INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (the “Agreement”) is made as
of
by and between Milacron Inc., a Delaware corporation (the
“Company”), and
, a director and/or officer of the Company
(“Indemnitee”).
WHEREAS, the
Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve the
Company.
WHEREAS, the
Company and Indemnitee recognize the continued difficulty in
obtaining liability insurance for the Company’s directors and
officers, the significant and continual increases in the cost of
such insurance and the general trend of insurance companies to
reduce the scope of coverage of such insurance.
WHEREAS, the
Company and Indemnitee further recognize the substantial increase
in corporate litigation in general, subjecting directors and
officers to expensive litigation risks at the same time as the
availability and scope of coverage of liability insurance provide
increasing challenges for the Company.
WHEREAS, the Board
of Directors of the Company (the “Board”) has
determined that the increased difficulty in attracting and
retaining highly qualified persons such as Indemnitee is
detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons
that there will be increased certainty of such protection in the
future.
WHEREAS, it is
reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of,
Indemnitee on the terms and conditions set forth herein.
NOW, THEREFORE, in
consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as
follows:
Section 1.
Services to the Company . Indemnitee agrees to begin or to
continue to serve as a director or officer of the Company.
Indemnitee may at any time and for any reason resign from such
position (subject to any other contractual obligation or any
obligation imposed by operation of law), in which event the Company
shall have no obligation under this Agreement to continue
Indemnitee in such position. This Agreement shall not be deemed an
employment contract between Indemnitee and the Company (or any of
its subsidiaries or any other entity of which Indemnitee is or was
serving in any capacity at the request of the Company). The
foregoing notwithstanding, this Agreement shall continue in force
after Indemnitee has ceased to serve as a director or officer of
the Company.
Section 2.
Right to Indemnification . The Company shall to the fullest
extent permitted by applicable law as then in effect indemnify
Indemnitee, if Indemnitee is or was involved in any manner
(including, without limitation, as a party or a witness) or is
threatened to be made so involved in any threatened, pending or
completed investigation, claim, action, suit or
proceeding,
whether civil,
criminal, administrative or investigative (including, without
limitation, any action, suit or proceeding brought by or in the
right of the Company to procure a judgment in its favor) (a
“Proceeding”) by reason of the fact that Indemnitee is
or was a director, officer, employee or agent of the Company, or is
or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise (including, without
limitation, any employee benefit plan), against all expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person
in connection with such Proceeding; provided, however, that, except
as provided in Section 5(d), the foregoing shall not apply to
any part of a Proceeding that was commenced by Indemnitee prior to
a Change in Control (as hereinafter defined). Such indemnification
shall be a contract right. Subject to the applicable provisions of
Section 5(a) hereof, Indemnitee shall also have the right to
receive from the Company payment of any expenses incurred by
Indemnitee in connection with any such Proceeding in advance of the
final disposition of such Proceeding, consistent with the
provisions of applicable law as then in effect. All references in
this Agreement to the “applicable law as then in
effect” refer to such law as it exists as of the date of this
Agreement or as such law may hereafter be amended (but, in the case
of such amendment, only to the extent that such amendment permits
the Company to provide broader indemnification or advancement
rights than such law permitted the Company to provide prior to such
amendment).
Section 3.
Insurance, Contracts and Funding . The Company may purchase
and maintain insurance to protect itself and Indemnitee against any
expenses, judgments, fines and amounts paid in settlement as
specified in this Agreement or incurred by any such person in
connection with any Proceeding referred to in this Agreement, to
the fullest extent permitted by applicable law as then in effect.
The Company may enter into contracts with Indemnitee in furtherance
of the provisions of this Agreement and may create a trust fund,
grant a security interest or use other means (including, without
limitation, a letter of credit) to ensure the payment of such
amounts as may be necessary to effect indemnification as provided
in this Agreement.
Section 4.
Indemnification; Not Exclusive Right . The right of
indemnification and advancement of expenses provided in this
Agreement shall not be exclusive of any other rights to which
Indemnitee may otherwise be entitled. The provisions of this
Agreement shall inure to the benefit of the heirs and legal
representatives of Indemnitee and shall be applicable to
Proceedings commenced or continuing after the execution of this
Agreement by the parties hereto, whether arising from acts or
omissions occurring before or after such execution.
Section 5.
Advancement of Expenses; Procedures; Presumptions and Effect of
Certain Proceedings; Remedies . The following procedures,
presumptions and remedies shall apply with respect to advancement
of expenses and the right to indemnification under this
Agreement:
(a) Advancement
of Expenses. All reasonable expenses incurred by or on behalf of
Indemnitee in connection with, and prior to the final disposition
of, any Proceeding shall be advanced to Indemnitee by the Company
within 20 calendar days after the receipt by the Company of a
statement or statements from Indemnitee requesting such advance or
advances from time to time, whether such statement or statements
are received prior to or after final disposition of such
Proceeding. Indemnitee shall include with such statement or
statements evidence of the expenses incurred by Indemnitee and, if
required by law at the time of such advance, shall include or be
accompanied by an undertaking by or on behalf of Indemnitee to
repay the amounts advanced if it
2
should
ultimately be determined that Indemnitee is not entitled to be
indemnified against such expenses pursuant to this
Agreement.
(b) Procedure
for Determination of Entitlement to Indemnification.
(i) To
obtain indemnification under this Agreement, Indemnitee shall
submit to the Secretary of the Company a written request therefor.
If the Company intends to determine whether Indemnitee is entitled
to indemnification pursuant to this Agreement, the Company shall
deliver to Indemnitee written notice of such intent (such
notification, an “Election Notice”) within 15 calendar
days of the Secretary’s receipt of Indemnitee’s written
request for indemnification. If the Company delivers an Election
Notice in accordance with the preceding sentence, the determination
of Indemnitee’s entitlement to indemnification shall be made
not later than 90 calendar days after the later of receipt by the
Company of the written request for indemnification or final
disposition of the Proceeding. The Secretary of the Company shall,
promptly upon receipt of such a request for indemnification, advise
the Board of Directors in writing that Indemnitee has requested
indemnification.
(ii) If
the Company has delivered to Indemnitee an Election Notice within
the 15-day period set forth in Section 5(b)(i),
Indemnitee’s entitlement to indemnification under this
Agreement shall be determined in one of the following ways:
(A) by a majority vote of the Disinterested Directors (as
hereinafter defined), even though less than a quorum; (B) by a
committee of such Disinterested Directors designated by a majority
vote of the Disinterested Directors, even though less than a
quorum; (C) by a written opinion of Independent Counsel (as
hereinafter defined) selected by a majority of the Disinterested
Directors; or (D)
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