Exhibit 10.6
INDEMNIFICATION AGREEMENT (the "Agreement"),
effective as of [ ], by and between Alcon, Inc., a
corporation (Aktiengesellschaft) incorporated under
the laws of Switzerland (the "Company") and
[*](the "Indemnitee").
WHEREAS the Indemnitee has been asked to serve [on the Board of
Directors of the Company (the "Board")] [as an officer of the Company];
WHEREAS it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify persons serving [as members of the
Board] [as officers of the Company] to the fullest extent permitted by
applicable law so that they will serve, or continue to serve, in such capacity
free from undue concern that they will not be so indemnified; and
WHEREAS the Indemnitee is willing to serve and continue to serve [on
the Board] [as an officer of the Company] on the condition that he be so
indemnified.
NOW, THEREFORE, the Company and the Indemnitee agree as follows:
SECTION 1. Services by the Indemnitee. The Indemnitee agrees to serve
at the request of the Company as a [director of the Company (including, without
limitation, service on one or more committees of the Board)] [an officer of the
Company]. The Indemnitee may at any time and for any reason resign from any such
position.
SECTION 2. Indemnification-General. The Company shall advance Expenses
(as hereinafter defined) to the Indemnitee as provided in this Agreement and to
the fullest extent permitted by applicable law from time to time. The rights of
the Indemnitee provided under the preceding sentence shall include, but shall
not be limited to, the rights set forth in the other sections of this Agreement.
SECTION 3. Proceedings Other Than Proceeding by or in the Right of the
Company. The Indemnitee shall be
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entitled to the right of indemnification provided in this Section 3 if, by
reason of his Corporate Status (as hereinafter defined), he is, or is threatened
to be made, a party to or participant in any threatened, pending or completed
Proceeding (as hereinafter defined), other than a Proceeding by or in the right
of the Company. Under this Section 3, the Company will indemnify the Indemnitee
against Expenses if he acted in good faith and in the best interests of the
Company, and, with respect to any criminal Proceeding, had no reasonable cause
to believe this conduct was unlawful.
SECTION 4. Proceedings by or in the Right of the Company. The
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 4 if, by reason of his Corporate Status, he is, or is threatened to be
made, party to or participant in any threatened, pending or completed Proceeding
brought by or in the right of the Company to procure a judgment in its favor.
Pursuant to this Section 4, the Indemnitee shall be indemnified against Expenses
actually and reasonably incurred by him or on his behalf in connection with such
Proceeding if he acted in good faith and in the best interests of the Company.
Notwithstanding the foregoing, no indemnification against such Expenses shall be
made in respect of any claim, issue or matter in such Proceeding as to which the
Indemnitee shall have been adjudged by a final and non-appealable judgment of a
competent court or award of a competent arbitral body to be liable to the
Company or if applicable law prohibits such indemnification; provided, however,
that if applicable law so permits, indemnification against Expenses shall
nevertheless be made by the Company in such event if and to the extent that the
court in which such Proceeding shall have been brought or is pending, shall so
determine.
SECTION 5. Indemnification for Expenses of a Party Who is Wholly or
Partly Successful. (a) To the extent that the Indemnitee is, by reason of his
Corporate Status, a party to and is successful, on the merits, in any
Proceeding, the Company will indemnify the Indemnitee against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith. If the Indemnitee is not wholly successful in defense of any
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Proceeding but is successful on the merits, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify the
Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf in connection with each such successfully resolved claim, issue or
matter. For purposes of this Section 5(a) and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter. The provisions of this Section 5(a) are subject to
Section 5(b).
(b) In no event shall the Indemnitee be entitled to indemnification of
Expenses under Section 5(a) with respect to a claim, issue or matter to the
extent (i) applicable law prohibits such indemnification, or (ii) an admission
is made by the Indemnitee in writing to the Company or in such Proceeding or a
determination is made in such Proceeding that the standard of conduct required
for Indemnification under this Agreement has not been met with respect to such
claim, issue or matter.
SECTION 6. Indemnification for Expenses as a Witness. Notwithstanding
any provisions herein to the contrary, to the extent that the Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith.
