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Exhibit 10(d)
INDEMNITY AGREEMENT
This Agreement is made as of [Date], by and between PERRIGO
COMPANY, a
Michigan corporation (the "Company"), 515 Eastern Avenue,
Allegan, Michigan
49010, and [Name]("Indemnitee"), whose address is [Address].
WHEREAS, it is essential to the Company to retain and attract as
directors
and officers the most capable persons available; and
WHEREAS, the substantial increase in corporate litigation
evidenced by
present trends subjects directors and officers to expensive
litigation risks;
and
WHEREAS, it is now and has always been the express policy of the
Company to
indemnify its directors and officers so as to provide them with
the maximum
possible protection permitted by law; and
WHEREAS, the Act (as defined below) permits the Company to
contractually
commit itself to increase the scope of indemnification of its
directors and
officers beyond the indemnification rights provided for in the
Act, and the
Company has determined under the circumstances that it is
reasonable and
necessary and in the best interest of the Company and its
shareholders to do so
in order to ensure that it can continue to attract and retain
qualified persons
to serve as officers and directors of the Company.
NOW, THEREFORE, the parties agree as follows:
SECTION 1 DEFINITIONS. As used in this Agreement:
(a) "Act" means the Michigan Business Corporation Act in
existence on
the date of this Agreement.
(b) "Change in Control" means a change in control of the Company
after
the date of this Agreement of a nature that would be required to
be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any
similar item on any similar schedule or form) promulgated under
the Securities
Exchange Act, whether or not the Company is then subject to such
reporting
requirement; provided, however, that, without limitation, such a
Change in
Control shall be deemed to have occurred if after the date of
this Agreement (i)
any "person" (as such term is used in Sections 13(d) and 14(d)
of the Securities
Exchange Act) is or becomes the "beneficial owner" (as defined
in Rule 13d-3
under the Act), directly or indirectly, of securities of the
Company
representing 20 percent or more of the combined voting power of
the Company's
then outstanding securities without the prior approval of at
least eighty
percent (80%) of the members of the Board in office immediately
prior to such
person attaining such percentage interest; (ii) the Company is a
party to a
merger, consolidation, sale of assets or other reorganization,
or a proxy
contest, as a consequence of which members of the Board in
office immediately
prior to such transaction or event constitute less than a
majority of the Board
thereafter; or (iii) during any period of two consecutive years,
individuals who
at the beginning of such period constituted the Board (including
for this
purpose any new director whose election or nomination for
election by the
Company's stockholders was approved by a vote of at least
eighty
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percent (80%) of the directors then still in office who were
directors at the
beginning of such period) cease for any reason to constitute at
least a majority
of the Board.
(c) "Corporate Position" means a director, officer, employee,
agent
and/or fiduciary of the Company or of any other corporation,
partnership, joint
venture, trust, employee benefit plan or other enterprise which
such person is
or was serving at the request of the Company. For the avoidance
of doubt,
Indemnitee may serve in any one or more of such positions.
(d) "Disinterested Director" means a director of the Company who
is
not and was not a party to or threatened to be made a party to
the Proceeding in
respect of which indemnification is sought by Indemnitee.
(e) "Expenses" shall mean all costs, expenses, and obligations
paid or
incurred in connection with investigating, litigating, being a
witness in,
defending or participating in, or preparing to litigate, defend,
be a witness in
or participate in any matter that is the subject of a
Proceeding, including
attorneys' and accountants' fees and court costs.
(f) "Independent Committee of the Board" means a committee of
two or
more Disinterested Directors appointed by the Board of Directors
of the Company
to determine the right of Indemnitee to be indemnified pursuant
to the terms of
this Agreement and to act upon all other issues and matters
relating to such
indemnification.
(g) "Independent Counsel" means a law firm, or a member of a law
firm,
that is experienced in matters of corporation law and neither
presently is, nor
in the past five years has been, retained to represent (i) the
Company or
Indemnitee in any matter material to either such party, or (ii)
any other party
to the Proceeding giving rise to a claim for indemnification
hereunder.
Notwithstanding the foregoing, the term "Independent Counsel"
shall not include
any person who, under the applicable standards of professional
conduct then
prevailing, would have a conflict of interest in representing
either the Company
or Indemnitee in an action to determine Indemnitee's rights
under this
Agreement.
(h) "Independent Director" means a director of the Company
designated
as an independent director pursuant to Section 450.1505(3) of
the Michigan
Business Corporation Act now in effect.
