EXHIBIT 10(f)
INDEMNIFICATION AGREEMENT
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THIS INDEMNIFICATION AGREEMENT is entered into as of this ___________ day
of _____________, 1997, by and between [ ] , a Delaware corporation
(the "Company"), and ___________________________________ ("Indemnitee").
RECITALS
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A. The Company is aware that because of the increased exposure to
litigation costs, talented and experienced persons are increasingly reluctant to
serve or continue serving as directors and officers of corporations unless they
are protected by comprehensive liability insurance and indemnification.
B. The statutes and judicial decisions regarding the duties of directors
and officers are often difficult to apply, ambiguous, or conflicting, and
therefore fail to provide such directors and officers with adequate guidance
regarding the proper course of action.
C. The Board of Directors of the Company (the "Board") has concluded that,
in order to retain and attract talented and experienced individuals to serve as
officers and directors of the Company and its subsidiaries and to encourage such
individuals to take the business risks necessary for the success of the Company
and its subsidiaries, the Company should contractually indemnify its officers
and directors, and the officers and directors of its subsidiaries, in connection
with claims against such officers and directors in connection with their
services to the Company and its subsidiaries, and has further concluded that the
failure to provide such contractual indemnification could be detrimental to the
Company, its subsidiaries and stockholders.
NOW, THEREFORE, the parties, intending to be legally bound, hereby agree as
follows:
1. Definitions.
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(a) Agent. "Agent" with respect to the Company means any person who is or
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was a director, officer, employee or other agent of the Company or a Subsidiary
of the Company; or is or was serving at the request of, for the convenience of,
or to represent the interests of, the Company or a Subsidiary of the Company as
a director, officer, employee or agent of another entity or enterprise; or was a
director, officer, employee or agent of a predecessor corporation (or other
predecessor entity or enterprise) of the Company or a Subsidiary of the Company,
or was a director, officer, employee or agent of another enterprise at the
request of, for the convenience of, or to represent the interests of such
predecessor.
(b) Expenses. "Expenses" means all direct and indirect costs of any type
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or nature
whatsoever (including, without limitation, all attorneys' fees, costs of
investigation and related disbursements) incurred by the Indemnitee in
connection with the investigation, settlement, defense or appeal of a Proceeding
covered hereby or the establishment or enforcement of a right to indemnification
under this Agreement.
(c) Proceeding. "Proceeding" means any threatened, pending, or completed
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claim, suit or action, whether civil, criminal, administrative, investigative or
otherwise.
(d) Subsidiary. "Subsidiary" means any corporation or other entity of
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which more than 10% of the outstanding voting securities or other voting
interests is owned directly or indirectly by the Company, and one or more other
Subsidiaries, taken as a whole.
2. Maintenance of Liability Insurance.
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(a) The Company hereby covenants and agrees with Indemnitee that, subject
to Section 2(b), the Company shall obtain and maintain in full force and effect
directors' and officers' liability insurance ("D&O Insurance") in reasonable
amounts as the Board of Directors shall determine from established and reputable
insurers, but no less than the amounts in effect upon initial procurement of the
D&O Insurance. In all policies of D&O Insurance, Indemnitee shall be named as an
insured.
(b) Notwithstanding the foregoing, the Company shall have no obligation to
obtain or maintain D&O Insurance if the Company determines in good faith that
the premium costs for such insurance are (i) disproportionate to the amount of
coverage provided after giving effect to exclusions, and (ii) substantially more
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burdensome to the Company than the premiums charged to the Company for its
initial D&O Insurance.
(c) If the Company completes an initial underwritten public offering of
its securities, then thereafter (i) for purposes of Sections 2(b) hereof the
"initial D&O Insurance" shall be deemed to be the D&O Insurance in effect at the
time of the closing of such offering and (ii) for purposes of Section 2(a)
hereof "the amounts in effect upon initial procurement" shall be deemed to be
the amount in effect at the time of the closing of such offering.
3. Mandatory Indemnification. The Company shall defend, indemnify and
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hold harmless Indemnitee:
(a) Third Party Actions. If Indemnitee is a person who was or is a party,
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or is threatened to be made a party, to any Proceeding (other than an action by
or in the right of the Company) by reason of the fact that Indemnitee is or was
or is claimed to be an Agent of the Company, or by reason of anything done or
not done by Indemnitee in any such capacity, or by reason of the fact that
Indemnitee personally guaranteed any obligation of the Company at any time,
against any and all Expenses and liabilities or any type whatsoever (including,
but not limited to, legal fees, judgments, fines, ERISA excise taxes or
penalties, and amounts paid in settlement) incurred by such person in connection
with the investigation, defense, settlement or appeal of such Proceeding, so
long as the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not
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opposed to the best interests of the Company, or, with respect to any criminal
action or Proceeding, had no reasonable cause to believe such person's conduct
was unlawful.
