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INDEMNIFICATION AGREEMENT
This Agreement is made as of the _______ day of _____________
199__, by and between Xxxxxxxx PBE, Inc., a Delaware corporation (the
"Company"), and the undersigned prospective [OFFICER/DIRECTOR] of the Company,
___________________ (the "Indemnitee"), with reference to the following facts:
The Indemnitee is willing, under certain circumstances, to serve as
an [OFFICER/DIRECTOR] of the Company. The Indemnitee has indicated that he
does not regard the indemnities available under the Company's Bylaws as
adequate to protect him against the risks associated with his service to the
Company. In this connection, the Company and the Indemnitee now agree that
they should enter into this Indemnification Agreement in order to provide
greater protection to Indemnitee against such risks of service to the Company.
Section 145 of the General Corporation Law of the State of
Delaware, under which Law the Company is organized, empowers corporations to
indemnify a person serving as a director, officer, employee or agent of the
Company and a person who serves at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, or other enterprise, and said Section 145 and the Bylaws of the Company
specify that the indemnification set forth in said Section 145 and in the
Bylaws, respectively, shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise.
In order to induce the Indemnitee to serve as a[N]
[OFFICER/DIRECTOR] of the Company and in consideration of his continued
service, the Company hereby agrees, as of the date first set forth above, to
indemnify the Indemnitee as follows:
1. Indemnity. The Company will indemnify the Indemnitee,
his executors, administrators or assigns, for any Expenses (as
defined below) which the Indemnitee is or becomes legally obligated
to pay in connection with any Proceeding. As used in this
Agreement the term "Proceeding" shall include any threatened,
pending or completed claim, action, suit or proceeding, whether
brought by or in the right of the Company or otherwise and whether
of a civil, criminal, administrative or investigative nature, in
which the Indemnitee may be or may have been involved as a party or
otherwise, by reason of the fact that Indemnitee is or was, or has
agreed to become, a director or officer of the Company, by reason
of any actual or alleged error or misstatement or misleading
statement made or suffered by the Indemnitee, by reason of any
action taken by him or of any inaction on his part while acting as
such director or officer, or by reason of the fact that he was
serving at the request of the Company as a director, trustee,
officer, employee or agent of the Company or
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another corporation, partnership, joint venture, trust or other
enterprise; provided, that in each such case Indemnitee acted in
good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Company, and, in the case
of a criminal proceeding, in addition had no reasonable cause to
believe that his conduct was unlawful. As used in this Agreement,
the term "other enterprise" shall include (without limitation)
employee benefit plans and administrative committees thereof, and
the term "fines" shall include (without limitation) any excise tax
assessed with respect to any employee benefit plan.
2. Expenses. As used in this Agreement, the term
"Expenses" shall include (without limitation) damages, judgments,
fines, penalties, settlements and costs, attorneys' fees and
disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to
indemnification under this Agreement.
3. Enforcement. If a claim or request under this
Agreement is not paid by the Company, or on its behalf, within
thirty days after a written claim or request has been received by
the Company, the Indemnitee may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim or
request and if successful in whole or in part, the Indemnitee shall
be entitled to be paid also the Expenses of prosecuting such suit.
The Company shall have the right to recoup from the Indemnitee the
amount of any item or items of Expenses theretofore paid by the
Company pursuant to this Agreement, to the extent such Expenses are
not reasonable in nature or amounts; provided, however, that the
Company shall have the burden of proving such Expenses to be
unreasonable. The burden of proving that the Indemnitee is not
entitled to indemnification for any other reason shall be upon the
Company.
4. 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
shall execute all papers required and shall do everything that may
be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit
to enforce such rights.
5. Exclusions. The Company shall not be liable under this
Agreement to pay any Expenses in connection with any claim made
against the Indemnitee:
(a) to the extent that payment is actually
made to the Indemnitee under a valid, enforceable and
collectible insurance policy;
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(b) to the extent that the Indemnitee is
indemnified and actually paid otherwise than pursuant to
this Agreement;
(c) in connection with a judicial action by or
in the right of the Company, in respect of any claim, issue
or matter as to which the Indemnitee shall have been
adjudged to be liable for negligence or misconduct in the
performance of his duty to the Company unless and only to
the extent that any court in which such action was brought
shall determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, the Indemnitee is fairly and
reasonably entitled to indemnity for such expenses as such
court shall deem proper;
(d) if it is proved by final judgment in a
court of law or other final adjudication to have been based
upon or attributable to the Indemnitee's in fact having
gained any personal profit or advantage to which he was not
legally entitled;
(e) for a disgorgement of profits made from
the purchase and sale by the Indemnitee of securities
pursuant to Section 16(b) of the Securities Exchange Act of
1934 and amendments thereto or similar provisions of any
state statutory law or common law;
(f) brought about or contributed to by the
dishonesty of the Indemnitee seeking payment hereunder;
however, notwithstanding the foregoing, the Indemnitee
shall be protected under this Agreement as to any claims
upon which suit may be brought against him by reason of any
alleged dishonesty on his part, unless a judgment or other
final adjudication thereof adverse to the Indemnitee shall
establish that he committed (i) acts of active and
deliberate dishonesty, (ii) with actual dishonest purpose
and intent, (iii) which acts were material to the cause of
action so adjudicated; or
(g) for any judgment, fine or penalty which
the Company is prohibited by applicable law from paying as
indemnity or for any other reason.
6. Indemnification of Expenses of Successful Party.
Notwithstanding any other provision 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 dismissal without prejudice,
Indemnitee shall be indemnified against any and all Expenses
incurred in connection therewith.
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7. Partial Indemnification. If the Indemnitee is
entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of Expenses, but not, however,
for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Expenses to which
the Indemnitee is entitled.
8. Advance of Expenses. Expenses incurred by the
Indemnitee in connection with any Proceeding, except the amount of
any settlement, shall be paid by the Company in advance upon
request of the Indemnitee that the Company pay such Expenses. The
Indemnitee hereby undertakes to repay to the Company the amount of
any Expenses theretofore paid by the Company to the extent that it
is ultimately determined that such Expenses were not reasonable or
that the Indemnitee is not entitled to indemnification.
9. Approval of Expenses. No Expenses for which
indemnity shall be sought under this Agreement, other than those in
respect of judgments and verdicts actually rendered, shall be
incurred without the prior consent of the Company, which consent
shall not be unreasonably withheld.
10. Notice of Claim. The Indemnitee, as a condition
precedent to his right to be indemnified under this Agreement,
shall give to the Company notice in writing as soon as practicable
of any claim made against him for which indemnity will or could be
sought under this Agreement. Notice to the Company shall be given
at its principal office and shall be directed to the Corporate
Secretary (or such other address as the Company shall designate in
writing to the Indemnitee); notice shall be deemed received if sent
by prepaid mail properly addressed, the date of such notice being
the date postmarked. In addition, the Indemnitee shall give the
Company such information and cooperation as it may reasonably
require and as shall be within the Indemnitee's power.
11. Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one instrument.
12. Indemnification Hereunder Not Exclusive. Nothing
herein shall be deemed to diminish or otherwise restrict the
Indemnitee's right to indemnification under any provision of the
Certificate of Incorporation or Bylaws of the Company and
amendments thereto or under law.
13. Governing Law. This Agreement shall be governed
by and construed in accordance with Delaware law, without regard to
the conflicts of law provisions thereof.
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14. Saving Clause. Wherever there is conflict between
any provision of this Agreement and any applicable present or
future statute, law or regulation contrary to which the Company and
the Indemnitee have no legal right to contract, the latter shall
prevail, but in such event the affected provisions of this
Agreement shall be curtailed and restricted only to the extent
necessary to bring them within applicable legal requirements.
15. Coverage. The provisions of this Agreement shall
apply with respect to the Indemnitee's service as a prospective
[OFFICER/DIRECTOR] of the Company prior to the date of this
Agreement and with respect to all periods of such service after the
date of this Agreement, even though the Indemnitee may have ceased
to be a[N] [OFFICER/DIRECTOR] of the Company.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and signed as of the day and year first above written.
XXXXXXXX PBE, INC.
By__________________________
Authorized Officer
"INDEMNITEE"
____________________________
Name:
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