Exhibit 10.22
[FORM OF INDEMNIFICATION AGREEMENT]
This AGREEMENT, is made as of [__], 2003, between DEL GLOBAL TECHNOLOGIES
CORP., a New York Corporation (the "Corporation"), and [________] (the
"Indemnified Person").
WHEREAS, it is essential to the Corporation to retain and attract as
directors and officers the most capable persons available;
WHEREAS, the Indemnified Person is a director of the Corporation;
WHEREAS, the Corporation understands that the Indemnified Person has
reservations about serving or continuing to serve as a director or officer of
the Corporation without adequate protection from personal liability arising from
such service, and that it is also of critical importance to the Indemnified
Person that adequate provisions be made for advancing costs and expenses of
legal defense;
WHEREAS, the By-laws of the Corporation (as amended to date, the "By-Laws")
require the Corporation to indemnify and advance expenses to its directors and
officers as permitted by Section 721 and related sections of the New York
Business Corporation Law and the Indemnified Person has been serving and
continues to serve as a director and/or officer of the Corporation in part in
reliance on such By-laws;
WHEREAS, the By-laws of the Corporation authorize the Corporation to enter
into indemnification contracts to the fullest extent permitted by applicable law
and the Indemnified person continues to serve as a director and/or officer of
the Corporation in part in reliance upon provisions of this Agreement; and
WHEREAS, in recognition of the foregoing, the Corporation wishes to provide
in this Agreement for the indemnification of, and the advancement of expenses to
the Indemnified Person to the fullest extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained, for the continued coverage of the Indemnified Person
under the Corporation's directors' and officers' liability insurance policies.
NOW, THEREFORE, in consideration of the premises and of the Indemnified
Person continuing to serve the Corporation, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Certain Definitions:
(a) Change in Control: shall be deemed to have occurred if (i) the
shareholders of the Corporation approve a merger or consolidation of the
Corporation with any other corporation, other than (x) a merger or consolidation
which would result in the Voting Securities of the Corporation held by such
shareholders outstanding immediately prior thereto continuing to represent,
together with newly acquired ownership in connection with such transaction by
any trustee or other fiduciary holding securities under an employee benefit plan
of the Corporation or an affiliate (either by remaining outstanding or by
converting into Voting
Securities of the surviving entity), at least 50 percent of the total voting
power represented by the Voting Securities of the Corporation or such surviving
entity outstanding immediately after such merger or consolidation, (y) a merger
or consolidation effected to implement a recapitalization of the Corporation (or
similar transaction) in which no person acquires more than 50 percent of the
total voting power of the Voting Securities then outstanding; (ii) the
shareholders of the Corporation approve an agreement providing for the sale or
other disposition of all or substantially all the assets of the Corporation;
(iii) the shareholders of the Corporation approve a plan of liquidation or
dissolution of the Corporation; (iv) any "person" (as such term is used in
Section 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended, other than the Corporation or any of its affiliates, an underwriter
temporarily having securities pursuant to an offering of such securities, a
trustee or other fiduciary holding securities under an employee benefit plan of
the Corporation or other than a corporation owned directly or indirectly by the
shareholders of the Corporation in substantially the same proportion as their
ownership of Voting Securities of the Corporation, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under said Act), directly or indirectly, of
Voting Securities of the Corporation representing at least 30 percent of the
total voting power represented by the Voting Securities of the Corporation then
outstanding; or (v) the date when Continuing Directors cease to be a majority of
the directors then in office.
(b) Claim: shall mean any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation, whether conducted by the
Corporation or any other party, that the Indemnified Person in good faith
believes might lead to the institution of any such action, suit or proceeding,
whether civil, criminal, administrative, investigative or otherwise.
(c) Continuing Directors: shall mean the persons who constitute the
Board of Directors of the Corporation on the date hereof together with their
successors whose nominations were approved by a majority of Continuing
Directors.
(d) Expenses: shall mean include attorneys' fees and all other costs,
expenses and obligations paid or incurred in connection with investigating,
defending, being a witness in or participating in (including on appeal), or
preparing to defend, be a witness in or participate in any Claim relating to any
Indemnifiable Event.
(e) Indemnifiable Event: has the meaning assigned to it in Section 2
(a) of this Agreement.
