Exhibit 10.1
INDEMNIFICATION AGREEMENT
This Agreement made and entered into
this 4 th day of November, 2008, (the
“Agreement”), by and between Mac-Gray Corporation, a
Delaware corporation (the “Company,” which term shall
include, where appropriate, any Entity (as hereinafter defined)
controlled directly or indirectly by the Company) and
(the “Indemnitee”):
WHEREAS, it is essential to the
Company that it be able to retain and attract as directors the most
capable persons available;
WHEREAS, increased corporate
litigation has subjected directors to litigation risks and
expenses, and the limitations on the availability of directors and
officers liability insurance have made it increasingly difficult
for the Company to attract and retain such persons;
WHEREAS, the Company’s
Certificate of Incorporation and Amended and Restated By-laws (the
“Certificate of Incorporation” and
“By-laws,” respectively) require it to indemnify its
directors to the fullest extent permitted by law and permit it to
make other indemnification arrangements and agreements;
WHEREAS, the Company desires to
provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification against
litigation risks and expenses (regardless, among other things, of
any amendment to or revocation of the Company’s Certificate
of Incorporation or By-laws or any change in the ownership of the
Company or the composition of its Board of Directors);
WHEREAS, the Company intends that
this Agreement provide Indemnitee with greater protection than that
which is provided by the Company’s Certificate of
Incorporation and By-laws; and
WHEREAS, Indemnitee is relying upon
the rights afforded under this Agreement in continuing as a
director of the Company.
NOW, THEREFORE, in consideration of
the promises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
1.
Definitions
.
(a)
“Corporate Status”
describes the status of a person who is serving or has served
(i) as a director of the Company, (ii) in any capacity
with respect to any employee benefit plan of the Company, or
(iii) as a director, partner, trustee, officer, employee, or
agent of any other Entity at the request of the Company. For
purposes of subsection (iii) of this Section 1(a), if
Indemnitee is serving or has served as a director, partner,
trustee, officer, employee or agent of a Subsidiary, Indemnitee
shall be deemed to be serving at the request of the
Company.
(b)
“Entity” shall mean any
corporation, partnership, limited liability company, joint venture,
trust, foundation, association, organization or other legal
entity.
(c)
“Expenses” shall mean
all fees, costs and expenses incurred by Indemnitee in connection
with any Proceeding (as defined below), including, without
limitation, attorneys’ fees, disbursements and retainers
(including, without limitation, any such fees, disbursements and
retainers incurred by Indemnitee pursuant to Sections 11 and
12(c) of this Agreement), fees and disbursements of expert
witnesses, private investigators and professional advisors
(including, without limitation, accountants and investment
bankers), court costs, transcript costs, fees of experts, travel
expenses, duplicating, printing and binding costs, telephone and
fax transmission charges, postage, delivery services, secretarial
services, and other disbursements and expenses.
(d)
“Indemnifiable
Expenses,” “Indemnifiable Liabilities” and
“Indemnifiable Amounts” shall have the meanings
ascribed to those terms in Section 3(a) below.
(e)
“Liabilities” shall mean
judgments, damages, liabilities, losses, penalties, excise taxes,
fines and amounts paid in settlement.
(f)
“Proceeding” shall mean
any threatened, pending or completed claim, action, suit,
arbitration, alternate dispute resolution process, investigation,
administrative hearing, appeal, or any other proceeding, whether
civil, criminal, administrative, arbitrative or investigative,
whether formal or informal, including a proceeding initiated by
Indemnitee pursuant to Section 11 of this Agreement to enforce
Indemnitee’s rights hereunder.
(g)
“Subsidiary” shall mean
any corporation, partnership, limited liability company, joint
venture, trust or other Entity of which the Company owns (either
directly or through or together with another Subsidiary of the
Company) either (i) a general partner, managing member or
other similar interest or (ii) (A) 50% or more of the
voting power of the voting capital equity interests of such
corporation, partnership, limited liability company, joint venture
or other Entity, or (B) 50% or more of the outstanding voting
capital stock or other voting equity interests of such corporation,
partnership, limited liability company, joint venture or other
Entity.
2.
Services of Indemnitee
. In consideration of the
Company’s covenants and commitments hereunder, Indemnitee
agrees to serve or continue to serve as a director of the
Company. However, this Agreement shall not impose any
obligation on Indemnitee or the
Company to continue Indemnitee’s service
to the Company beyond any period otherwise required by law or by
other agreements or commitments of the parties, if any.
