Exhibit 10.1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement
(the "Agreement") is entered into as of _______ __, 2006, by and
among ____________________, a __________ corporation (the
"Company") and the undersigned party (the "Indemnitee").
RECITALS
A. Indemnitee, as an officer
and/or director of the Company, or a person who otherwise performs
valuable services for the Company.
B. In order to induce the
Indemnitee to serve or continue to serve as a director and/or an
officer of the Company or otherwise provide support services to the
Company, the Company has determined and agreed to enter into this
contract with the Indemnitee.
NOW, THEREFORE, in consideration
of the Indemnitee's continued service as an officer and/or director
and other support of the Company after the date hereof, the parties
hereto agree as follows:
1. Indemnification.
a. Indemnification of Expenses.
The Company shall indemnify and hold harmless the Indemnitee to the
fullest extent permitted by law, if the Indemnitee was or is or
becomes a party to or witness or other participant in, or is
threatened to be made a party to or witness or other participant
in, any threatened, pending or completed action, suit, proceeding
or alternative dispute resolution mechanism, or any hearing,
inquiry or investigation that the Indemnitee believes might lead to
the institution of any such action, suit, proceeding or alternative
dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other by reason of (or arising in
part out of) any event or occurrence related to the fact that the
Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or any direct or indirect subsidiary of
the Company or any direct or indirect parent of the Company, or is
or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust or other enterprise, or by reason
of any action or inaction on the part of the Indemnitee while
serving in such capacity (hereinafter a "Claim") against any and
all losses, judgments, claims, damages, liabilities, amounts paid
in settlement (if such settlement is approved in writing in advance
by the Company), fines (including excise taxes and penalties
assessed with respect to employee benefit plans), penalties
(whether civil, criminal or otherwise) and all interest,
assessments and other charges paid or payable in connection with or
in respect of any of the foregoing (collectively, hereinafter
"Losses") and against any and all expenses (including attorneys'
fees and all other costs, expenses and obligations incurred in
connection with investigating, defending, serving as a witness in
or participating in (including on appeal), or preparing to defend,
be a witness in or participate in, any such action, suit,
proceeding, alternative dispute resolution mechanism, hearing,
inquiry or investigation), of such Claim (collectively,
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hereinafter "Expenses") and any
federal, state, local or foreign taxes imposed on the Indemnitee as
a result of the actual or deemed receipt of any payments under this
Agreement. Such payment of Expenses shall be made by the Company as
soon as practicable but in any event no later than ten (10)
business days after (i) written demand by the Indemnitee therefor
is presented to the Company or (ii) such later date as a
determination of entitlement to indemnification is made in
accordance with the provision of this Agreement.
b. Reviewing Party.
Notwithstanding the foregoing, (i) the obligations of the Company
under Section 1(a) shall be subject to the condition that the
Reviewing Party (as described in Section 10(e) hereof) shall have
determined (in a written opinion, in any case in which the
Independent Legal Counsel referred to in Section 10(d) hereof is
involved) that the Indemnitee would be permitted to be indemnified
under applicable law or that an exception described in Section 8
applies, and (ii) the Indemnitee acknowledges and agrees that the
obligation of the Company to make an advance payment of Expenses to
the Indemnitee pursuant to Section 2(a) (an "Expense Advance")
shall be subject to the condition that, if, when and to the extent
that the Reviewing Party determines that the Indemnitee would not
be permitted to be so indemnified under applicable law, the Company
shall be entitled to be reimbursed by the Indemnitee (who hereby
agrees to reimburse the Company) for all such amounts theretofore
paid; provided, however, that if the Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that the Indemnitee should
be indemnified under applicable law, any determination made by the
Reviewing Party that the Indemnitee would not be permitted to be
indemnified under applicable law shall not be binding and the
Indemnitee shall not be required to reimburse the Company for any
Expense Advance until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have
been exhausted or lapsed). The Indemnitee's obligation to reimburse
the Company for any Expense Advance shall be unsecured and no
interest shall be charged thereon. If applicable law requires, any
advancement of Expenses will be made only upon delivery to the
Company of an undertaking, by or on behalf of Indemnitee, to repay
such Expenses if it is ultimately determined, by a final decision
by a court or arbitrator, as applicable, from which there is no
further right to appeal, that Indemnitee is not entitled to be
indemnified for such Expenses under the Company's charter
documents, this Agreement, applicable law or otherwise. The
Reviewing Party shall be selected by the Board of Directors or
similar governing body of the Company. If there has been no
determination by the Reviewing Party or if the Reviewing Party
determines that the Indemnitee substantively would not be permitted
to be indemnified in whole or in part under applicable law, the
Indemnitee shall have the right to commence litigation seeking an
initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof,
including the legal or factual bases therefor, and the Company
hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise
shall be conclusive and binding on the Company and the
Indemnitee.
