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Exhibit 99.2
FORM
INNOPHOS HOLDINGS, INC.
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement ("Agreement") is made as of
, by and between Innophos Holdings, Inc., a Delaware corporation
(the "Company"), and
("Indemnitee").
WHEREAS , Indemnitee is an officer and/or director of the
Company and performs a valuable service in such capacity for the
Company;
WHEREAS , the Company and Indemnitee recognize the
substantial increase in corporate litigation in general, subjecting
directors, officers, employees, agents and fiduciaries to expensive
litigation risks at the same time as the availability and coverage
of liability insurance may be limited;
WHEREAS , the Company and Indemnitee further recognize
the difficulty in obtaining liability insurance for its directors,
officers, employees, agents and fiduciaries, the significant
increases in the cost of such insurance and the general reductions
in the coverage of such insurance;
WHEREAS , Indemnitee does not regard the current
protection available as adequate under the present circumstances,
and the Indemnitee and other directors, officers, employees, agents
and fiduciaries of the Company may not be willing to continue to
serve in such capacities without additional protection; and
WHEREAS , the Company desires to attract and retain the
services of highly qualified individuals, such as Indemnitee, to
serve the Company and, in part, in order to induce Indemnitee to
continue to provide services to the Company as an officer and/or
director, the Company wishes to provide for the indemnification and
advancing of expenses to Indemnitee to the maximum extent permitted
by law.
NOW, THEREFORE , the Company and Indemnitee hereby agree
as follows:
1. Indemnification .
(a) Indemnification of Expenses . The Company shall
indemnify Indemnitee to the fullest extent permitted by law if
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 Indemnitee
in good faith believes might lead to the institution of any such
action, suit, proceeding or alternative dispute resolution
mechanism, whether civil, criminal, administrative, investigative
or other (hereinafter a "Claim") by reason of (or arising in part
out of) any event or occurrence related to the fact that Indemnitee
is or was a director, officer, employee, agent or fiduciary of the
Company, or any subsidiary 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
Indemnitee while serving in such capacity (hereinafter an
"Indemnifiable Event") against any and all expenses (including
reasonable attorneys’ fees and all other reasonable costs,
expenses and obligations 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 such action, suit, proceeding, alternative dispute resolution
mechanism, hearing, inquiry or investigation), judgments, fines,
penalties and amounts paid pursuant to or in settlement (if such
settlement is approved in advance by the Company, which approval
shall not be unreasonably withheld), satisfaction or resolution of
any final non-appealed decision made with respect to such Claim 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 (collectively, hereinafter
"Expenses"), including all interest, assessments and other charges
paid or payable in connection with or in respect of such Expenses.
Such payment of Expenses shall be made by the Company as soon as
practicable but in any event no later than forty-five
(45) days after written demand by Indemnitee therefor is
presented to the Company.
(b) Reviewing Party . Notwithstanding the foregoing,
(i) the obligations of the Company under Section l(a) shall be
subject to the condition that the Reviewing Party (as described in
Section 10(e) hereof) shall not have determined (in a written
opinion, in any case in which the Independent Legal Counsel
referred to in Section 1(c) hereof is involved) that to
indemnify Indemnitee under Section 1(a) would violate
applicable law, and (ii) the obligation of the Company to make
an advance payment of Expenses to 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 to indemnify Indemnitee would violate applicable
law, the Company shall be entitled to be reimbursed by Indemnitee
(who hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if Indemnitee has
commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee
should be indemnified under applicable law, any determination made
by the Reviewing Party that to indemnify Indemnitee would violate
applicable law shall not be binding and 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). Indemnitee’s obligation to reimburse the Company for
any Expense Advance shall be unsecured and no interest shall be
charged thereon. If there has not been a Change in Control (as
defined in Section 10(c) hereof), the Reviewing Party shall be
selected by the Board of Directors, and if there has been such a
Change in Control, the Reviewing Party shall be the Independent
Legal Counsel referred to in Section l(c) hereof. If there has been
no determination by the Reviewing Party or if the Reviewing Party
determines that to indemnifty Indemnitee would substantively
violate applicable law, 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
Indemnitee.
