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Exhibit 10(o)
AMSCAN HOLDINGS, INC.
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as of ______________, ____,
between AMSCAN HOLDINGS, INC., a Delaware corporation (the "Company"), and
_______________ (the "Indemnitee").
Section 145 of the Delaware General Corporation Law empowers
corporations to indemnify persons serving as a director, officer, employee or
agent of such corporation or persons who serve at the request of such
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, and Section 145(f) of
such law further specifies that the indemnification set forth in said Section
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
The Company desires to have the Indemnitee serve or continue
to serve as an officer and/or director of the Company free from undue concern
for unpredictable, inappropriate or unreasonable claims for damages by reason of
the Indemnitee's being an officer and/or director of the Company or by reason of
the Indemnitee's decisions or actions on its behalf; and the Indemnitee desires
to serve, or to continue to serve, in such capacity. Accordingly, in
consideration of the Indemnitee's serving or continuing to serve as an officer
and/or director of the Company, the parties agree as follows:
1. Indemnification. (a) The Company shall indemnify, defend
and hold harmless the Indemnitee against all expenses, losses, claims, damages
and liabilities, including, without limitation, attorneys' fees, judgments,
fines and amounts paid in settlement (all such expenses, collectively, "Costs"),
actually and reasonably incurred by the Indemnitee in connection with the
investigation, defense or appeal of any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, to
which the Indemnitee is a party or threatened to be made a party (all such
actions, collectively, "Proceedings") (i) by reason of the fact that the
Indemnitee is or was a director, officer, employee or agent of the Company or of
any other corporation, partnership, joint venture, trust or other enterprise
(collectively, "Affiliates") of which the indemnitee has been or is serving at
the request of, for the convenience of or to represent the interest of the
Company or (ii) by reason of anything done or not done by the Indemnitee in any
such capacity referred to in the foregoing clause (i). Notwithstanding the
foregoing, "Costs" shall not include any amounts for which the Indemnitee is
actually
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indemnified pursuant to any directors' and officers' liability insurance or
otherwise than pursuant to this Agreement.
2. Culpable Action.
(a) Notwithstanding the provisions of Section 1., the
Indemnitee shall not be entitled to indemnification if the Indemnitee failed to
act in good faith and in a manner the 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, the Indemnitee had no reasonable cause to believe
the Indemnitee's conduct was unlawful (any such action, a "Culpable Action").
(b) The existence or occurrence of a Culpable Action shall be
conclusively determined by (i) a non-appealable, final decision of the court
having jurisdiction over the applicable Proceeding or (ii) a non-appealable,
final decision of the Court of Chancery of the State of Delaware (or if such a
decision is appealable, by the court in such State which has jurisdiction to
render a non-appealable, final decision). Such determination shall be final and
binding upon the parties hereto.
(c) If a Proceeding involves more than one claim, issue or
matter, the determination as to whether there exists or has occurred a Culpable
Action shall be severable as to each and every claim, issue and matter.
(d) The termination of any Proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendre or its equivalent
does not change the presumption of Section 2. that the Indemnitee is entitled to
indemnification hereunder and does not create a presumption that there exists a
Culpable Action.
3. Payment Of Costs. The costs incurred by the Indemnitee in
connection with any Proceeding, including any Proceeding brought pursuant to
Section 2.(b), shall be paid by the Company on an "as incurred" basis; provided,
however, that if it shall ultimately be determined that there exists or has
occurred a Culpable Action with respect to such Proceeding, the Indemnitee shall
repay to the Company the amount (or the appropriate portion thereof as
contemplated by Section 2.(c)) so advanced, including the costs of obtaining a
determination pursuant to Section 2.(b).
4. Notice to the Company by the Indemnitee; Defense of
Proceeding; Settlement.
(a) The Indemnitee shall give to the Company notice in writing
as soon as practicable of any Proceeding for which indemnity will or could be
sought under this Agreement; provided, however, that the failure by the
Indemnitee to give notice as
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provided herein shall not relieve the Company of its obligations hereunder
except to the extent that the Company is actually prejudiced by such failure to
give notice; provided, further, that the failure by the Indemnitee to give
notice as provided herein shall not relieve the Company from any liability it
might have to the Indemnitee otherwise than under this Agreement.
(b) With respect to any Proceeding as to which the Indemnitee
has given notice pursuant to Section 4.(a) hereof, the Company shall have the
right to participate therein and to assume the defense thereof; provided, that
the Company shall not be entitled to assume the defense of any Proceeding (i)
brought by or on behalf of the Company or (ii) as to which independent counsel
for the Company shall have concluded that there may be a conflict of interest
between the Company and the Indemnitee in the conduct of the defense of such
Proceeding.
(c) The Company shall not be liable to the Indemnitee pursuant
to this Agreement for any amounts paid in settlement of any Proceeding unless
the Company gives its written approval of such settlement. The Company shall not
settle any proceeding in any manner that would impose any penalty or limitation
on the Indemnitee without the Indemnitee's written consent. Neither the Company
nor the Indemnitee shall unreasonably withhold approval of, or consent to, any
proposed settlement.
5. Severability. If any provision of this Agreement shall be
determined to be illegal and unenforceable by any court of law, the remaining
provisions shall be severable and enforceable in accordance with their terms.
6. No Right to Employment or Directorship. This Agreement
shall not entitle the Indemnitee to any right or claim to be retained as an
employee, officer and/or director of the Company or limit the right of the
Company to terminate the employment, officership and/or directorship of the
Indemnitee or to change the terms of such employment, officership and/or
directorship.
7. Other Rights and Remedies. This Agreement shall not be
deemed exclusive as to any other non-contractual rights to indemnification to
which the Indemnitee may be entitled under any provision of law, the Certificate
of Incorporation of the Company, any By-law of the Company or otherwise.
8. Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
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9. Descriptive Headings. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction or
any provision of this Agreement.
10. Modification. This Agreement shall not be altered or
otherwise amended except pursuant to an instrument in writing signed by each of
the parties.
11. Notices. All notices, requests, consents and other
communications hereunder to either party shall be deemed to be sufficient if
contained in a written instrument delivered in person or by facsimile
transmission with electronic confirmation of receipt or if sent by air courier
or first class registered or certified mail, postage prepaid, addressed to such
party at the address set forth below or such other address as may hereafter be
designated in writing by notice given pursuant to this Section 11.:
(i) if to the Company, to
Amscan Holdings, Inc.
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: President and Chief Executive Officer
(ii) if to the Indemnitee, to:
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12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
13. Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the benefit
of the Indemnitee and the indemnitee's spouse, heirs, executors and
administrators.
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IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed as of the date first above written.
AMSCAN HOLDINGS, INC.
By__________________________________________
Title:
____________________________________________
Name:
