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Exhibit 10.1
INDEMNITY AGREEMENT
This Indemnity
Agreement, dated as
of ,
2007, is made by and
between ,
a Delaware corporation (the " Company "),
and (the
" Indemnitee ").
RECITALS
A. The
Company is aware that competent and experienced persons are
increasingly reluctant to serve as directors, officers or agents of
corporations unless they are protected by comprehensive liability
insurance or indemnification, due to increased exposure to
litigation costs and risks resulting from their service to such
corporations, and due to the fact that the exposure frequently
bears no reasonable relationship to the compensation of such
directors, officers and other agents.
B. The
statutes and judicial decisions regarding the duties of directors
and officers are often difficult to apply, ambiguous, or
conflicting, and therefore fail to provide such directors, officers
and agents with adequate, reliable knowledge of legal risks to
which they are exposed or information regarding the proper course
of action to take.
C. Plaintiffs
often seek damages in such large amounts and the costs of
litigation may be so enormous (whether or not the case is
meritorious), that the defense and/or settlement of such litigation
is often beyond the personal resources of directors, officers and
other agents.
D. The
Company believes that it is unfair for its directors, officers and
agents and the directors, officers and agents of its subsidiaries
to assume the risk of huge judgments and other expenses which may
occur in cases in which the director, officer or agent received no
personal profit and in cases where the director, officer or agent
was not culpable.
E. The
Company recognizes that the issues in controversy in litigation
against a director, officer or agent of a corporation such as the
Company or its subsidiaries are often related to the knowledge,
motives and intent of such director, officer or agent, that he is
usually the only witness with knowledge of the essential facts and
exculpating circumstances regarding such matters, and that the long
period of time which usually elapses before the trial or other
disposition of such litigation often extends beyond the time that
the director, officer or agent can reasonably recall such matters
and may extend beyond the normal time for retirement for such
director, officer or agent with the result that he, after
retirement or in the event of his death, his spouse, heirs,
executors or administrators, may be faced with limited ability and
undue hardship in maintaining an adequate defense, which may
discourage such a director, officer or agent from serving in that
position.
F. Based
upon their experience as business managers, the Board of Directors
of the Company (the " Board ") has concluded that, to retain
and attract talented and experienced individuals to serve as
directors, officers and agents of the Company and its subsidiaries
and to encourage such individuals to take the business risks
necessary for the success of the Company and its subsidiaries, it
is necessary for the Company to contractually indemnify its
directors, officers and agents and the directors, officers and
agents of its subsidiaries, and to assume for itself maximum
liability for expenses and damages in connection with claims
against such directors, officers and agents in connection with
their service to the Company and its subsidiaries, and has further
concluded that the failure to provide such contractual
indemnification could result in great harm to the Company and its
subsidiaries and the Company's stockholders.
G. Section 145
of the General Corporation Law of Delaware, under which the Company
is organized (" Section 145 "), empowers the Company to
indemnify its directors, officers, employees and agents by
agreement and to indemnify persons who serve, at the request of the
Company, as the
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directors, officers, employees or agents of other
corporations or enterprises, and expressly provides that the
indemnification provided by Section 145 is not
exclusive.
H. The
Company desires and has requested the Indemnitee to serve or
continue to serve as a director, officer or agent of the Company
and/or one or more subsidiaries of the Company free from undue
concern for claims for damages arising out of or related to such
services to the Company and/or one or more subsidiaries of the
Company.
I. Indemnitee
is willing to serve, or to continue to serve, the Company and/or
one or more subsidiaries of the Company, provided that he is
furnished the indemnity provided for herein.
AGREEMENT
NOW, THEREFORE,
the parties hereto, intending to be legally bound, hereby agree as
follows:
1.
Definitions.
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(a)
Agent. For
the purposes of this Agreement, "agent" of the Company means any
person who is or was a director, officer, employee or other agent
of the Company or a subsidiary of the Company; or is or was serving
at the request of, for the convenience of, or to represent the
interests of the Company or a subsidiary of the Company as a
director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise;
or was a director, officer, employee or agent of a foreign or
domestic corporation which was a predecessor corporation of the
Company or a subsidiary of the Company, or was a director, officer,
employee or agent of another enterprise at the request of, for the
convenience of, or to represent the interests of such predecessor
corporation.
(b)
Expenses.
For purposes of this Agreement, "expenses"
include all out-of-pocket costs of any type or nature whatsoever
(including, without limitation, all attorneys' fees and related
disbursements), actually and reasonably incurred by the Indemnitee
in connection with either the investigation, defense or appeal of a
proceeding or establishing or enforcing a right to indemnification
under this Agreement or Section 145 or otherwise; provided,
however, that "expenses" shall not include any judgments, fines,
ERISA excise taxes or penalties, or amounts paid in settlement of a
proceeding.
(c)
Proceeding.
For the purposes of this Agreement,
"proceeding" means any threatened, pending, or completed action,
suit or other proceeding, whether civil, criminal, administrative,
or investigative.
(d)
Subsidiary.
For purposes of this Agreement,
"subsidiary" means any corporation of which more than 50% of the
outstanding voting securities is owned directly or indirectly by
the Company, by the Company and one or more other subsidiaries, or
by one or more other subsidiaries.
2.
Agreement to Serve.
The Indemnitee agrees to serve and/or
continue to serve as agent of the Company, at its will (or under
separate agreement, if such agreement exists), in the capacity
Indemnitee currently serves as an agent of the Company, so long as
he is duly appointed or elected and qualified in accordance with
the applicable provisions of the Bylaws of the Company or any
subsidiary of the Company or until such time as he tenders his
resignation in writing; provided, however, that nothing contained
in this Agreement is intended to create any right to continued
employment by Indemnitee.
3.
Liability Insurance.
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as the Indemnitee
shall be subject to any possible proceeding by reason of the fact
that the Indemnitee was an agent of the Company, the Company,
subject to Section 3(c), shall promptly obtain and maintain in
full force and effect directors' and officers' liability insurance
(" D&O Insurance ") in reasonable amounts from
established and reputable insurers.
(b)
Rights and Benefits.
In all policies of D&O Insurance, the
Indemnitee shall be named as an insured in such a manner as to
provide the Indemnitee the same rights and benefits as are accorded
to the most favorably insured of the Company's directors, if the
Indemnitee is a director; or of the Company's officers, if the
Indemnitee is not a director of the Company but is an officer; or
of the Company's key employees, if the Indemnitee is not a director
or officer but is a key employee.
(c)
Limitation on Required Maintenance of
D&O Insurance. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or
maintain D&O Insurance if the Company determines in good faith
that such insurance is not reasonably available, the premium costs
for such insurance are disproportionate to the amount of coverage
provided, the coverage provided by such insurance is limited by
exclusions so as to provide an insufficient benefit, or the
Indemnitee is covered by similar insurance maintained by a
subsidiary of the Company.
4.
Mandatory Indemnification.
Subject to Section 9 below, the
Company shall indemnify the Indemnitee as follows:
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(a)
Third Party Actions.
If the Indemnitee is a person who 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 the fact that he is or was an agent of the Company, or by reason
of anything done or not done by him in any such capacity, the
Company shall indemnify the Indemnitee against any and all expenses
and liabilities of any type whatsoever (including, but not limited
to, judgments, fines, ERISA excise taxes and penalties, and amounts
paid in settlement) actually and reasonably incurred by him in
connection with the investigation, defense, settlement or appeal of
such proceeding, provided the Indemnitee acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Company and its stockholders, and, with respect to
any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
(b)
Derivative Actions.
If the Indemnitee is a person who 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 the fact that he is or was
an agent of the Company, or by reason of anything done or not done
by him in any such capacity, the Company shall indemnify the
Indemnitee against all expenses actually and reasonably incurred by
him in connection with the investigation, defense, settlement, or
appeal of such proceeding, provided the Indemnitee acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company and its stockholders;
except that no indemnification under this subsection 4(b)
shall be made in respect to any claim, issue or matter as to which
such person shall have been finally adjudged to be liable to the
Company by a court of competent jurisdiction unless and only to the
extent that
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