|
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,
1
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.
2
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
|
