INDEMNIFICATION AGREEMENT dated
as of August __ , 2009 between
(the “Company”),
and
(“Indemnitee”)
WHEREAS,
the Board of Directors has determined that the inability to attract
and retain qualified persons as directors and officers is
detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons
that there shall be adequate certainty of protection through
insurance and indemnification against risks of claims and actions
against them arising out of their service to and activities on
behalf of the Company; and
WHEREAS,
the Company has adopted provisions in its Certificate of
Incorporation and By-laws providing for indemnification and
advancement of expenses of its directors and officers to the
fullest extent permitted by the Delaware General Corporation Law,
and the Company wishes to clarify and enhance the rights and
obligations of the Company and Indemnitee with respect to
indemnification and advancement of expenses; and
WHEREAS,
in order to induce and encourage highly experienced and capable
persons such as Indemnitee to serve and continue to serve as
directors and officers of the Company and in any other capacity
with respect to the Company, and to otherwise promote the desirable
end that such persons shall resist what they consider unjustified
lawsuits and claims made against them in connection with the good
faith performance of their duties to the Company, with the
knowledge that certain costs, judgments, penalties, fines,
liabilities and expenses incurred by them in their defense of such
litigation are to be borne by the Company and they shall receive
the maximum protection against such risks and liabilities as may be
afforded by law, the Board of Directors of the Company has
determined that the following Agreement is reasonable and prudent
to promote and ensure the best interests of the Company and its
stockholders; and
WHEREAS,
the Company desires to have Indemnitee continue to serve as a
director or officer of the Company and in such other capacity with
respect to the Company as the Company may request, as the case may
be, free from undue concern for unpredictable, inappropriate or
unreasonable legal risks and personal liabilities by reason of
Indemnitee acting in good faith in the performance of
Indemnitee’s duty to the Company; and Indemnitee desires to
continue so to serve the Company, provided, and on the express
condition, that he or she is furnished with the indemnity set forth
hereinafter;
Now,
therefore, in consideration of Indemnitee’s continued service
as a director or officer of the Company, the parties hereto agree
as follows:
1.
Service by Indemnitee . Indemnitee shall serve and/or
continue to serve as a director or officer of the Company
faithfully and to the best of Indemnitee’s ability so long as
Indemnitee is duly elected or appointed and until such time as
Indemnitee is removed as permitted by law or tenders a resignation
in writing.
2.
Indemnification and Advancement of Expenses . The Company
shall indemnify Indemnitee, and shall pay to Indemnitee in advance
of the final disposition of any Proceeding all Expenses incurred by
Indemnitee, to the fullest extent permitted by the Delaware General
Corporation Law in effect on the date of this Agreement or as such
law may from time to time be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the
Company to provide broader rights than said law permitted the
Company to provide prior to such amendment). Without diminishing
the scope of the rights provided by this Section, the rights of
Indemnitee to indemnification and advancement of Expenses provided
hereunder shall include but shall not be limited to those rights
hereinafter set forth, except that no indemnification or
advancement of Expenses shall be paid to Indemnitee:
(a) to the
extent expressly prohibited by Delaware law or the Certificate of
Incorporation and By-laws of the Company;
(b) for
which payment is actually made to Indemnitee under a valid and
collectible insurance policy or under a valid and enforceable
indemnity clause, provision of the certificate of incorporation or
by-laws, or agreement of the Company or any other company or
organization where Indemnitee is serving at the request of the
Company, except in respect of any indemnity exceeding the payment
under such insurance, indemnity clause, provision of the
certificate of incorporation or by-laws, or agreement;
or
(c) in
connection with an action, suit or proceeding, or part thereof
(including claims and counterclaims) initiated by Indemnitee,
except a judicial proceeding or arbitration pursuant to
Section 10 to enforce rights under this Agreement, unless the
action, suit or proceeding (or part thereof) was authorized by the
Board of Directors of the Company; or
(d) with
respect to any Proceeding brought by or on behalf of the Company
against Indemnitee that is authorized by the Board of Directors of
the Company, except as provided in Sections 4, 5 and 6
below.
3.
Action or Proceedings Other than an Action by or in the Right of
the Company . Except as limited by Section 2 above,
Indemnitee shall be entitled to the
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indemnification
rights provided in this Section if Indemnitee is a party or is
threatened to be made a party to any Proceeding (other than an
action by or in the name of the Company) by reason of the fact that
Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or is or was serving at the request of
the Company as a director, officer, employee, agent or fiduciary of
any other entity (including, but not limited to, another
corporation, partnership, joint venture or trust); or by reason of
anything done or not done by Indemnitee in any such capacity.