SECTION 7. Advance of Expenses. (a) The Company shall advance all
reasonable Expenses incurred by or on behalf of the Indemnitee in connection
with any Proceeding within 10 days after the receipt by the Company of a
statement or statements from the Indemnitee requesting such advance or advances
from time to time, whether prior to or after the final disposition of such
Proceeding; provided, however, that the persons making the determination of the
Indemnitee's entitlement to indemnification of Expenses under Section 8 (the
"Reviewing Party") of this Agreement has not determined that the Indemnitee
would not be permitted to be indemnified under applicable law. Such statement or
statements shall reasonably evidence the Expenses incurred by or on behalf
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of the Indemnitee and shall include or be preceded or accompanied by an
undertaking by or on behalf of the Indemnitee to repay any Expenses advanced if
it shall ultimately be determined that the Indemnitee is not entitled to be
indemnified against such Expenses.
(b) The Company's obligation to advance Expenses pursuant to Section
7(a) shall be subject to the condition that, if, when and to the extent that the
Reviewing Party determines that the Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be reimbursed
by the Indemnitee (who agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if the Indemnitee has commenced or
thereafter commences legal proceedings pursuant to Section 10 of this Agreement
to secure a determination that Indemnitee should be indemnified for Expenses
under applicable law, any determination made by the Reviewing Party to the
contrary shall not be binding and the Indemnitee shall not be required to
reimburse the Company for any Expenses advanced until a final judicial
determination is made with respect thereto. Any required reimbursement of
Expenses by the Indemnitee shall be made by the Indemnitee to the Company within
10 days following the determination that the Indemnitee would not be entitled to
indemnification of Expenses.
SECTION 8. Procedure for Determination of Entitlement to
Indemnification.(a) To obtain indemnification of Expenses under this Agreement,
the Indemnitee shall submit to the Company a written request, including such
documentation and information as is reasonably available to the Indemnitee and
is reasonably necessary to determine whether and to what extent the Indemnitee
is entitled to such indemnification. The Secretary of the Company shall,
promptly upon receipt of such a request for such indemnification, advise the
Board in writing that the Indemnitee has requested such indemnification.
(b) Upon written request by the Indemnitee for indemnification pursuant
to the first sentence of Section 8(a) hereof, a determination, if required by
applicable law, with respect to the Indemnitee's entitlement thereto shall be
made in the specific case by the Board by a majority vote of the Disinterested
Directors
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(as hereinafter defined, even if less than a quorum). If it is so determined
that the Indemnitee is entitled to indemnification of Expenses, payment to the
Indemnitee shall be made within 10 days after such determination. The Indemnitee
shall cooperate with the persons making such determination with respect to the
Indemnitee's entitlement to indemnification, including providing to such persons
upon reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to the Indemnitee and reasonably necessary to such determination.
Subject to the provisions of Section 10 hereof, any costs or expenses (including
reasonable attorneys' fees and disbursements) incurred by the Indemnitee in so
cooperating with the persons making such determination shall be borne by the
Company, and the Company hereby indemnifies and agrees to hold the Indemnitee
harmless from such costs and expenses.
SECTION 9. Presumptions and Effect of Certain Proceedings.(a) In making
a determination with respect to whether the Indemnitee is entitled to
indemnification of Expenses hereunder, the Reviewing Party making such
determination shall presume that the Indemnitee is entitled to such
indemnification under this Agreement if the Indemnitee has submitted a request
for such indemnification in accordance with Section 8(a) of this Agreement, and
anyone seeking to overcome this presumption shall have the burden of proof by a
preponderance of the evidence.
(b) Subject to the terms of Section 14 below, the termination of any
Proceeding or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of the Indemnitee to indemnification of Expenses or
create a presumption that the Indemnitee did not act in good faith and in the
best interest of the Company.
(c) For purposes of any determination of good faith, the Indemnitee
shall be deemed to have acted in good faith if the Indemnitee's action is based
on the records or books of account of the Company, including financial
statement, or on information supplied to the Indemnitee by any of the [other]
officers of the Company in the course of
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their duties, or on the advice of legal or financial counsel for the Company or
the Board (or any committee thereof) or on information or records given or
reports made by an independent certified public accountant or by an appraiser or
other expert selected by the Company or the Board (or any committee thereof).
The provisions of this Section 9(c) shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the Indemnitee may be deemed
or found to have met the applicable standard of conduct set forth in this
Agreement. In addition, the knowledge and/or actions, or failure to act, of any
other director, trustee, partner, managing member, fiduciary, officer, agent or
employee of the Company shall not be imputed to the Indemnitee for purposes of
determining the right to indemnification of Expenses under this Agreement.
Whether or not the foregoing provisions of this Section 9(c) are satisfied, it
shall in any event be presumed that the Indemnitee has acted in good faith and
in a manner he reasonably believed to be in the best interests of the Company.
Anyone seeking to overcome this presumption shall have the burden of proof by a
preponderance of the evidence.