(f) Potential Change in Control: shall be deemed to have occurred if
(i) the Corporation enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control; (ii) any person (including the
Corporation) publicly announces an intention to take or to consider taking
actions which if consummated would constitute a Change in Control; (iii) any
person (other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Corporation or other than a corporation owned,
directly or indirectly, by the shareholders of the Corporation in substantially
the same proportion as their ownership of Voting Securities of the Corporation),
who is or becomes the beneficial owner, directly or indirectly, of Voting
Securities of the Corporation representing at least 10 percent of the total
voting power represented by the Voting Securities of the Corporation then
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outstanding, increases his beneficial ownership of Voting Securities by 5
percent or more over the percentage so owned by such person on the date hereof;
or (iv) the Board of Directors of the Corporation adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change in Control has
occurred.
(g) Reviewing Party: any appropriate person or body consisting of a
member or members of the Corporation's Board of Directors or any other person or
body appointed by such Board (including the special, independent counsel
referred to in Section 3 of this Agreement) who is not a party to the particular
Claim for which the Indemnified Person is seeking indemnification.
(h) Voting Securities: any securities of the Corporation which vote
generally in, the election of directors.
2. Basic Indemnification Arrangement.
(a) Except to the extent expressly prohibited by the New York Business
Corporation Law, the Corporation shall indemnify the Indemnified Person if he is
made or threatened to be made a party to, or witness in, any Claim, whether by
or in the right of the Corporation or otherwise, by reason of the fact that the
Indemnified Person, or the Indemnified Person's testator or intestate, is or was
a director or officer of the Corporation, or serves hereinafter or served
hereinbefore at the request of the Corporation any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise in
any capacity while he was such a director or officer (hereinafter referred to as
"Indemnifiable Event"), against judgments, fines, penalties, amounts paid in
settlement and reasonable Expenses incurred in connection with such Claim,
provided that no such indemnification shall be made if a judgment or other final
adjudication adverse to the Indemnified Person establishes that either (i) his
acts were committed in bad faith, or were the result of active and deliberate
dishonesty, and were material to the Claim so adjudicated, or (ii) that he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
(b) The Corporation shall advance or reimburse upon request (within
two business days of such request) to the Indemnified Person all Expenses
reasonably incurred in connection with any Claim relating to an Indemnifiable
Event in advance of the final disposition thereof. The Indemnified Person hereby
undertakes to repay any amount so advanced or reimbursed if he is ultimately
found not to be entitled to indemnification or, where indemnification is
granted, to the extent the Expenses so advanced or reimbursed exceed the amount
to which he is entitled.
(c) If the Indemnified Person has been successful, on the merits or
otherwise, in the defense of a Claim, the Indemnified Person shall be entitled
to indemnification as provided in Section 2(a) of this Agreement. Except as
provided in the preceding sentence and unless ordered by a court, (i) the
obligations of the Corporation under Section 2(a) of this Agreement shall be
subject to the condition that the Reviewing Party shall not have determined (in
a written opinion, in any case in which the special, independent counsel
referred to in Section 3 of this Agreement is involved) that the Indemnified
Person would not be permitted to be indemnified under applicable law, and (ii)
the obligation of the Corporation to advance or
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reimburse Expenses incurred in connection with any Claim relating to an
Indemnifiable Event pursuant to Section 2(b) of this Agreement shall be subject
to the condition that, if, when and to the extent that the Reviewing Party
determines that the Indemnified Person would not be permitted under applicable
law to be so indemnified it connection with such Claim, the Corporation shall
not be obligated pursuant to Section 2(b) hereof to advance or reimburse
Expenses incurred in connection with such Claim, and shall be entitled to be
reimbursed by the Indemnified Person for all Expenses theretofore advanced or
reimbursed in connection with such Claim; provided, however that if the
Indemnified Person has commenced legal proceedings in a court of competent
jurisdiction to secure a determination that the Indemnified Person should be
indemnified in connection with such Claim under applicable law, any
determination made by the Reviewing Party that the Indemnified Person would not
be permitted to be so indemnified shall not be binding and the Indemnified
Person shall not be required to reimburse the Corporation for any advancement or
reimbursement of Expenses in connection with such Claim until a final judicial
determination is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed). If there has not been a Change in
Control, the Reviewing Party shall be selected by the Board of Directors of the
Corporation, and if there has been such a Change in Control, the Reviewing Party
shall be the special, independent counsel referred to in Section 3 hereof. If
there has been no determination by the Reviewing Party or if the Reviewing Party
determines that the Indemnified Person substantively would not be permitted to
be indemnified in whole or in part under applicable law, the Indemnified Person
shall have the right to commence litigation in any court in the State of New
York having subject matter jurisdiction thereof and in which venue is proper
seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, and the Corporation
hereby consents to service of process and to appear in any such proceeding. Any
determination by the Reviewing Party otherwise shall be conclusive and binding
on the Corporation and the Indemnified Person.