(c) Change in Control . The Company agrees that if
there is a Change in Control of the Company (other than a Change in
Control which has been approved by a majority
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of the Company’s Board of Directors who
were directors immediately prior to such Change in Control) then
with respect to all matters thereafter arising concerning the
rights of Indemnitee to payments of Expenses and Expense Advances
under this Agreement or any other agreement or under the
Company’s Amended and Restated Certificate of Incorporation
(the "Certificate of Incorporation"), or the Company’s
By-Laws as now or hereafter in effect (the "By-Laws"), the Company
shall seek legal advice only from Independent Legal Counsel (as
defined in Section 10(d) hereof) selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably
withheld). Such counsel, among other things, shall render its
written opinion to the Company and Indemnitee as to whether and to
what extent Indemnitee would be permitted to be indemnified under
applicable law. The Company agrees to pay the reasonable fees of
the Independent Legal Counsel referred to above and to fully
indemnify such counsel against any and all expenses (including
attorneys’ fees), claims, liabilities and damages arising out
of or relating to this Agreement or its engagement pursuant
hereto.
(d) Mandatory Payment of Expenses . Notwithstanding
any other provision of this Agreement other than Sections 9 and 13
hereof, to the extent that Indemnitee has been successful on the
merits or otherwise, including, without limitation, the dismissal
of an action with prejudice, in 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, Indemnitee shall be indemnified against all
Expenses incurred by Indemnitee in connection therewith.
2. Expenses; Indemnification Procedure .
(a) Advancement of Expenses . The Company shall
advance all Expenses incurred by Indemnitee. The advances to be
made hereunder shall be paid by the Company to Indemnitee as soon
as practicable but in any event no later than twenty (20) days
after written demand by Indemnitee therefor to the Company.
(b) Notice/Cooperation by Indemnitee . Indemnitee
shall give the Company notice in writing as soon as practicable of
any Claim made against Indemnitee for which indemnification will or
could be sought under this Agreement. Notice to the Company shall
be directed to the President of the Company at the address shown on
the signature page of this Agreement (or such other address as the
Company shall designate in writing to Indemnitee). In addition,
Indemnitee shall give the Company such information and cooperation
as it may reasonably require and as shall be within
Indemnitee’s power.
(c) No Presumptions; Burden of Proof . For purposes
of this Agreement, the termination of any claim, action, suit or
proceeding, 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 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 Indemnitee has met any
particular standard of conduct or had any particular belief, nor an
actual determination by the Reviewing Party that Indemnitee has not
met such standard of conduct or did not have such belief, prior to
the commencement of legal proceedings by Indemnitee to secure a
judicial determination that Indemnitee should be indemnified under
applicable law, shall be a defense to Indemnitee’s claim or
create a presumption that Indemnitee has not met any particular
standard of conduct or did not have any particular belief. In
connection with any determination by the Reviewing Party or
otherwise as to whether the Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Company
to establish that Indemnitee is not so entitled.
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(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 which 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 such policy or
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 with the terms
of such policies.
(e) Assumption of Defense; Selection of Counsel . In
the event the Company shall be obligated hereunder to pay the
Expenses of any action, suit, proceeding, inquiry or investigation,
the Company, if appropriate, shall be entitled to assume the
defense of such action, suit, proceeding, inquiry or investigation
with counsel approved by Indemnitee (which approval shall not be
unreasonably withheld; provided that, Indemnitee shall have the
right to withhold approval if Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of any such defense), and
approved by the Company’s directors and officers, and the
Company’s insurance carrier if, and only if, such insurance
carrier is assuming the fees and expenses of such counsel, upon the
delivery to Indemnitee of written notice of its election so to do.
After delivery of such notice, approval of such counsel by
Indemnitee
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