3.
Agreement to Indemnify
. The Company agrees to
indemnify Indemnitee as follows:
(a)
Proceedings Other Than By or In
the Right of the Company . Subject to the exceptions contained in
Section 4(a) below, if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding (other than an
action by or in the right of the Company) by reason of
Indemnitee’s Corporate Status, Indemnitee shall be
indemnified by the Company against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such Proceeding
(referred to herein as “Indemnifiable Expenses” and
“Indemnifiable Liabilities,” respectively, and
collectively as “Indemnifiable Amounts”).
(b)
Proceedings By or In the Right of
the Company .
Subject to the exceptions contained in
Section 4(b) below, if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding by or in the right
of the Company by reason of Indemnitee’s Corporate Status,
Indemnitee shall be indemnified by the Company against all
Indemnifiable Expenses.
(c)
Conclusive Presumption Regarding
Standard of Care .
In making any determination required to be made under Delaware law
with respect to entitlement to indemnification hereunder, the
person, persons or entity making such determination shall presume
that Indemnitee is entitled to indemnification under this Agreement
if Indemnitee submitted a request therefor in accordance with
Section 5 of this Agreement, and the Company shall have the
burden of proof to overcome that presumption in connection with the
making by any person, persons or entity of any determination
contrary to that presumption.
4.
Exceptions to
Indemnification .
Indemnitee shall be entitled to indemnification under
Sections 3(a) and 3(b) above in all circumstances
other than with respect to any specific claim, issue or matter
involved in the Proceeding out of which Indemnitee’s claim
for indemnification has arisen, as follows:
(a)
Proceedings Other Than By or In
the Right of the Company . If indemnification is requested under
Section 3(a) and it has been finally adjudicated by a
court of competent jurisdiction that, in connection with such
specific claim, issue or matter, Indemnitee failed to act
(i) in good faith and (ii) in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company, or, with respect to any criminal Proceeding,
Indemnitee had reasonable
cause to believe that
Indemnitee’s conduct was unlawful, Indemnitee shall not be
entitled to payment of Indemnifiable Amounts hereunder.
(b)
Proceedings By or In the Right of
the Company . If
indemnification is requested under
Section 3(b) and
(i) it has been finally
adjudicated by a court of competent jurisdiction that, in
connection with such specific claim, issue or matter, Indemnitee
failed to act (A) in good faith and (B) in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, Indemnitee shall not be entitled to
payment of Indemnifiable Expenses hereunder; or
(ii) it has been finally
adjudicated by a court of competent jurisdiction that Indemnitee is
liable to the Company with respect to such specific claim,
Indemnitee shall not be entitled to payment of Indemnifiable
Expenses hereunder with respect to such claim, issue or matter
unless the Court of Chancery or another court in which such
Proceeding was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification for such Indemnifiable Expenses which
such court shall deem proper; or
(iii) it has been finally
adjudicated by a court of competent jurisdiction that Indemnitee is
liable to the Company for an accounting of profits made from the
purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934, the rules and regulations
promulgated thereunder and amendments thereto or similar provisions
of any federal, state or local statutory law, Indemnitee shall not
be entitled to payment of Indemnifiable Expenses
hereunder.
(c)
Insurance Proceeds
. To the extent payment is
actually made to the Indemnitee under a valid and collectible
insurance policy in respect of Indemnifiable Amounts in connection
with such specific claim, issue or matter, Indemnitee shall not be
entitled to payment of Indemnifiable Amounts hereunder except in
respect of any excess beyond the amount of payment under such
insurance.
5.
Procedure for Payment of
Indemnifiable Amounts . Indemnitee shall submit to the Company a
written request specifying the Indemnifiable Amounts for which
Indemnitee seeks payment under Section 3 of this Agreement and
the basis for the claim. The Company shall pay
such Indemnifiable Amounts to Indemnitee
promptly upon receipt of its request. At the request of the
Company, Indemnitee shall furnish such documentation and
information as are reasonably available to Indemnitee and necessary
to establish that Indemnitee is entitled to indemnification
hereunder.
6.
Indemnification for Expenses of a
Party Who is Wholly or Partly Successful . Notwithstanding any other
provision of this Agreement, and without limiting any such
provision, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, Indemnitee shall be
indemnified against all Expenses reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection th