(i) "Proceeding" shall mean any threatened, pending or
completed
action, suit or proceeding, or any inquiry or investigation,
whether brought by
or in the right of the Company or otherwise and whether of a
civil, criminal,
administrative or investigative nature, in which Indemnitee may
be or may have
been involved as a party or otherwise by reason of the fact that
Indemnitee held
or holds a Corporate Position, or by reason of any action taken
by Indemnitee or
any inaction on Indemnitee's part while acting in a Corporate
Position, or by
reason of the fact that Indemnitee is or was serving at the
request of the
Company in a Corporate Position of another corporation, or as a
member, agent or
fiduciary of a partnership, joint venture, trust or other
enterprise.
(j) "Resolution Costs" shall mean any amount, fine or penalty
paid or
payable by Indemnitee in satisfaction of a final judgment
entered by a court of
competent jurisdiction in any Proceeding or in settlement of any
such
Proceeding.
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(k) "Securities Exchange Act" means the Securities Exchange Act
of
1934, as amended from time to time.
SECTION 2 AGREEMENT TO SERVE. Indemnitee agrees to serve in a
Corporation
Position for so long as Indemnitee is duly elected or appointed
or until
Indemnitee's death, permanent disability or written resignation
from his or her
Corporate Position.
SECTION 3 INDEMNIFICATION.
(a) In any Proceeding other than a Proceeding by or in the right
of
the Company, the Company shall indemnify Indemnitee against all
Expenses and
Resolution Costs actually and reasonably incurred by Indemnitee
in connection
with such Proceeding. Notwithstanding the preceding but subject
to Section 4
below, no indemnification shall be made under this subsection
unless otherwise
determined or directed by the court in which such proceeding was
brought:
(i) with respect to remuneration paid to Indemnitee if it
shall
be determined by a final judgment or other final adjudication
that such
remuneration was in violation of law;
(ii) on account of any suit in which a final judgment or
other
final adjudication is rendered against Indemnitee for an
accounting of profits
made from the purchase or sale by Indemnitee of securities of
the Company
pursuant to the provisions of Section 16(b) of the Securities
Exchange Act and
amendments thereto or similar provisions of any federal, state
or local law;
(iii) on account of Indemnitee's conduct which is determined by
a
final judgment or other final adjudication to have been
knowingly fraudulent,
deliberately dishonest or willfully wrong;
(iv) on account of Indemnitee's conduct which by a final
judgment
or other final adjudication is determined to have been in bad
faith and in
opposition to the best interests of the Company or to have
produced an unlawful
personal benefit; or
(v) with respect to a criminal proceeding if the Indemnitee
knew
or reasonably should have known that Indemnitee's conduct was
illegal.
(b) The Company shall indemnify Indemnitee in accordance with
the
provisions of this subsection (b) if Indemnitee is a party to or
threatened to
be made a party to or otherwise involved in any Proceeding by or
in the right of
the Company to procure a judgment in its favor by reason of the
fact that
Indemnitee held or holds a Corporate Position, against all
Expenses actually and
reasonably incurred by Indemnitee and any Resolution Costs paid
by Indemnitee in
settlement of such Proceeding, but only if Indemnitee acted in
good faith and in
a manner which Indemnitee reasonably believed to be in or not
opposed to the
best interests of the Company. Notwithstanding the preceding but
subject to
Section 4 below, no indemnification shall be made under this
subsection (b) in
respect of any claim, issue or matter as to which Indemnitee
shall have been
finally adjudged to be liable to the Company in the performance
of his or her
duty to the Company, unless and then only to the extent that any
court in which
such proceeding was brought shall determine upon application
that, despite the
adjudication of liability but in view of
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all the circumstances of the case, Indemnitee is fairly and
reasonably entitled
to indemnification for such amount of Expenses as such court
shall deem proper.
(c) In addition to any indemnification provided under subsection
(a)
and (b) above, the Company shall indemnify Indemnitee against
any Expenses
and/or Resolution Costs incurred by Indemnitee, regardless of
the nature of the
Proceeding in which Expenses and/or Resolution Costs were
incurred, if such
Expenses or Resolution Costs would have been covered under the
directors' and
officers' liability insurance policies in effect on the
effective date of this
Agreement or under any such insurance policies which become
effective on any
subsequent date.
(d) The indemnification contemplated by this Agreement shall be
to the
fullest extent now or hereafter allowed by law (whether
statutory or common law)
as presently or hereafter enacted or interpreted. In this
connection, if a
change in the Act or in the statutory laws of any other state
under which the
Company, or its successor, is hereafter incorporated or the
corporate offices of
the Company or its successor are hereafter located or relocated
permits greater
or lesser indemnification, either by agreement or otherwise,
than currently
provided by the Act or this Agreement, it is the intent of the
parties hereto
that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded
by such change or prior to such change, as the case may be.
SECTION 4 MANDATORY ADVANCEMENT OF EXPENSES. Notwithstanding
anything in
this Agreement expressed or implied to the contrary, the Company
shall advance
all reason
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