EXHIBIT 99(c)(4)
INDEMNITY AGREEMENT
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AGREEMENT, dated as of _______________, by and between _____________
(the "Company") and the undersigned director and/or officer of the Company (the
"Indemnitee").
In view of the substantial increase in directors' and officers'
litigation costs and risks and the recent limitations on the availability and
cover age of liability insurance, and in view of the mutual desire of the
parties that the Indemnitee render valuable services to the Company, this
Agreement is entered into in order to provide assurance to the Indemnitee that
the Company will indemnify the Indemnitee against such costs and risks to the
full extent permitted by the laws of the State of New York.
1. Indemnification. To the full extent permitted by the laws of the
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State of New York as from time to time in effect, the Company shall indem nify
the Indemnitee and any persons referred to in the second sentence of Section 6
against any expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement incurred in connection with any actual or threatened action
or proceeding, whether civil or criminal, to which the Indemnitee or such person
is made or threatened to be made a party by reason of the fact that the
Indemnitee then is or was a director or officer of the Company or then serves or
has served any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity at the request of the Company.
To the full extent so permitted, the foregoing shall apply to actions by or in
the right of the Company and require the Company to pay expenses in advance of
final disposi tion.
2. Procedure for Indemnification. After the final disposition of
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any action or proceeding covered by this Agreement, the Indemnitee shall send to
the Company a written request for any indemnification sought under this
Agreement. The Company shall promptly make a finding whether the indemnifi
cation requested is permitted by the laws of the State of New York and, no later
than 60 days following receipt by the Company of such request, the Company shall
cause the indemnification provided hereunder to be authorized and paid unless
the finding is that the indemnification requested is not permitted by such laws.
(a) The burden of proving that such standard has not been
met shall be on the Company. During such 60-day period, the
Indemnitee shall be given an opportunity to be heard and to
present evidence in connection with consider ation by the Board
of Directors, independent legal counsel or the stockholders, as
the case may be, of any findings required by applicable law.
(b) If the Company does not pay the indemnifica tion
requested by the Indemnitee within 60 days after the receipt of
such request, the Indemnitee's right to indemnifi cation shall be
enforceable in any court of competent juris diction as set forth
below. In any such action, neither the making of, nor failure to
make, any finding by the Compa ny (including its Board of
Directors, its independent legal counsel and its stockholders)
that indemnification of the Indemnitee is proper or not proper in
the circumstances, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable
standard of con duct. The Indemnitee's reasonable expenses,
including attorneys' fees, actually and necessarily incurred in
connec tion with successfully establishing the right to
indemnifica tion, in whole or in part, in any such action shall
also be indemnified by the Company.
(c) Any action instituted by the Company or by the
Indemnitee under this Agreement may be maintained as to the
Company and the Indemnitee in any court of compe tent
jurisdiction, including but not limited to the courts of the
State of New York. The Company and the Indemnitee each consents
to the exercise of jurisdiction and venue over the Company or the
Indemnitee, as the case may be, by the Supreme Court of the State
of New York in and for the County of New York.
3. Procedure for Advancement of Expenses. Promptly upon receipt by
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the Company of a written request for payment of expenses incurred by the
Indemnitees in defending any action or proceeding covered by Section 1,
accompanied by documentation of the expenses incurred and by an undertaking by
the Indemnitee to repay the amount advanced as and to the extent required by
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Section 725 of the New York Business Corporation Law, the Company shall pay the
amount requested to or as directed by the Indemnitee notwithstanding the absence
of a final disposition of the action or proceeding.
4. Change in Control. Following a Change in Control (as hereafter
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defined), any finding whether indemnification is permitted by the laws of the
State of New York shall, if the Indemnitee so elects, be based upon the written
opinion of special independent counsel selected by the Indemnitee and approved
by the Company (which approval shall not be unreasonably withheld). Following a
Potential Change in Control (as hereafter defined), the Company shall, if the
Indemnitee so elects, create an irrevocable trust for the benefit of the
Indemnitee with a trustee selected by the Indemnitee and fund such trust from
time to time in amounts sufficient to satisfy any expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement reasonably anticipated or
proposed to be incurred or paid.
(a) Such counsel shall render an opinion to the Board of
Directors and the Indemnitee as to whether indem nification is
permitted by the laws of the State of New York. The Company
shall pay the reasonable fees of such counsel.
(b) Such trust shall provide that, following a Change in
Control, (i) the Trustee shall effect the indemnifi cation and
advances called for by this Agreement in accor dance with the
procedures and conditions of Sections 2 and 3 and (ii) all
unexpended funds in the trust shall revert to the Company upon a
final determination that the Indemnitee has been fully
indemnified under the terms of this Agree ment.
(c) A "Change in Control" shall mean: (i) the date that any
person or group deemed a person under Sec tions 3(a)(9) and
13(d)(3) of the Securities Exchange Act of 1934, other than the
Company or any of its affiliates imme diately prior to that date,
in a transaction or series of trans actions has become the
beneficial owner, directly or indi rectly (with beneficial
ownership determined as provided in Rule 13d-3, or any successor
rule, under such Act), of 25% or more of the outstanding
securities of the Company hav-
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ing the right under ordinary circumstances to vote at an election
of the Board of Directors; (ii) the date on which one third or
more of the members of the Board of Directors shall consist of
persons other than Current Directors (for these purposes, a
"Current Director" shall mean any mem ber of the Board of
Directors as of November 1, 1986 and any successor of a Current
Director who has been approved by a majority of the Current
Directors then on the Board); and (iii) the date of approval by
the stockholders of the Company of an agreement providing for (x)
the merger or consolidation of the Company with another
corporation where the stockholders of the Company, immediately
prior to the merger or consolidation, would not beneficially own,
immediately after the merger or consolidation, shares enti tling
such stockholders to 50% or more of all votes (without
consideration of the rights of any class of stock to elect
directors by a separate class vote) to which all stockholders of
the corporation issuing cash or securities in the merger or
consolidation would be entitled in the election of directors or
where the members of the Board of Directors of the Company,
immediately prior to the merger or consolidation, would not,
immediately after the merger or consolidation, constitute a
majority of the Board of Directors of the corpo ration issuing
cash or securities in the merger or consolida tion or (y) the
sale or other disposition of all or substantial ly all the assets
of the Company.
(d) A "Potential Change in Control" shall be deemed to have
occurred if: (i) the Company enters into an agreement or
arrangement, the consummation of which would result in the
occurrence of a Change in Control; (ii) any person (including the
Company) publicly announces an 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.
5. Voluntary Proceedings. Notwithstanding anything in this
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Agreement to the contrary, prior to a Change in Control, the Indemnitee shall
not
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be entitled to indemnification or any advance pursuant to this Agreement in
connection with any claim, action or proceeding initiated by the Indemnitee
against the Company or any director or officer of the Company unless the
institution of such claim, action or proceeding was authorized prior to its com
mencement by a majority vote of the Board of Directors or the Indemnitee is
successful on the merits in such claim, action or proceeding.
6. Other Rights; Continuation of Right to Indemnification. The
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indemnification and advances provided by this Agreement shall not be deemed
exclusive of any other rights consistent with the laws of the State of New York
to which a director or officer seeking indemnification may be entitled under any
law (common or statutory), provision of the Company's certificate of
incorporation or by-laws, resolution of stockholders or directors, other
agreement or otherwise, both as to action in the Indemnitee's official capacity
and as to action in another capacity while holding office or while employed by
or acting as agent for the Company, and shall continue notwithstanding that the
Indemnitee may have ceased to be a director or officer or to act as such
employee or agent. The provisions of this Agreement shall inure to the benefit
of the estate, heirs, executors, administrators and other personal
representatives of the Indemnitee.
7. Amendments. This Agreement may not be amended without the
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agreement in writing of the Company and the Indemnitee.
8. Savings Clause. If any portion of this Agreement shall be deemed
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invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby, and the Company shall nevertheless indemnify
the Indemnitee as to expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement to the full extent permitted by any applicable
portion of this Agreement that shall not have been invalidated and to the full
extent permitted by applicable law.
9. Survival Clause. The Company acknowledges that, in providing
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services to the Company, the Indemnitee is relying on this Agreement.
Accordingly, the Company agrees that its obligations hereunder will survive (i)
any actual or purported termination of this Agreement by the Company or its
successors or assigns whether by operation of law or otherwise, (ii) any change
in the Company's certificate of incorporation or by-laws and (iii) termination
of the Indemnitee's services to the Company (whether such services were
terminated by the Company or the Indemnitee), whether or not a claim is made or
an action or
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proceeding is threatened or commenced before or after the actual or purported
termination of this Agreement, change in the certificate of incorporation or by-
laws, or termination of the Indemnitee's services.
10. Successors and Assigns of the Company. This Agreement shall be
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binding on the successors and assigns of the Company whether by operation of law
or otherwise.
11. Governing Law. This Agreement shall be governed in all respects,
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including validity, interpretation and effect, by the laws of the State of New
York (without giving effect to the provisions thereof relating to conflict of
laws).
IN WITNESS WHEREOF, this Agreement has been executed by the parties as
of the date first above written.
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By:________________________
INDEMNITEE:
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