SECTION 10. Remedies of the Indemnitee. (a) In the event:
(i) a determination is made pursuant to Section 8 of this Agreement
that the Indemnitee is not entitled to indemnification of Expenses under this
Agreement;
(ii) the advance of Expenses is not timely made pursuant to Section 7
of this Agreement;
(iii) payment of indemnification is not made pursuant to Section 6 of
this Agreement within 10 days after receipt by the Company of a written request
therefore; or
(iv) payment of indemnification of Expenses is not made within 10 days
after a determination has been made that the Indemnitee is entitled to such
indemnification or such determination is deemed to have been made pursuant to
Section 8 or 9 of this Agreement,
the Indemnitee shall be entitled to an adjudication in an appropriate court at
the place of incorporation of the
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Company to such indemnification or advancement of Expenses. The Indemnitee shall
commence such proceeding seeking an adjudication within 180 days following the
date on which the Indemnitee first has the right to commence such proceeding
pursuant to this Section 10(a); provided, however, that the foregoing clause
shall not apply in respect of a proceeding brought by the Indemnitee to enforce
his rights under Section 5 of this Agreement.
(b) In the event that a determination is made pursuant to Section 8 of
this Agreement that the Indemnitee is not entitled to indemnification of
Expenses, any judicial proceeding or arbitration commenced pursuant to this
Section 10 shall be conducted in all respects as a de novo trial on the merits
and the Indemnitee shall not be prejudiced by reason of that adverse
determination. In any judicial proceeding commenced pursuant to this Section 10,
the Company shall have the burden of proving that the Indemnitee is not entitled
to indemnification of Expenses or advancement of Expenses, as the case may be.
If the Indemnitee commences a judicial proceeding pursuant to this Section 10,
the Indemnitee shall not be required to reimburse the Company for any advances
pursuant to Section 7 until a final and non-appealable judgment of a competent
court is rendered with respect to the Indemnitee's entitlement to
indemnification.
(c) In the event that the Indemnitee, pursuant to this Section 10,
seeks a judicial adjudication to enforce his rights under, or to recover damages
for breach of, this Agreement, the Indemnitee shall be entitled to recover from
the Company, and shall be indemnified by the Company against, any and all
Expenses actually and reasonably incurred by him in such judicial adjudication;
provided, however, if the court confirms the decision that the Indemnitee is not
entitled to recover from the Company, then the Expenses incurred by the
Indemnitee in connection with the judicial adjudication shall be borne by the
Indemnitee.
(d) Any judicial adjudication determined under this Section 10 shall be
binding on the parties.
SECTION 11. Nonexclusivity; Survival of Rights; Insurance;
Subrogation.(a) The rights of indemnification of Expenses and to receive
advancement of Expenses as
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provided by this Agreement shall not be deemed exclusive of any other rights to
which the Indemnitee may at any time be entitled under applicable law, the
By-laws of the Company, any agreement, a vote of shareholders of the Company or
a resolution of directors, or otherwise. No amendment, alteration or repeal of
this Agreement or any provision hereof shall be effective as to the Indemnitee
with respect to any action taken or omitted by the Indemnitee in his Corporate
Status prior to such amendment, alteration or repeal.
(b) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors or officers of the Company
or of any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which such person serves at the request of the Company,
the Indemnitee 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 such
director or officer under such policy or policies.
(c) In the event of any 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 take all action
necessary to secure such rights, including execution of such documents as are
necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
the Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
SECTION 12. Duration of Agreement. This Agreement shall continue for so
long as the Indemnitee may have any liability or potential liability by virtue
of serving as [a director] [an officer] of the Company, including, without
limitation, the final termination of all pending Proceedings in respect of which
the Indemnitee is granted rights of indemnification of Expenses or advancement
of Expenses hereunder and of any Proceeding
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commenced by the Indemnitee pursuant to Section 10 of this Agreement relating
thereto. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors (including any
direct or indirect successor by purchase, merger, consolidation or otherwise to
all or substantially all of the business or assets of the Company), assigns,
spouses, heirs, executors and personal and legal representatives.
SECTION 13. 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 this Agreement (including, without limitation, each portion of any
section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby;
(b) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give maximum effect to the intent
of the parties hereto; and (c) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or enforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
SECTION 14. Exception to Right of Indemnification or Advancement of
Expenses. Notwithstanding any other provision of this Agreement, the Indemnitee
shall not be entitled to indemnification of Expenses or advancement of Expenses
under this Agreement with respect to any Proceeding, or any claim therein,
brought or made by him against the Company except for any claim or Proceeding in
respect of this Agreement and/or the Indemnitee's rights hereunder.
