INDEMNIFICATION
AGREEMENT
This
INDEMNIFICATION AGREEMENT is made and entered into as of the ___day
of September 2005, by and between Metrocorp, Inc., an Illinois
corporation (“Metrocorp”), and
, a member of Metrocorp’s Board of Directors (the
“Director”).
WHEREAS, Metrocorp
and the Director each recognize the ongoing and substantial risk of
litigation and other claims being asserted against directors of
public companies; and
WHEREAS, in
recognition of the need for protection against such litigation and
claims to facilitate the Director’s continued effective
service to Metrocorp, Metrocorp desires to provide for the
indemnification, advancement, reimbursement and insurance of
certain liabilities and expenses of the Director, to the full
extent permitted by law;
NOW, THEREFORE, in
consideration of these premises and of the Director’s
continuation of service to Metrocorp, the parties hereto agree as
follows:
1.
Indemnification Against Liability . The Director shall be
indemnified and held harmless by Metrocorp, to the full extent
permitted by law, against any and all liabilities and assessments
arising out of or related to any threatened, pending or completed
action, suit, proceeding, inquiry or investigation, whether civil,
criminal, administrative, or other (each being hereinafter referred
to as an “Action”), including, but not limited to,
judgments, fines, penalties and amounts paid in settlement (whether
with or without court approval), and any interest, assessments,
excise taxes or other charges paid or payable in connection with or
in respect of any of the foregoing (each such liability and
assessment being hereinafter referred to as a
“Liability”), incurred by the Director and arising out
of his or her status as a director or member of a committee of the
Board of Directors of Metrocorp, or by reason of anything done or
not done by the Director in such capacities.
2.
Indemnification Against Expense . The Director shall also be
indemnified and held harmless by Metrocorp, to the full extent
permitted by law, against any and all attorneys’ fees and
other costs, expenses and obligations, and any interest,
assessments, excise taxes or other charges paid or payable in
connection with or in respect of any of the foregoing (each such
expense being hereinafter referred to as an “Expense”)
arising out of or relating to any Action, including expenses
incurred by a Director:
(a) in
connection with investigating, defending, being a witness or
participating in any Action (other than an Action commenced by the
Director against another party, except as provided in Section 2(b)
below) or any appeal of an Action; or
(b) in
connection with any claim asserted or action brought by the
Director for (i) payment or indemnification of Liabilities or
Expenses or advance payment of Expenses by Metrocorp under this
Agreement, or pursuant to any other agreement, any resolution of
Metrocorp’s stockholders or Board of Directors, any provision
of Metrocorp’s Articles of Incorporation or Bylaws, or any
statute or rule of law providing for indemnification, now or
hereafter in effect, relating to any Action, or for specific
performance pursuant to Section 17
hereof, and/or
(ii) recovery under any directors’ and officers’
liability insurance policy or policies maintained by Metrocorp,
regardless of whether the Director is ultimately determined to be
entitled to such payment, indemnification, advance, or insurance
recovery, as the case may be.
3.
Partial Indemnification . If the Director is entitled under
this Agreement to payment for some or a portion of any Liability or
Expense relating to an Action, but not for the total amount
thereof, Metrocorp shall nevertheless pay the Director for the
portion thereof to which he or she is entitled.
4.
Advances . Metrocorp shall pay any and all Expenses incurred
by the Director in connection with any Action, whether or not the
Action has been finally disposed of (an “Advance”),
within five days after receipt by Metrocorp of an appropriate
request therefor from the Director, provided that Metrocorp shall
have received a Statement of Undertaking, in substantially the form
set forth in Exhibit A (“ Statement of
Undertaking ”), undertaking by or on behalf of the
Director to repay such Advance if it is ultimately determined that
the Director is not entitled to be indemnified by Metrocorp against
such Expenses.
5. Demand
and Final Payment . Final payments of Liabilities and Expenses
provided for herein shall be made by Metrocorp upon the receipt of
a written request therefor by or on behalf of the Director, and
upon the determination that indemnification is proper in the
circumstances because the Director met the applicable standard of
conduct set forth in this Indemnification Agreement. Such
determination shall be made (i) by a majority vote of the
Metrocorp directors who are not parties to the Action giving rise
to the demand (the “Disinterested Directors”) even
though less than a quorum, or (ii) by a committee of such
Disinterested Directors designated by majority vote of the
Disinterested Directors, even though less than a quorum, or
(iii) if the Disinterested Directors so direct, or if there
are no Disinterested Directors, by independent legal counsel in a
written opinion, or (iv) by majority vote of Metrocorp’s
stockholders. The Director may contest a determination that he or
she is not entitled to indemnification by petitioning a court to
make an independent determination with respect to the
Director’s right to indemnification hereunder.
6.
Failure to Indemnify . If a claim for payment of any
Liability, Expense or Advance under this Agreement, or pursuant to
any other agreement, any resolution of Metrocorp’s
stockholders or Board of Directors, any provision of
Metrocorp’s Articles of Incorporation or Bylaws, or any
statute or rule of law providing for indemnification, now or
hereafter in effect, is not paid in full within thirty days, in the
case of Liabilities and Expenses, or within five days, in the case
of Advances, after a written request for payment thereof has been
received by Metrocorp, the Director may bring an action against
Metrocorp to recover the unpaid amount of such claim, together with
interest thereon.
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