(b) Derivative Actions. If Indemnitee is a person who was or is a party,
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or is threatened to be made a party, to any Proceeding by or in the right of the
Company by reason of the fact that he is or was an Agent of the Company, or by
reason of anything done or not done by him in any such capacity, against any and
all Expenses and liabilities of any type whatsoever (including, but not limited
to, legal fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid in settlement) incurred by him in connection with the investigation,
defense, settlement or appeal of such Proceeding, so long as the Indemnitee
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company; except that no indemnification
under this subsection shall be made, and Indemnitee shall repay all amounts
previously advanced by the Company, in respect of any claim, issue or matter for
which such person is judged in a final, non-appealable decision to be liable to
the Company by a court of competent jurisdiction due to willful misconduct in
the performance of his duties to the Company, unless and only to the extent that
the court in which such Proceeding was brought or the Court of Chancery of
Delaware shall determine that Indemnitee is fairly and reasonably entitled to
indemnity.
(c) Actions Where Indemnitee Is Deceased. If Indemnitee is a person who
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was or is a party, or is threatened to be made a party, to any Proceeding by
reason of the fact that he is or was an Agent of the Company, or by reason of
anything done or not done by him in any such capacity, and prior to, during the
pendency of, or after completion of, such Proceeding, the Indemnitee shall die,
then the Company shall defend, indemnify and hold harmless the estate, heirs and
legatees of the Indemnitee against any and all Expenses and liabilities incurred
by or for such persons or entities in connection with the investigation,
defense, settlement or appeal of such Proceeding on the same basis as provided
for the Indemnitee in Sections 3(a) and 3(b) above.
The Expenses and liabilities covered hereby shall be net of any payments by D&O
Insurance carriers or others.
4. Partial Indemnification. If Indemnitee is found under Section 3, 6 or
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9 hereof not to be entitled to indemnification for all of the Expenses relating
to a Proceeding, the Company shall indemnify the Indemnitee for any portion of
such Expenses not specifically precluded by the operation of such Section 3, 6
or 9.
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5. Indemnification Procedures; Mandatory Advancement of Expenses.
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(a) Promptly after receipt by Indemnitee of notice to him or her of the
commencement or threat of any Proceeding covered hereby, Indemnitee shall notify
the Company of the commencement or threat thereof, provided that any failure to
so notify shall not relieve the Company of any of its obligations hereunder.
(b) If, at the time of the receipt of a notice pursuant to Section 5(a)
above, the Company has D&O Insurance in effect, the Company shall give prompt
notice of the Proceeding or claim to its insurers in accordance with the
procedures set forth in the applicable policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay all amounts
payable as a result of such Proceeding in accordance with the terms of such
policies.
(c) Indemnitee shall be entitled to retain one or more counsel from time to
time selected by it in its sole discretion to act as its counsel in and for the
investigation, defense, settlement or appeal of each Proceeding. The Company
shall not waive any privilege or right available to Indemnitee in any such
Proceeding.
(d) The Company shall bear all fees and Expenses (including invoices for
advance retainers) of such counsel, and all fees and Expenses invoiced by other
persons or entities, in connection with the investigation, defense, settlement
or appeal of each such Proceeding. Such fees and Expenses are referred to herein
as "Covered Expenses."
(e) Until a determination to the contrary under Section 6 hereof is made,
the Company shall advance all Covered Expenses in connection with each
Proceeding. If required by law, as a condition to such advances, Indemnitee
shall, at the request of the Company, agree to repay such amounts advanced if it
shall ultimately be determined by a final order of a court that Indemnitee is
not entitled to be indemnified by the Company by the terms hereof or under
applicable law.
(f) Each advance to be made hereunder shall be paid by the Company to
Indemnitee within 10 days following delivery of a written request therefor by
Indemnitee to the Company.
(g) The Company acknowledges the potentially severe damage to Indemnitee
should the Company fail timely to make such advances to Indemnitee.
6. Determination of Right to Indemnification.
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(a) To the extent Indemnitee has been successful on the merits or otherwise
in defense of any Proceeding, claim, issue or matter covered hereby, Indemnitee
need not repay any of the Expenses advanced in connection with the
investigation, defense or appeal of such Proceeding.
(b) If Section 6(a) is inapplicable, the Company shall remain obligated to
indemnify Indemnitee, and Indemnitee need not repay Expenses previously
advanced, unless the Company, by motion before a court of competent
jurisdiction, obtains an order for preliminary or permanent relief
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suspending or denying the obligation to advance or indemnify for Expenses.
(c) Notwithstanding a determination by a court that Indemnitee is not
entitled to indemnification with respect to a specific Proceeding, Indemnitee
shall have the right to apply to the Court of Chancery of Delaware for the
purpose of enforcing Indemnitee's right to indemnification pursuant to this
Agreement.