Pursuant to this Section, Indemnitee shall be indemnified against
all costs, judgments, penalties, fines, liabilities, amounts paid
in settlement and Expenses, actually and reasonably incurred by
Indemnitee in connection with such Proceeding, if Indemnitee acted
in good faith and in a manner Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company, and with
respect to any criminal Proceeding, had no reasonable cause to
believe his or her conduct was unlawful.
4.
Indemnity in Proceedings by or in the Name of the Company .
Except as limited by Section 2 above, Indemnitee shall be
entitled to the indemnification rights provided in this Section if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding brought by or in the name of the Company to procure
a judgment in its favor by reason of the fact that Indemnitee is or
was a director, officer, employee, agent or fiduciary of the
Company, or is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary of any other entity
(including, but not limited to, another corporation, partnership,
joint venture or trust); or by reason of anything done or not done
by Indemnitee in any such capacity. Pursuant to this Section,
Indemnitee shall be indemnified against all costs, judgments,
penalties, fines, liabilities, amounts paid in settlement and
Expenses, actually and reasonably incurred by Indemnitee in
connection with such Proceeding if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company; provided, however,
that no such indemnification shall be made in respect of any claim,
issue, or matter as to which Delaware law expressly prohibits such
indemnification by reason of any adjudication of liability of
Indemnitee to the Company, unless and only to the extent that the
Court of Chancery of the State of Delaware or the 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 entitled to
indemnification for such costs, judgments, penalties, fines,
liabilities, amounts paid in settlement and Expenses as such court
shall deem proper.
5.
Indemnification for Costs, Charges and Expenses of Successful
Party . Notwithstanding the limitations of Section 2(d), 3
and 4 above, to the extent that Indemnitee has been successful, on
the merits or otherwise, in whole or in part, in defense of any
Proceeding or in defense of any claim, issue or matter therein,
including, without limitation, the dismissal of any action without
prejudice, or if it is ultimately determined, after all appeals by
a court of competent jurisdiction, that Indemnitee is otherwise
entitled to be indemnified against Expenses, Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred
in connection therewith.
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6.
Partial Indemnification . If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company
for some or a portion of the costs, judgments, penalties, fines,
liabilities, amounts paid in settlement or Expenses, actually and
reasonably incurred in connection with any Proceeding, or in
connection with any judicial proceeding or arbitration pursuant to
Section 10 to enforce rights under this Agreement, but not,
however, for all of the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of such costs,
judgments, penalties, fines, liabilities, amounts paid in
settlement and Expenses, actually and reasonably incurred to which
Indemnitee is entitled.
7.
Indemnification for Expenses of a Witness . Notwithstanding
any other provision of this Agreement, to the maximum extent
permitted by the Delaware General Corporation Law, Indemnitee shall
be entitled to indemnification against all Expenses actually and
reasonably incurred or suffered by Indemnitee or on
Indemnitee’s behalf if Indemnitee appears as a witness or
otherwise incurs legal expenses as a result of or related to
Indemnitee’s service as a director or officer of the Company,
in any threatened, pending or completed action, suit or proceeding,
whether of a civil, criminal, administrative, investigative,
legislative or other nature, to which Indemnitee neither is, nor is
threatened to be made, a party.
8.
Determination of Entitlement to Indemnification . To receive
indemnification under this Agreement, Indemnitee shall submit a
written request to the Secretary of the Company. Such request shall
include documentation or information which is necessary for such
determination and which is reasonably available to Indemnitee. Upon
written request by Indemnitee for indemnification pursuant to
Sections 3, 4, 5, 6 or 7 the entitlement of Indemnitee to
indemnification, to the extent not provided pursuant to the terms
of this Agreement, shall be determined by the following person or
persons who shall be empowered to make such determination:
(a) the Board of Directors of the Company by a majority vote
of Disinterested Directors, whether or not such majority
constitutes a quorum; (b) a committee of Disinterested
Directors designated by a majority vote of such directors, whether
or not such majority constitutes a quorum; (c) if there are no
Disinterested Directors, or if the Disinterested Directors so
direct, by Independent Counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee;
(d) the stockholders of the Company; or (e) in the event
that a Change in Control has occurred, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee. Such Independent Counsel shall be selected
by the Board of Directors and approved by Indemnitee, except that
in the event that a Change in Control has occurred, Independent
Counsel shall be selected by Indemnitee. Upon failure of the Board
so to select such Independent Counsel or upon failure of Indemnitee
so to approve (or so to select, in the event that a Change in
Control has occurred), such Independent Counsel shall be selected
upon application to a court of competent jurisdiction. The
determination of entitlement to indemnification shall be made not
later than 30 calendar days after receipt by the Company of a
written request for indemnification. Any amounts incurred by
Indemnitee in connection with a request for indemnification or
payment of Expenses hereund
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