3. Change in Control. The Corporation agrees that if there is a Change in
Control (other than a Change in Control which has been approved by a majority of
the Corporation's Board of Directors who were directors immediately prior to
such Change in Control) then with respect to all matters thereafter arising
concerning the rights of the Indemnified Person to indemnity payments and
expense advances or reimbursements under this Agreement, any other agreement,
the Certificate of Incorporation (as amended to date, the "Certificate of
Incorporation") or By-laws of the Corporation now or hereafter in effect
relating to Claims for Indemnifiable Events, the Corporation shall seek legal
advice only from special, independent counsel selected by the Indemnified Person
and approved by the Corporation (which approval shall not be unreasonably
withheld), and who has not otherwise performed services for the Corporation
within the last 10 years. Such independent counsel, among other things, shall
render its written opinion to the Corporation and the Indemnified Person as to
whether and to what extent the Indemnified Person would be permitted to be
indemnified under applicable law. The Corporation agrees to pay the reasonable
fees of the special, independent counsel referred to above and to fully
indemnify such counsel against any and all expenses (including attorneys' fees),
claims liabilities and damages arising out of or relating to this Agreement of
its engagement pursuant hereto.
4. Establishment of Trust. The Corporation may, if authorized by the
Corporation's Board of Directors, create a Trust for the benefit of the
Indemnified Person. In the
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event of a Potential Change in Control, the Corporation from time to time upon
written request of the Indemnified Person shall, if so authorized by the
Corporation's Board of Directors, fund such Trust, in an amount sufficient to
satisfy any and all Expenses reasonably anticipated at the time of each such
request to be incurred in connection with investigating, preparing for,
defending, or appearing as a witness in, any claim relating to an Indemnifiable
Event, and any and all judgments, fines, penalties and amounts paid in
settlement of any and all Claims relating to an Indemnifiable Event from time to
time actually paid or claimed, reasonably anticipated or proposed to be paid.
The amount or amounts to be deposited in the Trust pursuant to the foregoing
funding obligation shall be determined by the Reviewing Party, in any case in
which the special, independent counsel referred to above is involved. The terms
of the Trust shall provide that upon a Change in Control (i) the Trust shall not
be revoked or the principal thereof invaded, without the written consent of the
Indemnified Person, (ii) the Trustee shall advance within two business days of
request by the Indemnified Person any and all Expenses payable to the
Indemnified Person under Section 2(b) of this Agreement (and the Indemnified
Person hereby undertakes to reimburse the Trust under the circumstances under
which the Indemnified Person would be required to reimburse the Corporation
under Section 2(b) and (c) of this Agreement), (iii) the Trust shall continue to
be funded by the Corporation in accordance with and to the extent of the funding
obligation set forth above without any further corporate action on the part of
the Corporation, (iv) the Trustee shall promptly pay to the Indemnified Person
all amounts for which the Indemnified Person shall be entitled to
indemnification pursuant to this Agreement or otherwise, and (v) all unexpended
funds in such Trust shall revert to the Corporation upon a final determination
by a court of competent jurisdiction that the Indemnified Person has been fully
indemnified under the terms of this Agreement. The Trustee shall be chosen by
the Indemnified Person. Nothing in this Section 4 shall relieve the Corporation
of any of its obligations under this Agreement.
5. Indemnification for Additional Expenses. The Corporation shall indemnify
the Indemnified Person against any and all expenses (including attorneys' fees)
and, if requested by the Indemnified Person, shall (within two business days of
such request) advance such expenses to the Indemnified Person, which are
incurred by the Indemnified Person in connection with any Claim asserted against
or action brought by the Indemnified Person for (i) indemnification, advance
payment or reimbursement of Expenses by the Corporation under this Agreement,
any other agreement, the Certificate of Incorporation or By-laws of the
Corporation now or hereafter in effect relating to Claims for Indemnifiable
Events and/or (ii) recovery under any directors' and officers' liability
insurance policies maintained by the Corporation, regardless of whether the
Indemnified Person ultimately is determined to be entitled to such
indemnification, advance expense payment or reimbursement or insurance recovery,
as the case may be.