c. Mandatory Payment of Expenses.
Notwithstanding any other provision of this Agreement except for
Section 8, to the extent that an Indemnitee has been successful on
the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in the defense of any
action, suit, proceeding, inquiry or investigation referred to in
Section 1(a) hereof or in the defense of any claim, issue or matter
therein, the Indemnitee shall be indemnified against all Expenses
incurred by the Indemnitee in connection herewith.
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2. Expenses; Indemnification
Procedure.
a. Advancement of Expenses. Subject to Section
1(b), the Company shall advance all Expenses incurred by an
Indemnitee. The advances to be made hereunder shall be paid by the
Company to the Indemnitee as soon as practicable but in any event
no later than ten (10) business days after written demand by the
Indemnitee therefor to the Company. Indemnitee is not entitled to
be advanced any Expenses in connection with any of the matters for
which indemnity is excluded pursuant to Section 8.
b. Notice/Cooperation by the
Indemnitee. The Indemnitee shall give the Company notice in writing
as soon as practicable of any Claim made against the Indemnitee for
which indemnification will or could be sought under this Agreement.
Notice to the Company shall be directed to the Chief Executive
Officer of the Company at the Company's address (or such other
address as the Company shall designate in writing to the
Indemnitee). The Indemnitee will cooperate with the person, persons
or entity making a determination with respect to the Indemnitee's
entitlement to indemnification, including providing to such person,
persons or entity, upon reasonable advance request, any
documentation or information which is reasonably available to the
Indemnitee and reasonably necessary to such determination. Any
Expenses incurred by Indemnitee in so cooperating with the person,
persons or entity making such determination will be borne by the
Company (irrespective of the determination as to the Indemnitee's
entitlement to indemnification) and the Company will indemnify the
Indemnitee therefor and will hold the Indemnitee harmless
therefrom.
c. No Presumptions; Burden of
Proof. For purposes of this Agreement, the termination of any Claim
by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that the Indemnitee did
not meet any particular standard of conduct or have any particular
belief or that a court has determined that indemnification is not
permitted by applicable law. In addition, neither the failure of
the Reviewing Party to have made a determination as to whether the
Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by the Reviewing
Party that the Indemnitee has not met such standard of conduct or
did not have such belief, prior to the commencement of legal
proceedings by the Indemnitee to secure a judicial determination
that the Indemnitee should be indemnified under applicable law,
shall be a defense to the Indemnitee's claim or create a
presumption that the Indemnitee has not met any particular standard
of conduct or did not have any particular belief.
d. Notice to Insurers. If, at the
time of the receipt by the Company of a notice of a Claim pursuant
to Section 2(b) hereof, the Company has liability insurance in
effect that may cover such Claim, the Company shall give prompt
notice of the commencement of such Claim to the insurers in
accordance with the procedures set forth in each of the policies.
The Company shall thereafter take all necessary or desirable action
to cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such action, suit, proceeding,
inquiry or investigation in accordance wi