(d) Notwithstanding any other provision in this Agreement to the contrary,
the Company shall indemnify Indemnitee against all Expenses incurred by
Indemnitee in connection with any Proceeding under Section 6(b) or 6(c) and
against all Expenses incurred by Indemnitee in connection with any other
Proceeding between the Company and Indemnitee involving the interpretation or
enforcement of the rights of Indemnitee under this Agreement unless a court of
competent jurisdiction finds that each of the material claims and/or defenses of
Indemnitee in any such Proceeding were frivolous or made in bad faith.
7. Certificate of Incorporation and By-Laws. The Company agrees that the
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Company's Certificate of Incorporation and By-laws in effect on the date hereof
shall not be amended to reduce, limit, hinder or delay (i) the rights of
Indemnitee granted hereby, or (ii) the ability of the Company to indemnify
Indemnitee as required hereby. The Company further agrees that it shall
exercise the powers granted to it under its Certificate of Incorporation, its
By-laws and by applicable law to indemnify Indemnitee to the fullest extent
possible as required hereby.
8. Witness Expenses. The Company agrees to compensate Indemnitee for the
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reasonable value of his or her time spent, and to reimburse Indemnitee for all
Expenses (including attorneys' fees and travel costs) incurred by him or her, in
connection with being a witness, or if Indemnitee is threatened to be made a
witness, with respect to any Proceeding, by reason of his or her serving or
having served as an Agent of the Company.
9. Exceptions. Notwithstanding any other provision hereunder to the
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contrary, the Company shall not be obligated pursuant to the terms of this
Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance Expenses to
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Indemnitee with respect to Proceedings or claims initiated or brought
voluntarily by Indemnitee and not by way of defense (other than Proceedings
under Section 6(b) or Section 6(c) or brought to establish or enforce a right to
indemnification under this Agreement or the provisions of the Company's
Certificate of Incorporation or By-laws unless a court of competent jurisdiction
determines that each of the material assertions made by Indemnitee in such
Proceeding were not made in good faith or were frivolous).
(b) Unauthorized Settlements. To indemnify Indemnitee under this
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Agreement for any amounts paid in settlement of a Proceeding covered hereby
without the prior written consent of the Company to such settlement.
10. Non-exclusivity. This Agreement is not the exclusive arrangement
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between the Company and Indemnitee regarding the subject matter hereof and shall
not diminish or affect any
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other rights which Indemnitee may have under any provision of law, the Company's
Certificate of Incorporation or By-laws, under other agreements, or otherwise.
11. Continuation After Term. Indemnitee's rights hereunder shall continue
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after the Indemnitee has ceased acting as a director or Agent of the Company and
the benefits hereof shall inure to the benefit of the heirs, executors and
administrators of Indemnitee.
12. Interpretation of Agreement. This Agreement shall be interpreted and
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enforced so as to provide indemnification to Indemnitee to the fullest extent
now or hereafter permitted by law.
13. Severability. If any provision or provisions of this Agreement shall
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be held to be invalid, illegal or unenforceable, provisions of the Agreement
shall not in any way be affected or impaired thereby, and to the fullest extent
possible, the provisions of this Agreement shall be construed or altered by the
court so as to remain enforceable and to provide Indemnitee with as many of the
benefits contemplated hereby as are permitted under law.
14. Counterparts, Modification and Waiver. This Agreement may be signed
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in counterparts. This Agreement constitutes a separate agreement between the
Company and Indemnitee and may be supplemented or amended as to Indemnitee only
by a written instrument signed by the Company and Indemnitee, with such
amendment binding only the Company and Indemnitee. All waivers must be in a
written document signed by the party to be charged. No waiver of any of the
provisions of this Agreement shall be implied by the conduct of the parties. A
waiver of any right hereunder shall not constitute a waiver of any other right
hereunder.
15. Notices. All notices, demands, consents, requests, approvals and
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other communications required or permitted hereunder shall be in writing and
shall be deemed to have been properly given if hand delivered (effective upon
receipt or when refused), or if sent by a courier freight prepaid (effective
upon receipt or when refused), in the case of the Company, at the addresses
listed below, or to such other addresses as the parties may notify each other in
writing.
To Company: [ ]
Four Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: President
With a copy to:
Xxxxx X. Xxxxxx, Esq.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
To Indemnitee: At the Indemnitee's residence address and facsimile number on the
records of the Company from time to time.
16. Evidence of Coverage. Upon request by Indemnitee, the Company shall
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provide
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evidence of the liability insurance coverage required by this Agreement. The
Company shall promptly notify Indemnitee of any change in the Company's D&O
Insurance coverage.
17. Governing Law. This Agreement shall be governed by and construed in
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accordance with the internal laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have entered into this
Indemnification Agreement effective as of the date first above written.
[ ]
By ______________________
INDEMNITEE:
_________________________
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