hereunder.
“Change
in Control”
means:
(i)
the
consummation of any consolidation or merger of the Company into or with another
corporation or other legal person, and as a result of such consolidation or
merger less than a majority of the combined voting power of the then outstanding
securities of such corporation or person immediately after such transaction
are
held in the aggregate by holders of Voting Stock (as defined below) of the
Company immediately prior to such transaction;
(ii)
any
sale, lease, exchange, or other transfer, whether in one transaction or any
series of related transactions, of all or significant portions of the assets
of
the Company to any other corporation or other legal persons, less than a
majority of the combined voting power of the then-outstanding securities of
such
corporation or person immediately after such sale, lease, exchange, or transfer
is held in the aggregate by the holders of Voting Stock of the Company
immediately prior to such sale, lease, exchange, or transfers;
(iii)
the
shareholders of the Company approve any plan for the liquidation or dissolution
of the Company;
(iv)
any
person (as such term is used in Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) other than an existing
director of the Company
8
becomes,
either directly or indirectly, the beneficial owner (within the meaning of
Rule
13d-3 under the Exchange Act) of securities representing more than 33% of the
combined voting power of the then outstanding securities entitled to vote
generally in the election of directors of the Company (“Voting Stock”);
or
(v)
if at
any time during a fiscal year a majority of the Board of Directors are replaced
by persons who were not recommended for those positions by at least two-thirds
of the directors of the Company who were directors of the Company at the
beginning of the fiscal year.
Notwithstanding
the preceding, a “Change of Control” shall not be deemed to have occurred with
respect to any of the foregoing transactions conducted by any employee benefit
plan (or related trust) sponsored or maintained by the Company, any corporation
controlled by the Company, or any affiliate of the Company.
“Potential
Change in Control”
shall
be deemed to have occurred if: (i) the Company enters into an agreement the
consummation of which would result in the occurrence of a Change in Control;
(ii) a person (including the Company) publicly announces a legitimate intention
to take or to consider taking actions which if consummated would constitute
a
Change in Control; or (iii) the Board of Directors adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change in Control
has
occurred.
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Other
Rights to Indemnification:
The indemnification and advancement of costs and expenses (including
attorneys’ fees and disbursements) provided by this Agreement shall not be
deemed exclusive of any other rights to which the Indemnitee may
now or in
the future be entitled under any provision of applicable law, the
Articles
of Incorporation, or any Bylaw of the Company or any other agreement,
or
any vote of directors or stockholders or otherwise, whether as to
action
in his official capacity or in another capacity while occupying any
of the
positions or having any of the relationships referred to in Paragraph
1 of
this Agreement.
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5
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Duration
of Agreement:
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5.
1
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This
Agreement shall be effective from and after the date hereof, and
shall
continue until and terminate upon the later of: (i) the tenth
(10th)
anniversary after the Indemnitee has ceased to occupy any of the positions
or have any of the relationships described in Paragraph 1 of this
Agreement; or (ii) (a) the final termination or resolution of all
proceedings with respect to the Indemnitee commenced during such
ten (10)
year period, and (b) either (x) receipt by the Indemnitee of the
Indemnification to which he or she is entitled hereunder with respect
thereto, or (y) a final
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adjudication
or binding arbitration that the Indemnitee is not entitled to any further
indemnification with respect thereto, as the case may be.
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5.2
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This
Agreement shall be binding upon the Company and its successors and
assigns
and shall inure to the benefit of the Indemnitee and his heirs, devisees,
executors, administrators, or other legal
representatives.
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Severability:
If any provision or provisions of this Agreement are held to be invalid,
illegal, or unenforceable under any particular circumstances or for
any
reason whatsoever: (a) the validity, legality, and enforceability
of the
remaining provisions of this Agreement (including, without limitation,
all
other portions of any paragraph or clause of this Agreement that
contains
any provision that has been found to be invalid, illegal, or
unenforceable, that are not themselves invalid, illegal, or unenforceable)
or the validity, legality, or enforceability under any other circumstances
shall not in any way be affected or impaired thereby; and (b) to
the
fullest extent possible consistent with applicable law, the provisions
of
this Agreement (including, without limitation, all other portions
of any
paragraph or clause of this Agreement that contains any such provision
that has been found to be invalid, illegal, or unenforceable, that
are not
themselves invalid, illegal, or unenforceable) shall be deemed revised
and
shall be construed so as to give effect to the intent manifested
by this
Agreement (including the provision held invalid, illegal, or
unenforceable).
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Identical
Counterparts:
This Agreement may be executed in one or more counterparts, each
of which
shall for all purposes be deemed to be an original, but all of which
together shall constitute one and the same Agreement. Only one such
counterpart signed by the party against whom enforceability is sought
needs to be produced to evidence the existence of this
Agreement.
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Headings:
The headings of the paragraphs of this Agreement are inserted for
convenience and shall not be deemed to constitute part of this Agreement
or to affect the construction
thereof.
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Modification
and Waiver:
No supplement, modification, or amendment of this Agreement shall
be
binding unless executed in writing by both of the parties hereto.
No
waiver of any of the provisions of this Agreement shall be deemed
or shall
constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing
waiver.
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10
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Notification
and Defense of Claim:
The Indemnitee agrees to notify the Company promptly in writing upon
being
served with any summons, citation, subpoena, complaint, indictment,
information, or other document relating to any matter which may be
subject
to indemnification hereunder, whether civil, criminal, or investigative;
provided,
however,
that the failure of the Indemnitee to give such notice to the Company
shall not adversely affect the Indemnitee’s rights under this Agreement
except to the extent the Company has been
materially
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prejudiced
as a direct result of such failure. Nothing in this Agreement shall constitute
a
waiver of the Company’s right to seek participation at its own expense in any
Proceeding which may give rise to indemnification hereunder.
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Notices:
All notices, requests, demands, and other communications hereunder
shall
be in writing and shall be deemed to have been duly given if: (i)
delivered by hand and receipted for by the party to whom said notice
or
other communication shall have been directed; or (ii) mailed by certified
or registered mail with postage prepaid, on the third business day
after
the date on which it is so mailed, in either
case:
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(a)
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if
to the Indemnitee, at the address
below;
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(b)
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if
to the Company:
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Chase
Packaging Corporation
000
Xxxxx
Xxxx
Xxxx
Xxxxx, XX 00000
or
to
such address as may have been furnished to either party by the other
party.
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Governing
Law:
The parties hereto agree that this Agreement shall be governed by,
and
construed and enforced in accordance with, the laws of the State
of New
York.
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement to be effective as of the day and
year first above written.
COMPANY:
Chase
Packaging Corporation
By:
Xxxxx X. XxXxxxx,
President
Date:
August 23, 2007
INDEMNITEE:
Date:
August 23, 2007
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