Exhibit 10.18
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made this 23rd day of
April, 1999 between Foilmark, Inc., a Delaware corporation having its
principal office located in Newburyport, Massachusetts ("Indemnitor"), and
Xxxxxxx X. Xxxxxxx ("Indemnitee").
RECITALS
A. Indemnitee is now serving, or is considering serving, Indemnitor as a
director or officer, or both, and the parties hereto acknowledge that
Indemnitee's service to Indemnitor may expose Indemnitee to claims, lawsuits and
risk of liability.
B. The parties further recognize that the compensation or fees payable to
Indemnitee for the performance of such services may not be commensurate with the
potential risk involved and Indemnitor is now, or may in the future be, unable
adequately to provide insurance at a reasonable cost to cover such risk.
C. Accordingly, as an inducement to Indemnitee to serve or to continue to
serve Indemnitor, Indemnitor and Indemnitee desire to enter into this Agreement
pursuant to which Indemnitor undertakes to indemnify Indemnitee against such
risk to the fullest extent permitted to do so by Delaware law.
NOW, THEREFORE, Indemnitor and Indemnitee hereby agree as follows:
1. INDEMNIFICATION
1.1. Subject to Section 1.3 hereof, Indemnitor shall hold harmless
and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative,
involving Indemnitee by reason of the fact that he is or was
a director or officer, or both, of Indemnitor (or by reason of
the fact that he is or was serving at the request of Indemnitor
as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise) including all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement, to the
broadest and maximum extent permitted by Delaware law.
1.2. Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
1.2.1. extend to and fully cover any Loss (as hereinafter
defined) arising from any Claim (as hereinafter
defined), whether such Claim is made against
Indemnitee, individually or jointly with others, by
reason of any Wrongful Act (as hereinafter defined)
made in Indemnitee's capacity as a director, officer,
employee and/or agent;
1.2.2. include all rights of indemnification provided to
Indemnitee under the existing provisions of the
certificate of incorporation or bylaws of Indemnitor;
and
1.2.3. include all such additional rights of indemnification
that could possibly be provided to Indemnitee under the
certificate of incorporation or bylaws of Indemnitor or
under Delaware law.
1.3. Nothing in this Section 1 shall be deemed to provide any
indemnity by Indemnitor to Indemnitee on account of any matter:
1.3.1. in respect to remuneration paid to Indemnitee but only
to the extent that it shall be determined by a final
judgment or other final adjudication that such
remuneration was in violation of law; or
1.3.2. for an accounting of profits made from the purchase or
sale by Indemnitee of securities of either Indemnitor
within the meaning of Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory
law; or
1.3.3. brought about or contributed to by the dishonesty of
Indemnitee but only to the extent that a final judgment
or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate
dishonesty were committed or attempted by Indemnitee
with actual dishonest purpose and intent and were
material to the adjudication; or
1.3.4. that is based on or attributable to Indemnitee having
gained any personal profit or advantage to which
Indemnitee was not entitled but only to the extent
that a final judgment or other final adjudication
adverse to Indemnitee establishes that Indemnitee in
fact gained such personal profit or other advantage
to which Indemnitee was not entitled; or
1.3.5. in respect of which any final decision by a court
having jurisdiction of the matter shall have
determined that indemnification is not lawful.
1.4. Indemnitor promptly shall pay the expenses (including
attorneys' fees) incurred by Indemnitee in defending any
civil or criminal action, suit or proceeding, as such
expenses are incurred and prior to the final disposition of
such action, suit or proceeding, provided that Indemnitor
receives a written undertaking by or on behalf of Indemnitee
to repay such amounts advanced if it is ultimately determined
that he is not entitled to be indemnified by Indemnitor as
authorized under this Agreement. Indemnitor shall perform its
obligation under this Section 1.4 until such time as it may
be determined that Indemnitee is not entitled to
indemnification by virtue of one or more of the exclusions
set forth in Section 1.3 hereof.
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1.5. The reference in Section 1.1 hereof to Delaware law is to
Delaware law as the same exists from time to time, but, in
the case of any amendment to or change in Delaware law,
subject to Section 6, only to the extent that such amendment
or change permits Indemnitor to provide broader or greater
rights of indemnification than is permitted to Indemnitor
prior to such amendment or change.
2. DEFINITIONS
2.1. The term "Loss" shall mean any amount Indemnitee is obligated
or asserted to be obligated to pay in respect of Indemnitee's
legal liability, whether actual or asserted, for a Wrongful
Act, and shall include damages, judgments, settlements and
costs, attorneys' fees, charges and expenses incurred in the
defense of Claims.
2.2. The term "Wrongful Act" shall mean any breach of duty,
neglect, error, misstatement, misleading statement, omission
or other act done or wrongfully attempted by Indemnitee so
alleged by any claimant or any other matter claimed against
Indemnitee by reason of Indemnitee being a director, officer,
employee or agent.
2.3. The term "Subsidiary" shall mean any corporation of which at
least 50% of the equity securities is owned by Indemnitor or
by another Subsidiary.
2.4. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against
or with respect to Indemnitee or the property of Indemnitee,
or both, either by or in the right of Indemnitor or by or in
the right of a party other than Indemnitor.
3. SCOPE OF INDEMNIFICATION
This Agreement and the indemnification provided herein:
3.1. Shall apply to Indemnitee in Indemnitee's capacity or
capacities as a director, officer, employee or agent, or the
like, of (i) Indemnitor, (ii) any Subsidiary or former
Subsidiary, or any Subsidiary that is hereafter acquired or
created by Indemnitor and (iii) corporations, partnerships,
associations and entities other than Indemnitor and
Indemnitor's Subsidiaries where Indemnitee is directed or
requested to serve by Indemnitor;
3.2. Shall be irrevocable and perpetual, and subject to Section
1.3 hereof, shall apply to any Claim arising or Loss incurred
after the date hereof, whether made or incurred prior to or
after the termination of Indemnitee's services to Indemnitor
as a director, officer, employee or agent; and
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3.3. Subject to Section 1.3 hereof, shall cover Losses arising
from any Claims made against the estate, heirs, legal
representatives or assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED
The purpose of this Agreement is to induce Indemnitee either to serve
Indemnitor in one or more of the capacities described in Section 3.1
hereof, or to induce Indemnitee to continue to serve in one or more such
capacities. Indemnitor acknowledges that, but for this Agreement and the
expectation by Indemnitee that Indemnitor will perform each of its
obligations hereunder, Indemnitee may not consent to serve or to
continue to serve Indemnitor in such capacities. Therefore, it is the
intention of Indemnitor and Indemnitee that this Agreement be liberally
construed so as to achieve its purpose of, subject to Section 1 hereof,
protecting Indemnitee from and against Losses arising from Wrongful
Acts. Indemnitor will not do or fail to do any act that would or might
prevent or hinder the performance by Indemnitor of its obligations
under this Agreement.
5. AGREEMENT NOT EXCLUSIVE
The rights and benefits of Indemnitee, and the obligations of
Indemnitor, under this Agreement shall be in addition to, and shall
not supersede or be in lieu of, the provisions (if any) in the
certificate of incorporation or bylaws of Indemnitor relating to the
indemnification of Indemnitee by Indemnitor; the provisions of
policies of insurance of Indemnitor; the provisions of policies of
insurance or indemnification arrangements provided by persons or
entities other than Indemnitor; or applicable law. Notwithstanding
anything to the contrary in this Agreement, Indemnitor shall defend,
indemnify and hold harmless Indemnitee to the full extent permitted
from time to time by applicable law. Indemnitor, however, shall not
be liable to Indemnitee to make any payment with respect to any claim
made against Indemnitee 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 the payment under
such policy.
6. SEVERABILITY
Nothing in this Agreement is intended to require or shall be
construed as requiring Indemnitor to do or fail to do any act in
violation of applicable law. If any provision of this Agreement is
finally determined by a court of competent jurisdiction to require
Indemnitor to do or fail to do such an act, such provision shall be
limited or modified in its application to the extent necessary to
avoid a violation of law, and as so limited or modified such
provision and the balance of this Agreement shall be enforceable in
accordance with their terms.
7. CHOICE OF LAW
This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of the State of Delaware without regard to
provisions concerning conflict of laws.
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8. CHOICE OF FORUM
Any action instituted by or on behalf of Indemnitor under this
Agreement or to enforce or interpret any provision of this Agreement
shall be brought only in the state courts of the State of Delaware
and in no other court. If any action is instituted in any court by
Indemnitee under this Agreement or to enforce or interpret any of its
terms, Indemnitor hereby consents, and will at such time consent, to
the exclusive jurisdiction and exclusive venue of such court, and
shall cooperate with any request by Indemnitee to transfer or remove
such action to another court.
9. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon Indemnitor and its successors and
assigns, and shall inure to the benefit of Indemnitee or Indemnitee's
estate, heirs, legal representatives and assigns.
10. MODIFICATION, AMENDMENT OR WAIVER
No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both the parties hereto. Any
term or provision of this Agreement may be waived at any time by the
party entitled to the benefit thereof, but only by a written
instrument executed by such party. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof nor shall such waiver constitute a continuing
waiver.
11. ATTORNEYS' FEES
If any action is instituted by Indemnitee under this Agreement to
enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee with respect to such action,
unless as a part of such action the court determines that each of the
material assertions made by Indemnitee as a part of such action were
not made in good faith or were frivolous. If any action is instituted
by or in the name of the Indemnitor under this Agreement to enforce
or interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee in defense of such
action (including with respect to Indemnitee's counterclaims and
cross claims made in such action), unless as a part of such action
the court determines that each of the Indemnitee's material defenses
to such action were made in bad faith or were frivolous.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of
which will be an original, with the same effect as if the signatures
hereto were upon the same instrument.
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13. CONTENTS OF AGREEMENT
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements
or understandings between the parties regarding such matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FOILMARK, INC.
/s/
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By: Xxxxx X. Xxxxx, Xx.
Title: President and Chief Executive Officer
/s/
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Xxxxxxx X. Xxxxxxx
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