Exhibit 10.1
INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (this “Agreement”), made this
[____] day of [_________], 2008 by and between INTERNATIONAL
FLAVORS & FRAGRANCES INC., a New York corporation (the
“Corporation”) and [_______________]
(“Indemnitee”).
W I T N E S S E T
H:
WHEREAS, it is
important to the Corporation to attract and retain as directors and
officers the most capable persons reasonably available;
WHEREAS, Indemnitee
is a director and/or officer of the Corporation;
WHEREAS, both the
Corporation and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and
officers of companies;
WHEREAS, Indemnitee
is willing, subject to the Corporation’s execution and
performance of this Agreement, to continue in his or her capacity
as a director and/or officer of the Corporation;
WHEREAS, the Board
of Directors has determined that the contractual indemnification
included in this Agreement is reasonable, prudent and promotes the
best interests of the Corporation and its stockholders;
WHEREAS, the
By-laws of the Corporation as currently in effect (the
“By-laws” and, together with the Corporation’s
Restated Certificate of Incorporation, the “Constituent
Documents”) require the Corporation to indemnify and advance
expenses of the officers and directors of the Corporation in the
manner set forth therein, and Indemnitee may also be entitled to
indemnification pursuant to applicable provisions of the Business
Corporation Law of the State of New York (the “BCL”);
and
WHEREAS, the
By-laws and the BCL expressly provide that the indemnification and
advancement provisions set forth therein are not
exclusive;
NOW, THEREFORE, to
provide Indemnitee with express contractual indemnification
(regardless of, among other things, any amendment to or revocation
of the Constituent Documents as in effect as of the date hereof or
any change in the composition of the Board of Directors or any
acquisition, disposition or other business combination transaction
involving the Corporation), and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE
I
Definitions
Section
1.1 . Definitions
. In addition to
terms defined elsewhere in this Agreement, the following terms have
the following meanings in this Agreement:
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(a)
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“
Claim ” means any threatened, pending or completed
action, suit, arbitration, alternative dispute resolution,
investigation, inquiry, administrative hearing, or other
proceeding, or any appeal therein, whether civil, criminal or
other, in which Indemnitee was, is, or, in Indemnitee’s good
faith belief will be, involved as a party or otherwise, whether
instituted by the Corporation or any other person or entity, by
reason of the fact that Indemnitee is or was a director and/or
officer of the Corporation, or, while serving as director and/or
officer of the Corporation, is or was serving in any capacity, at
the request of the Corporation, in any other corporation or any
partnership, joint venture, trust, employee benefit plan or other
enterprise, in each case whether or not Indemnitee was serving in
such capacity at the time any liability or expense was or is
incurred for which indemnification or advancement of expenses can
be provided under this Agreement.
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(b)
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“
Expenses ” include reasonable attorneys’ and
experts’ fees, expenses and other costs, witness fees, travel
expenses, and all other disbursements or expenses in connection
with investigating, defending, participating or preparing to defend
or participate in any Claim. “Expenses” also include
expenses incurred in
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connection with
any appeal resulting from any Claim, including the premium for,
security for, and other costs relating to, any cost bond,
supersedeas bond or other appeal bond or its equivalent.
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(c)
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“
Indemnifiable Losses ” means any Expenses, judgments,
fines, and penalties and amounts paid in settlement incurred by
Indemnitee as a result of any Claim, unless a judgment or other
final adjudication adverse to Indemnitee establishes that his or
her acts were committed in bad faith or were the result of active
and deliberate dishonesty and were material to the cause of action
so adjudicated, or that Indemnitee personally gained in fact a
financial profit or other advantage to which Indemnitee was not
legally entitled.
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ARTICLE
II
Indemnification
and Advancement
Section
2.1 . Indemnification
.The Corporation
will indemnify Indemnitee for and hold Indemnitee harmless against
all Indemnifiable Losses, in each case to the fullest extent
permitted by the laws of the State of New York as in effect on the
date hereof, including the BCL, or as such laws may from time to
time hereafter be amended to increase the scope of such permitted
indemnification (but in no case less than the extent permitted
under the laws in effect as of the date hereof).
Section
2.2 . Advancement
.Indemnitee’s rights to
indemnification pursuant to Section 2.1 above shall include the
right to be advanced by the Corporation sufficient funds to pay for
Expenses incurred by Indemnitee in connection with any Claim, as
soon as practicable but in any event no later than thirty (30) days
after receipt by the Corporation of (i) a statement or statements
from Indemnitee or his or her legal representative requesting such
advance or advances from time to time, and (ii) an undertaking by
or on behalf of Indemnitee to repay such amount or amounts to the
Corporation if a judgment or other final adjudication adverse to
Indemnitee establishes that his or her acts were committed in bad
faith or were the result of active and deliberate dishonesty and
were material to the cause of action so adjudicated, or that
Indemnitee personally gained in fact a financial profit or other
advantage to which Indemnitee
was not legally
entitled. Such undertaking shall be accepted without reference to
the financial ability of Indemnitee to make such repayment.
Indemnitee will return any advance which remains unspent at the
final conclusion of the Claim to which the advance related.
Advances shall be unsecured and interest-free.
Section
2.3 . Indemnification of Additional
Expenses . If any Indemnifiable Losses,
including any advancement of Expenses, are not paid in full by the
Corporation in accordance with the terms of this Agreement within
thirty (30) days after Indemnitee has submitted a written claim
(including in the case of advancement of Expenses, the required
undertaking under Section 2.2 above), Indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the Expenses or Indemnifiable Losses, and to the extent
successful in whole or in part, Indemnitee shall be entitled to be
paid also the Expenses of prosecuting such claim. The parties
hereby agree that it shall be a defense to any such action (other
than an action brought to enforce a claim for Expenses incurred in
connection with any Claim in advance of its final disposition where
Indemnitee has tendered the required undertaking under Section 2.2
above) that Indemnitee has not met the relevant standard for
indemnification set forth in this Agreement, but the burden of
proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that
indemnification of Indemnitee is proper because Indemnitee has met
the relevant standard
