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EXHIBIT 10.1
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this "Agreement") dated as of __________________,
2001, is made by and between Water Pik Technologies, Inc., a Delaware
corporation (the "Company"), and ___________________________ (the "Indemnitee").
R E C I T A L S:
A. The Company recognizes that competent and experienced persons are
increasingly reluctant to serve as directors and officers of corporations unless
they are protected by comprehensive liability insurance or indemnification, or
both, 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.
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 with adequate, reliable knowledge of
legal risks to which they are exposed or information regarding the proper course
of action to take.
C. The Company and the Indemnitee recognize that plaintiffs often seek
damages in such large amounts and the costs of litigation may be so substantial
(whether or not the case is meritorious), that the defense and/or settlement of
such litigation is often beyond the personal resources of directors and
officers.
D. The Company believes that it is unfair for its directors and officers to
assume the risk of substantial judgments and other expenses which may occur in
cases in which the director and/or officer, as the case may be, received no
personal profit and in cases where such person acted in good faith.
E. Section 145 of the General Corporation Law of Delaware ("Section 145"),
under which the Company is organized, empowers the Company to indemnify its
directors and officers by agreement and to indemnify persons who serve, at the
request of the Company, as the directors and officers of other corporations or
enterprises, and expressly provides that the indemnification provided by Section
145 is not exclusive.
F. The Board of Directors of the Company has determined that contractual
indemnification as set forth herein is not only reasonable and prudent but
necessary to promote the best interests of the Company and its stockholders.
G. The Company desires and has requested the Indemnitee to serve or
continue to serve as a director and/or officer of the Company.
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H. The Indemnitee is willing to serve, or to continue to serve, as a
director and/or officer of the Company if the Indemnitee is furnished the
indemnity provided for herein by the Company.
A G R E E M E N T:
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth below, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions.
(a) Agent. For purposes of this Agreement, "agent" of the Company
means any person who: (i) is or was a director and/or officer of the Company or
a subsidiary of the Company; or (ii) is or was serving at the request of, for
the convenience of, or to represent the interest of the Company or a subsidiary
of the Company as a director and/or officer of another foreign or domestic
corporation, partnership or joint venture.
(b) Expenses. For purposes of this Agreement, "expenses" includes all
direct and indirect costs of any type or nature whatsoever (including, without
limitation, all attorneys' fees and related disbursements, other out-of-pocket
costs and reasonable compensation for time spent by the Indemnitee for which
Indemnitee is not otherwise compensated by the Company or any third party,
provided that the rate of compensation and estimated time involved is approved
in advance by the Board of Directors of the Company), 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, Section 145 or otherwise, and amounts paid
in settlement by or on behalf of the Indemnitee, but shall not include any
judgments, fines or penalties actually levied against the Indemnitee.
(c) Proceedings. For the purposes of this Agreement, "proceeding"
means any threatened, pending or completed action, suit, arbitration, hearing or
other proceeding, whether civil, criminal, administrative, investigative or any
other type whatsoever.
(d) Subsidiary. For purposes of this Agreement, "subsidiary" means any
corporation of which more than 50% of the outstanding voting securities are
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 an agent of the Company, at the will of such corporation (or under
separate agreement, if such agreement exists), in the capacity the Indemnitee
currently serves as an officer and/or director of such corporation, so long as
the Indemnitee is duly appointed or elected and qualified in accordance with the
applicable provisions of the Bylaws of such corporation or of any subsidiary
thereof, or until such time as the Indemnitee tenders his resignation in
writing; provided, however, that nothing contained in this Agreement is intended
to create any right to continued employment or provision of services of the
Indemnitee in any capacity.
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3. Indemnification.
(a) Indemnification in Third Party Proceedings. Subject to Section 10
below, the Company shall indemnify the Indemnitee if the Indemnitee is a party
to or threatened to be made a party to or otherwise involved in any proceeding
(other than a proceeding by or in the name of the Company to procure a judgment
in its favor) by reason of the fact that the Indemnitee is or was an agent of
the Company, or by reason of any act or inaction by Indemnitee in any such
capacity, against any and all expenses and liabilities of any type whatsoever
(including, but not limited to, judgments, fines and penalties), actually and
reasonably incurred by Indemnitee in connection with the investigation, defense,
settlement or appeal of such proceeding, but only if the 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
action or proceeding, had no reasonable cause to believe Indemnitee's conduct
was unlawful, pursuant to the presumption set forth in subsection (c) below, as
applicable. The termination of any proceeding by judgment, order of court,
settlement, conviction or on plea of nolo contendere, or its equivalent, shall
not, of itself, create a presumption that the Indemnitee did not act in good
faith in a manner which Indemnitee reasonably believed to be in, or not opposed
to, the best interests of the Company, and with respect to any criminal
proceedings, that such person had reasonable cause to believe that his conduct
was unlawful.