SECTION 15. Identical Counterparts. This Agreement may be executed in
one or more counterparts (whether by original, photocopy or facsimile
signature), each of which shall for all purposes be deemed to be an
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original but all of which together shall constitute one and the same Agreement.
SECTION 16. Headings. The headings of the sections of this Agreement
are inserted for convenience only and shall not be deemed to constitute a part
of this Agreement or to affect the construction thereof.
SECTION 17. Definitions. For purposes of this Agreement:
(a) "Company" means Alcon, Inc., a corporation (Aktiengesellschaft)
organized under the laws of Switzerland.
(b) "Corporate Status" describes the status of a person who is or was
[a director] [an officer] of the Company.
(c) "Disinterested Director" means a director of the Company who is not
and was not a party to, or otherwise involved in, the Proceeding for which
indemnification is sought by the Indemnitee.
(d) "Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs and printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in a
Proceeding.
(e) "Proceeding" includes any action, suit, claim, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing or
any other proceeding whether civil, criminal, administrative or investigative,
including appeals and petitions therefrom.
(f) "Reviewing Party" has the meaning set forth in Section 7(a).
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SECTION 18. Maintenance of Insurance. The Company shall use reasonable
best efforts to obtain and maintain in effect during the entire period for which
the Company is obligated to indemnify the Indemnitee under this Agreement, one
or more policies of insurance with reputable insurance companies to provide the
directors [and officers] of the Company with coverage for losses from wrongful
acts and omissions and to ensure the Company's performance of its
indemnification obligations under this Agreement. In all such insurance
policies, the Indemnitee shall be named as an insured in such a manner as to
provide the Indemnitee with the same rights and benefits as are accorded to the
most favorably insured of the Company's directors and officers. Notwithstanding
the foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company determines in good faith that the Indemnitee is covered
by similar insurance maintained by a subsidiary or parent of the Company.
SECTION 19. Modification and Waiver. No supplement, modification or
amendment 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.
SECTION 20. Notice by Indemnitee. The Indemnitee agrees promptly to
notify the Company in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or advancement of
Expenses covered hereunder.
SECTION 21. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and received on behalf of or by the party to
whom said notice or other communication shall have been directed, or (ii) for
mail originating from and delivered within the United States, mailed by U.S.
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed: (a) if to the Company: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇, Attention: President; and (b) if to any other
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party hereto, including the Indemnitee, to the address of such party set forth
on the signature page hereof; or to such other address as may have been
furnished by any party to the other(s), in accordance with this Section.
SECTION 22. Governing Law; Venue, etc. (a) THE PARTIES AGREE THAT THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE SUBSTANTIVE LAWS OF SWITZERLAND.
(b) ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
SHALL BE BROUGHT BEFORE THE EXCLUSIVE JURISDICTION OF THE COURTS AT THE PLACE OF
INCORPORATION OF THE COMPANY, BEING THE CANTON OF ZUG, SWITZERLAND.
(c) ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL
BE FILED IN AND LITIGATED SOLELY BEFORE THE COURTS LOCATED IN SWITZERLAND, AND
EACH PARTY TO THIS AGREEMENT:(1) GENERALLY AND UNCONDITIONALLY ACCEPTS THE
EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND VENUE THEREIN, AND WAIVES TO
THE FULLEST EXTENT PROVIDED BY LAW ANY DEFENSE OR OBJECTION TO SUCH JURISDICTION
AND VENUE BASED UPON THE DOCTRINE OF "FORUM NON CONVENIENS"; AND (2) GENERALLY
AND UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH PROCEEDING BY
DELIVERY OF CERTIFIED OR REGISTERED MAILING OF THE SUMMONS AND COMPLAINT IN
ACCORDANCE WITH THE NOTICE PROVISIONS OF THIS AGREEMENT. THE FOREGOING CONSENT
TO JURISDICTION SHALL NOT CONSTITUTE GENERAL CONSENT TO SERVICE OF PROCESS IN
THE STATE FOR ANY PURPOSE EXCEPT AS PROVIDED ABOVE, AND SHALL NOT BE DEEMED TO
CONFER RIGHTS ON ANY PERSON OTHER THAN THE PARTIES TO THIS AGREEMENT.
SECTION 23. Miscellaneous. Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
Alcon, Inc.,
by ___________________________________________
Name:
Title:
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[X],
by ___________________________________________
Name:
Title:
Address:
