EXHIBIT
10.5
AMENDED AND
RESTATED
INDEMNIFICATION
AGREEMENT
THIS AMENDED AND RESTATED
INDEMNIFICATION AGREEMENT (the “Agreement”) is made as
of this __ day of ______, 200_ by and between Franklin Resources,
Inc., a Delaware corporation (the “Company” or
“Indemnitor”), and the individual whose name is set
forth under “Indemnitee” on the signature page to this
Agreement (the “Indemnitee”).
WITNESSETH:
WHEREAS, it is essential to the
Company to retain and attract as directors and officers the most
capable persons available;
WHEREAS, Indemnitee is a director or
officer of the Company;
WHEREAS, both the Company and
Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of public
companies in today’s environment;
WHEREAS, while basic protection
against undue risk of personal liability of directors and officers
has been provided through insurance coverage, such insurance may
not provide adequate protection against such litigation and
claims;
WHEREAS, the Certificate of
Incorporation and by-laws of the Company, as amended, require the
Company to indemnify its directors and officers as provided therein
and Indemnitee has been serving and continues to serve as a
director or officer of the Company in part in reliance on such
Certificate of Incorporation and by-laws;
WHEREAS, in recognition of
Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service
to the Company in an effective manner, and Indemnitee’s
reliance on the aforesaid Certificate of Incorporation and by-laws,
and in part to provide Indemnitee with specific contractual
assurance that the protection specified in the Certificate of
Incorporation and by-laws, as amended, will be available to
Indemnitee (regardless of, among other things, any amendment to or
revocation of such Certificate of Incorporation or by-laws, any
change in the composition of the Company’s Board of Directors
or any acquisition transaction relating to the Company), the
Company wishes to provide in this Agreement for the indemnification
of and the advancing of expenses to Indemnitee to the full extent
(whether partial or complete) permitted by law and as set forth in
this Agreement, and, to the extent insurance is maintained, for the
continued coverage of Indemnitee under the Company’s
directors’ and officers’ liability insurance
policies;
WHEREAS, Indemnitee and the Company
previously entered into an Indemnification Agreement (the
“Prior Indemnification Agreement”) and now desire,
through the execution of this Agreement, to cause such Prior
Indemnification Agreement to be amended and restated in its
entirety in the form of, and in conformity with, this
Agreement;
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NOW, THEREFORE, in consideration of the premises
and of Indemnitee continuing to serve the Company directly or, at
its request, with another enterprise, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Certain Definitions
.
(a) Change in Control shall
be deemed to have occurred if (i) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Act”)), other
than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of
the Company, is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Act), directly or indirectly, of
securities of the Company representing 20% or more of the total
voting power represented by the Company’s then outstanding
Voting Securities, except (A) a person who as of
December 31, 2005 owned 15% or more of the total voting power
represented by the Company’s outstanding Voting Securities
(the “Existing Holder”) shall not be deemed to have
caused a change in control until such person becomes the beneficial
owner, directly or indirectly, of more than 50% of the then
outstanding Voting Securities, or (B) a person who becomes a
beneficial owner, directly or indirectly, of securities of the
Company representing 20% or more of the total voting power
represented by the Company’s then outstanding Voting
Securities shall not be deemed to have caused a change in control
unless such person also owns more of the total voting power
represented by the Company’s outstanding Voting Securities
than is owned by the Existing Holder at the time such person
becomes owner of such securities, or (ii) during any period of
two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for
election by the Company’s stockholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or
whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof, or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
a merger or consolidation which would result in the Voting
Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into Voting Securities of the surviving entity) at
least 80% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders
of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company
of all or substantially all of the Company’s
assets.
(b) Claim shall mean any
threatened, pending or completed action, suit or proceeding, or any
inquiry or investigation, whether instituted by the Company or any
other party, that Indemnitee in good faith believes might lead to
the institution of any such action, suit or proceeding, whether
civil, criminal, administrative, investigative or other, including
any appeal therefrom, provided that Claim shall not include any
action, suit or proceeding brought by Indemnitee contemplated by
Section 5.
(c) Expenses shall mean
attorneys’ fees and all other costs, expenses and obligations
paid or incurred in connection with investigating, defending, being
a witness in or participating in (including on appeal), or
preparing to defend, be a witness in or participate in, any Claim
relating to any Indemnifiable Event.
(d) Indemnifiable Event shall
mean any event or occurrence related to the fact that Indemnitee is
or was a director, officer, employee, agent or fiduciary of the
Company, or is or
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was serving at the request of the
Company as a director, officer, employee, trustee, agent or
fiduciary of another corporation, partnership, joint venture,
employee benefit plan, trust or other enterprise, or by reason of
anything done or not done by Indemnitee in any such
capacity.
(e) 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, or (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) any person, other
than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of
the Company, who is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 9.5% or more
of the combined voting power of the Company’s then
outstanding Voting Securities, increases his beneficial ownership
of such securities by 5% or more over the percentage so owned by
such person as of December 31, 2005, except (A) an
Existing Holder which increases its beneficial ownership of such
securities by 5% or more over the percentage so owned as of
December 31, 2005 shall not be deemed to have caused a
potential change in control, unless such increase results in such
person becoming the beneficial owner, directly or indirectly, of
more than 50% of the then outstanding Voting Securities, or
(B) a person who is or becomes the beneficial owner, directly
or indirectly, of the voting power representing 9.5% or more of the
Company’s Voting Securities and increases his beneficial
ownership of such securities by 5% or more over the percentage so
owned by such person as of December 31, 2005 shall not be
deemed to have caused a potential change in control to have
occurred unless, including such increase in ownership, such person
owns more of the voting power represented by the Company’s
Voting Securities than is owned by the Existing Holder at the time
such person increases his ownership, or (iv) the
Company’s Board of Directors adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change in
Control has occurred.
(f) Reviewing Party shall
mean any appropriate person or body consisting of a member or
members of the Company’s Board of Directors or any other
person or body appointed by the Company’s Board of Directors
(including the special, independent counsel referred to in
Section 3 her