(b) Indemnification in Derivative Actions. Subject to Section 10
below, the Company shall indemnify the Indemnitee if the Indemnitee is a party
to or threatened to be made a party to or otherwise involved in any proceeding
by or in the name of the Company to procure a judgment in its favor by reason of
the fact that the Indemnitee is or was an agent of the Company, or by reason of
any act or inaction by Indemnitee in any such capacity, against all expenses
actually and reasonably incurred by the Indemnitee in connection with the
investigation, defense, settlement, or appeal of such proceedings, but only if
the 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,
pursuant to the presumption set forth in subsection (c) below; provided,
however, that no indemnification under this Section 3 shall be made in respect
of any claim, issue or matter as to which the Indemnitee shall have been finally
adjudged to be liable to the Company by a court of competent jurisdiction due to
willful misconduct of a culpable nature in the performance of the Indemnitee's
duty to the Company, unless and 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 all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses as such
court shall deem proper.
(c) Conclusive Presumption Regarding Indemnitee Conduct. With respect
to Sections 3(a) and 3(b) above, the Indemnitee shall be conclusively presumed
to have 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 action or proceeding, to have had no reasonable cause to believe
Indemnitee's conduct was unlawful, unless a determination is made that the
Indemnitee has not acted in accordance with the standards set forth above (i) by
the Board of Directors by a majority vote of a quorum thereof consisting of
directors who were not parties to the proceeding due to which a claim is made
under this Agreement, (ii) by the
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stockholders of the Company by a majority vote of stockholders who were not
parties to such a proceeding or (iii) in a written opinion of independent legal
counsel, selection of whom has been approved by the Indemnitee in writing or by
a panel of arbitrators, one of whom is selected by the Company, another of whom
is selected by the Indemnitee and the last of whom is selected by the first two
arbitrators so selected.
4. Indemnification of Expenses of Successful Party. Notwithstanding any
other provisions of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any proceeding or in defense
of any claim, issue or matter therein, including the dismissal of any action
without prejudice, the Company shall indemnify the Indemnitee against all
expenses actually and reasonably incurred in connection with the investigation,
defense or appeal of such proceeding.
5. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines or penalties) actually and reasonably incurred
by Indemnitee in the investigation, defense, settlement or appeal of a
proceeding but is not entitled, however, to indemnification for the total amount
thereof, the Company shall nevertheless indemnify the Indemnitee for the portion
thereof to which the Indemnitee is entitled.
6. Expenses.
(a) Advancement of Expenses. Subject to Section 10(b) below, the
Company shall advance all expenses incurred by the Indemnitee in connection with
the investigation, defense, settlement or appeal of any proceeding to which the
Indemnitee is a party or is threatened to be made a party by reason of the fact
that the Indemnitee is or was an agent of the Company. The Indemnitee hereby
undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined that the Indemnitee is not entitled to be
indemnified by the Company as authorized by this Agreement. The advances to be
made hereunder shall be paid by the Company to or on behalf of the Indemnitee
within 30 days following delivery of a written request with reasonable
supporting documentation therefor by the Indemnitee to the Company.
(b) Expenses of a Witness. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of being a director or
officer of the Company, a witness in any proceeding to which Indemnitee is not a
party, Indemnitee shall be indemnified against all expenses actually and
reasonably incurred by Indemnitee or on Indemnitee's behalf in connection
therewith if advance written notice is given to the Company of such proceeding.
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7. Notice and Other Indemnification Procedures.
(a) Notification of Proceeding. Promptly after receipt by the
Indemnitee of notice of the commencement of or the threat of commencement of any
proceeding, the Indemnitee shall, if the Indemnitee believes that
indemnification with respect thereto may be sought from the Company under this
Agreement, notify the Company in writing of the commencement or threat of
commencement thereof.
(b) Request for Indemnification. Any indemnification requested by the
Indemnitee under Section 3 hereof shall be made no later than 10 days after
receipt of the written request of the Indemnitee, unless a good faith
determination is made within said 10-day period in accordance with one of the
methods set forth in Section 3(c) above that the Indemnitee is not or (subject
to final judgment or other final adjudication as provided in Section 10(a)
below) ultimately will not be entitled to indemnification hereunder.
(c) Application for Enforcement. Notwithstanding a determination under
Section 7(b) above that the Indemnitee is not entitled to indemnification with
respect to any specific proceeding, the Indemnitee shall have the right to apply
to any court of competent jurisdiction for the purpose of enforcing the
Indemnitee's right to indemnification pursuant to this Agreement. In such an
enforcement hearing or proceeding, the burden of proving that indemnification or
advances are not appropriate shall be on the Company. Neither the failure of the
Company (including its Board of Directors, stockholders, independent legal
counsel or the panel of arbitrators) to have made a determination prior to the
commencement of such action that the Indemnitee is entitled to indemnification
hereunder, nor an actual determination by the Company (including its Board of
Directors or independent legal counsel or the panel of arbitrators) that the
Indemnitee is not entitled to indemnification hereunder, shall be a defense to
the action or create any presumption that the Indemnitee is not entitled to
indemnification hereunder.
(d) Indemnification of Certain Expenses. The Company shall indemnify
the Indemnitee against all expenses incurred in connection with any hearing or
proceeding under this Section 7 unless the Company prevails in such hearing or
proceeding.
8. Assumption of Defense. In the event the Company shall be obligated to
pay the expenses of any proceeding against the Indemnitee, the Company, if
appropriate, shall be entitled to assume the defense of such proceeding, with
counsel reasonably acceptable to the Indemnitee, upon the delivery to the
Indemnitee of written notice of its election to do so. After delivery of such
notice, approval of such counsel by the Indemnitee and the retention of such
counsel by the Company, the Company shall not be liable to the Indemnitee under
this Agreement for any fees of counsel subsequently incurred by the Indemnitee
with respect to the same proceeding, provided that (a) the Indemnitee shall have
the right to employ his counsel in such proceeding at the Indemnitee's expense;
and (b) if (i) the employment of counsel by the Indemnitee has been previously
authorized in writing by the Company, (ii) the Indemnitee's counsel delivers a
written notice to the Company stating that such counsel has reasonably concluded
that there may be a conflict of interest between the Company and the Indemnitee
in the conduct of any such defense or (iii) the Company shall not, in fact, have
employed counsel to assume the defense of such proceeding within a reasonable
time, then in any such event the fees and expenses of the Indemnitee's counsel
shall be at the expense of the Company.
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9. Insurance. The Company may, but is not obligated to, obtain directors'
and officers' liability insurance ("D&O Insurance") as may be or become
available with respect to which the Indemnitee is named as an insured.
Notwithstanding any other provision of this Agreement, the Company shall not be
obligated to indemnify the Indemnitee for expenses, judgments, fines or
penalties which have been paid directly to the Indemnitee by D&O Insurance. If
the Company has D&O Insurance in effect at the time the Company receives from
the Indemnitee any notice of the commencement of a proceeding, the Company shall
give prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the policy. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of the Indemnitee, all amounts payable as a result of such proceeding
in accordance with the terms of such policy.
10. Exceptions.
(a) Certain Matters. Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify the Indemnitee or pay any expenses in connection
with any proceeding with respect to (i) remuneration paid to the Indemnitee if
it is determined by final judgment or other final adjudication that such
remuneration was in violation of law; (ii) 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, as amended (the "Exchange Act"), a violation or alleged violation of
Section 10 of the Exchange Act, or similar provisions of any federal, state or
local statute; (iii) any payment in connection with any claim made against
Indemnitee to the extent Indemnitee has otherwise received payment (under any
insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable
hereunder; or (iv) which (but only to the extent that) it is determined by final
judgment or other final adjudication that the Indemnitee's conduct was in bad
faith, knowingly fraudulent or deliberately dishonest. For purposes of the
foregoing sentence, a final judgment or other adjudication may be reached in
either the underlying proceeding or action in connection with which
indemnification is sought or a separate proceeding or action to establish rights
and liabilities under this Agreement.
(b) Claims Initiated by the Indemnitee. Any provision herein to the
contrary notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement to indemnify or advance expenses to the Indemnitee with
respect to proceedings or claims initiated or brought voluntarily by the
Indemnitee against the Company or any agent of the Company (and not by way of
defense), except with respect to proceedings brought to establish or enforce a
right to indemnification under this Agreement or any other statute or law or
otherwise as required under Section 145, but such indemnification or advancement
of expenses may be provided by the Company in specific cases if the Board of
Directors of the Company finds it to be appropriate.
(c) Action for Indemnification. Any provision herein to the contrary
notwithstanding, the Company shall be obligated pursuant to the terms of this
Agreement to indemnify the Indemnitee for any expenses incurred by the
Indemnitee with respect to any proceeding instituted by the Indemnitee to
enforce or interpret this Agreement unless the Company prevails in such
proceeding.
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(d) Unauthorized Settlements. Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify the Indemnitee under this Agreement for any amounts
paid in settlement of a proceeding effected without the Company's written
consent. Neither the Company nor the Indemnitee shall unreasonably withhold
consent to any proposed settlement; provided, however, that the Company may in
any event decline to consent to (or to otherwise admit or agree to any liability
for indemnification hereunder in respect of) any proposed settlement if the
Company determines in good faith (pursuant to Section 7(b) above) that the
Indemnitee is not or ultimately will not be entitled to indemnification
hereunder.
(e) Securities Act Liabilities. Any provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify the Indemnitee or otherwise act in violation of any
undertaking appearing in and required by the rules and regulations promulgated
under the Securities Act of 1933, as amended (the "Act") in any registration
statement filed with the Securities and Exchange Commission under the Act. The
Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K
currently generally requires the Company to undertake in connection with any
registration statement filed under the Act to submit the issue of the
enforceability of the Indemnitee's rights under this Agreement in connection
with any liability under the Act on public policy grounds to a court of
appropriate jurisdiction and to be governed by any final adjudication of such
issue. The Indemnitee specifically agrees that any such undertaking shall
supersede the provisions of this Agreement and to be bound by any such
undertaking.
11. Nonexclusivity. The provisions for indemnification and advancement of
expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which the Indemnitee may have under any provision of law, the Company's
Certificate of Incorporation or Bylaws, in any court in which a proceeding is
brought, the vote of the Company's stockholders or disinterested directors,
other agreements or otherwise, both as to action in the Indemnitee's official
capacity and to action in another capacity while occupying his position as an
agent of the Company, and the Indemnitee's rights hereunder shall continue after
the Indemnitee has ceased acting as an agent of the Company and shall inure to
the benefit of the heirs, executors and administrators of the Indemnitee. Any
provision herein to the contrary notwithstanding, the Company may provide, in
specific cases, the Indemnitee with full or partial indemnification if the Board
of Directors of the Company determines that such indemnification is appropriate.
12. Subrogation. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee, who, at the request and expense of the Company,
shall execute all papers required and shall do everything that may be reasonably
necessary to secure such rights, including the execution of such documents
necessary to enable the Company effectively to bring suit to enforce such
rights.
13. Interpretation of Agreement. It is understood that the parties hereto
intend this Agreement to be interpreted and enforced so as to provide
indemnification to the Indemnitee to the fullest extent now or hereafter
permitted by law.
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14. Severability. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever, (a)
the validity, legality and enforceability of the remaining provisions of the
Agreement (including without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby; and (b) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable and to give
effect to Section 13 hereof.
15. Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not similar)
nor shall such waiver constitute a continuing waiver. The indemnification rights
afforded to the Indemnitee hereby are contract rights and may not be diminished,
eliminated or otherwise affected by amendments to the Certificate of
Incorporation or Bylaws of the Company or by other agreements.
16. Successors and Assigns. The terms of this Agreement shall bind, and
shall inure to the benefit of, the successors and assigns of the parties hereto.
17. Notice. Except as otherwise provided herein, any notice or demand
which, by the provisions hereof, is required or which may be given to or served
upon the parties hereto shall be in writing and, if by telegram, telecopy or
telex, shall be deemed to have been validly served, given or delivered when
sent, if by personal delivery, shall be deemed to have been validly served,
given or delivered upon actual delivery and, if mailed, shall be deemed to have
been validly served, given or delivered three business days after deposit in the
United States mails, as registered or certified mail, with proper postage
prepaid and addressed to the party or parties to be notified at the addresses
set forth on the signature page of this Agreement (or such other address(es) as
a party may designate for itself by like notice).
18. Duration of Agreement. This Agreement shall continue until and
terminate upon the later of: (a) 5 years after the date that Indemnitee shall
have ceased to serve as a director and/or officer of the Company; or (b) the
final termination of any proceeding then pending in respect of which Indemnitee
is granted rights of indemnification or advancement of expenses under this
Agreement.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement.
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20. Headings. The headings of the paragraphs and Sections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
21. Governing Law. This Agreement shall be governed exclusively by and
construed according to the laws of the State of Delaware, as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
effective as of the date first above written.
THE COMPANY:
Water Pik Technologies, Inc.,
a Delaware corporation
By:
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Name:
Title:
Address: 00 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
THE INDEMNITEE:
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Signature of the Indemnitee
Name:
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Address:
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