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Exhibit
10.19
INDEMNIFICATION
AGREEMENT
This Indemnification
Agreement (the “Agreement”) is made between Peak
International Limited, a Bermuda company (the
“Company”), and the person on the signature page hereto
(the “the Indemnitee”) effective as of the date the
Indemnitee first became a director or officer of the
Company.
WHEREAS, it is essential to
the Company to retain and attract as directors and officers the
most capable persons available;
WHEREAS, the Indemnitee is a
director or officer of the Company;
WHEREAS, both the Company and
the Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of public
companies in today’s environment;
WHEREAS, the Bye-Laws of the
Company require the Company to indemnify and advance expenses to
its directors and officers to the fullest extent permitted by law
and the Indemnitee has been serving and continues to serve as a
director and/or officer of the Company in part in reliance on such
Bye-Laws;
WHEREAS, the Board of
Directors of the Company has determined that the inability of the
Company to retain and attract as directors and officers the most
capable persons would be detrimental to the interests of the
Company and that the Company therefore should seek to assure such
persons that indemnification and insurance coverage will be
available in the future;
WHEREAS, in recognition of
the Indemnitee’s need for substantial protection against
personal liability in order to enhance the Indemnitee’s
continued service to the Company in an effective manner, and the
Indemnitee’s reliance on the Company’s Bye-laws, and in
part to provide the Indemnitee with specific contractual assurance
that the protection promised by such Bye-laws will be available to
the Indemnitee (regardless of, among other things, any amendment to
or revocation of such Bye-laws or any change in the composition of
the Company’s Board of Directors or acquisition transaction
relating to the Company), the Company wishes to provide in this
Agreement for the indemnification of and the advancing of expenses
to the Indemnitee to the fullest 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 the Indemnitee under the Company’s directors’ and
officers’ liability insurance policies;
NOW, THEREFORE, in
consideration of the premises and of the Indemnitee continuing to
serve the Company directly or, at its request, another enterprise,
and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Certain Definitions
. In addition to terms defined elsewhere herein, the following
terms have the following meanings when used in this
Agreement:
(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 “Exchange Act”)
is or becomes the “beneficial owner”, directly or
indirectly, of securities of the Company representing fifty percent
(50%) or more of the total voting power represented by the
Company’s then outstanding Voting Securities, or
Peak International Limited
Indemnification Agreement
Page 2 of 8
(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 shareholders 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 shareholders of the
Company approve the consummation of a reconstruction or
amalgamation of the Company with or into any other corporation,
other than a reconstruction or amalgamation that 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 fifty percent (50%) of the total voting power
represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such transaction,
or
(iv) the shareholders of the
Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of (in one
transaction or a series of transactions) all or substantially all
the Company’s assets.
(b) Claim : any
threatened, pending or completed action, suit or proceeding, or
appeal thereof, or any inquiry or investigation, whether instituted
by the Company or any governmental agency or any other party, that
the 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 arbitration
or other alternative dispute resolution mechanism.
(c) Expenses :
attorneys’ fees and all other costs, expenses and obligations
(including, without limitation, experts’ fees, court costs,
retainers, transcript fees, duplicating, printing and binding
costs, as well as telecommunications, postage and courier charges)
paid or incurred in connection with investigating, defending, being
a witness in or participating in (including on appeal), or
preparing to investigate, defend, be a witness in or participate
in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable
Event : 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 is or was serving at the request of
the Company as a director, officer, employee, trustee, agent or
fiduciary of another corporation, limited liability company,
partnership, joint venture, employee benefit plan, trust or other
entity or enterprise, or by reason of anything done or not done by
the Indemnitee in any such capacity.
(e) Independent Legal
Counsel : an attorney or firm of attorneys, selected in
accordance with the provisions of Section 3 hereof, who is
experienced in matters of corporate
Peak International Limited
Indemnification Agreement
Page 3 of 8
law hereof, who shall not have otherwise
performed services for the Company or the Indemnitee within the
last five years (other than with respect to matters concerning the
rights of the Indemnitee under this Agreement, or of other the
Indemnitees under similar indemnity agreements).
(f) Losses : all
costs, charges, losses, damages and Expenses.
(g) Reviewing Party :
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 Board who does not have an interest in the
particular Claim for which the Indemnitee is seeking
indemnification, or Independent Legal Counsel.
(h) Voting Securities
: any securities of the Company which vote generally in the
election of directors.
2. Basic Indemnification
Arrangement; Advancement of Expenses .
(a) In the event the
Indemnitee was, 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, a Claim by reason of (or arising in part
out of) an Indemnifiable Event, the Company shall indemnify the
Indemnitee to the fullest extent permitted by law as soon as
practicable but in any event no later than thirty days after
written demand is presented to the Company, against any and all
Losses, (including all interest, assessments and other charges paid
or payable in connection with or in respect of such Losses subject
only to any limitations that may be imposed by Section 98 of
the Bermuda Companies Act 1981 (the “Bermuda Act”))
relating to such Claim, except as provided in Section 2(d)
hereof.
(b) Notwithstanding anything
in this Agreement to the contrary, the Indemnitee shall not be
entitled to indemnification or advancement of Expenses pursuant to
this Agreement in connection with any Claim initiated by the
Indemnitee unless (i) the Company has joined in or
Company’s Board of Directors has authorized or consented to
the initiation of such Claim or (ii) the Claim is one to
enforce the Indemnitee’s rights under this
Agreement.
(c) If so requested by the
Indemnitee, the Company shall advance (within two business days of
such request) any and all Expenses incurred by the Indemnitee (an
“Expense Advance”). The Company shall, in accordance
with such request (but without duplication), either (i) pay
such Expenses on behalf of the Indemnitee, or (ii) reimburse
the Indemnitee for such Expenses.
(d) Notwithstanding the
forgoing, (i) the indemnification obligations of the Company
under Section 2(a) shall be subject to the condition that the
Reviewing Party shall not have determined (in a written finding or
opinion, in any case in which the Independent Legal Counsel
referred to in Section 3 hereof is involved) that the
Indemnitee is not permitted to be indemnified under
Section 2(a) of this Agreement. The obligation of the Company
to make an Expense Advance pursuant to Section 2(a) shall be
subject to the condition that, if, when and to the extent that the
Reviewing Party determines that the Indemnitee is not permitted to
be indemnified under Section 2(a) of this Agreement, the
Company shall be entitled to be reimbursed by the
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