6. Partial Indemnity, Etc. If the Indemnified Person is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines, penalties and amounts paid in
settlement of a Claim but not, however, for all of the total amount thereof, the
Corporation shall nevertheless indemnify the Indemnified Person for the portion
thereof to which the Indemnified Person is entitled. Moreover, notwithstanding
any other provision of this Agreement, to the extent that the Indemnified Person
has been successful on the merits or otherwise in defense of any or all Claims
relating in whole or it part to an Indemnifiable Event or in defense of any
issue or matter
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therein, including dismissal without prejudice, the Indemnified Person shall be
indemnified against all Expenses incurred in connection therewith, except to the
extent expressly prohibited by the New York Business Corporation Law. In
connection with any determination by the Reviewing Party or otherwise as to
whether the Indemnified Person is entitled to be indemnified hereunder, the
burden of proof shall be on the Corporation to establish that the Indemnified
Person is not so entitled.
7. No Presumption. For purposes of this Agreement, the termination of any
claim, action, suit or proceeding, by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of nolo contendere, or
its equivalent, shall not create a presumption that the Indemnified Person did
not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by applicable
law.
8. Non-exclusivity, Etc. Nothing herein shall limit or affect any right of
any Indemnified Person otherwise than hereunder to indemnification of expenses,
including attorneys' fees, under any statute, rule, regulation, Certificate of
Incorporation, By-Law, insurance policy, contract or otherwise.
9. Liability Insurance. To the extent the Corporation maintains an
insurance policy or policies providing directors' and officers' liability
insurance, the Indemnified Person shall be covered by such policy or policies,
in accordance with its or their terms, to the maximum extent of the coverage
available for any Corporation director or officer.
10. Period of Limitations. No legal action shall be brought and no cause of
action shall be asserted by or on behalf of the Corporation or any affiliate of
the Corporation against the Indemnified Person, the Indemnified Person's spouse,
heirs, executors or personal or legal representatives after the expiration of
two years from the date of accrual of such cause of action, and any claim or
cause of action of the Corporation or its affiliate shall be extinguished and
deemed released unless asserted by the timely filing of a legal action within
such two-year period; provided, however, that if any shorter period of
limitations is otherwise applicable to any such cause of action, such shorter
period shall govern.
11. Amendments, Etc.
(a) No supplement, modification or amendment, or waiver of any of the
provisions of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar), nor shall such waiver constitute a continuing waiver.
(b) The Corporation shall not, except by amendment of this Agreement in
manner provided in the preceding paragraph, take any corporate action or enter
into any agreement which prohibits, or otherwise limits the rights of the
Indemnified Person to, indemnification and advancement and reimbursement of
expenses in accordance with the provisions of this Agreement.
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12. Subrogation. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnified Person, who shall execute all papers
required and shall do everything that may be necessary to secure such rights,
including the execution of those documents necessary to enable the Corporation
effectively to bring suit to enforce such rights.
13. No Duplication of Payments. The Corporation shall not be liable
under this Agreement to make any payment in connection with any Claim made
against the Indemnified Person to the extent the Indemnified Person has
otherwise actually received payment (under any insurance policy, the Certificate
of Incorporation or By-laws of the Corporation or otherwise) of the amounts
otherwise indemnifiable hereunder.
14. Binding Effect, Etc. The provisions of this Agreement shall
continue after the Indemnified Person has ceased to be a director or officer of
the Corporation and shall inure to the benefit of such Indemnified Person's
heirs, executors, administrators and legal representatives. For purposes of this
Agreement, the term "Corporation" shall include any legal successor to the
Corporation, including any entity which acquires all or substantially all of the
assets of the Corporation in one or more transactions.
15. Severability. In case any provision in this Agreement shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement and
reimbursement of expenses to its directors or officers, acting in such
capacities or in the other capacities mentioned herein, to the fullest extent
permitted by law whether arising from alleged or actual occurrences, acts or
failures to act occurring before or after the adoption of this Agreement.
16. Employee Benefit Plan. For purposes of this Agreement, the
Corporation shall be deemed to have requested an Indemnified Person to serve as
a trustee in connection with an employee benefit plan where the performance by
such Indemnified Person of his duties to the Corporation also imposes duties on,
or otherwise involves services by, such Indemnified Person to the plan or
participants or beneficiaries of the plan, and excise taxes assessed on an
Indemnified Person with respect to an employee benefit plan pursuant to
applicable law shall be considered indemnifiable fines.
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Executed as of the day first above written.
DEL GLOBAL TECHNOLOGIES CORP.
By: _____________________________________________
Name:
Title:
INDEMNIFIED PERSON
_________________________________________________
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