1603487.txt
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made and entered into as of ________,
2003, between COLOR IMAGING, INC., a Delaware corporation (the "Corporation"),
and ---------- (the "Indemnitee").
W I T N E S S E T H:
WHEREAS Indemnitee is a member of the board of directors of the Corporation
(the "Board of Directors"), and in such capacity is performing a valuable
service for the Corporation; and
WHEREAS Indemnitee is willing to serve, continue to serve, and take on
additional service for or on behalf of the Corporation on the condition that he
be indemnified as herein provided; and
WHEREAS it is intended that Indemnitee shall be paid promptly by the
Corporation all amounts necessary to effectuate in full the indemnity provided
herein:
NOW, THEREFORE, in consideration of the premises and the covenants in this
Agreement, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. SERVICES BY INDEMNITEE. Indemnitee agrees to serve as a director of the
Corporation so long as he is duly appointed or elected and qualified in
accordance with the applicable provisions of the Certificate of Incorporation
and By-laws of the Corporation or any subsidiary of the Corporation and until
such time as he resigns or fails to stand for election or is removed from his
position. Indemnitee may at any time and for any reason resign or be removed
from such position (subject to any other contractual obligation or other
obligation imposed by operation of law), in which event the Corporation shall
have no obligation under this Agreement to continue Indemnitee in any such
position.
2. INDEMNIFICATION.
(a) The Corporation shall indemnify Indemnitee to the fullest extent
allowed by law whenever he is or was a party or is threatened to be made a party
to any Proceeding, including without limitation any such Proceeding brought by
or in the right of the Corporation, because he is or was a director of the
Corporation or is or was serving at the request of the Corporation as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise, or because of anything done or not done by Indemnitee in such
capacity, against Expenses and Liabilities (including the costs of any
investigation, defense, settlement or appeal) actually and reasonably incurred
by Indemnitee or on his behalf in connection with such Proceeding, if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) To the extent that Indemnitee has been successful on the merits or
otherwise in defense of any Proceeding, he shall be indemnified to the fullest
extent permitted by law against Expenses and Liabilities actually and reasonably
incurred by him in connection therewith.
3. MANDATORY ADVANCEMENT OF EXPENSES. All reasonable Expenses incurred by
or on behalf of Indemnitee shall be advanced from time to time by the
Corporation to Indemnitee within thirty (30) days after the Corporation's
receipt of a written request for an advance of Expenses by Indemnitee, whether
prior to or after final disposition of a Proceeding. The written request for an
advancement of any and all Expenses under this Section shall contain reasonable
detail of the Expenses incurred by Indemnitee. If required by law, Indemnitee
shall agree, at the time of such advance, to repay the amounts advanced if it is
ultimately determined that Indemnitee is not entitled to be indemnified pursuant
to the terms of this Agreement.
4. LIMITATIONS. The foregoing indemnity and advancement of Expenses shall
apply only to the extent that Indemnitee has not been indemnified and reimbursed
pursuant to such insurance as the Corporation may maintain for Indemnitee's
benefit or pursuant to the Certificate of Incorporation or Bylaws of the
Corporation, provided, however, that notwithstanding the availability of such
other indemnification and reimbursement pursuant to such Corporation-maintained
policies, Indemnitee may, with the Corporation's consent, claim indemnification
and advancement of Expenses pursuant to this Agreement by assigning Indemnitee's
claims under such insurance to the Corporation to the extent Indemnitee is paid
by the Corporation.
5. INSURANCE. The Corporation may, but is not obligated to, purchase and
maintain insurance to protect itself and/or Indemnitee against Expenses and
Liabilities in connection with Proceedings to the fullest extent permitted by
applicable laws. The Corporation may, but is not obligated to, create a trust
fund, grant a security interest or use other means (including, without
limitation, a letter of credit) to ensure the payment of such amounts as may be
necessary to effect indemnification or advancement of Expenses as provided in
this Agreement.
6. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) Whenever Indemnitee believes that he is entitled to indemnification
pursuant to this Agreement, Indemnitee shall submit a written request for
indemnification to the Corporation. Any request for indemnification shall
include sufficient documentation or information reasonably available to
Indemnitee to support his claim for indemnification. Indemnitee shall submit
such claim for indemnification within a reasonable time not to exceed three
years after any judgment, order, settlement, dismissal, arbitration award,
conviction, acceptance of a plea of nolo contendere or its equivalent, final
termination or other disposition or partial disposition of any Proceeding,
whichever is the latest event for which Indemnitee requests indemnification. To
the extent Section 2(b) is inapplicable and a determination is required by the
Corporation pursuant to Section 2(a) that Indemnitee is entitled to
Indemnification, and the Corporation fails to respond within sixty (60) days of
such request, the Corporation shall be deemed to have approved the request. Any
indemnification which is due and payable to Indemnitee shall be made promptly
and in any event within thirty (30) days after the determination that Indemnitee
is entitled to such amounts.
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(b) To the extent Section 2(b) is inapplicable and if such a
determination is required pursuant to Section 2(a), the Indemnitee shall be
entitled to select the forum in which Indemnitee's request for indemnification
will be heard, which selection shall be included in the written request for
indemnification required in Section 6(a). The forum shall be any one of the
following:
(i) The stockholders of the Corporation;
(ii) A majority vote of the Board of Directors consisting of
Disinterested Directors (even though less than a quorum); or
(iii) If there are no Disinterested Directors, or if the
Disinterested Directors so direct, by independent legal counsel in a written
opinion.
If Indemnitee fails to make such designation, his claim shall be determined
by an appropriate court of the State of Delaware.
7. FEES AND EXPENSES OF COUNSEL. The Corporation agrees to pay the
reasonable fees and expenses of independent legal counsel should such counsel be
retained to make a determination of Indemnitee's entitlement to indemnification
pursuant to Section 6 of this Agreement.
8. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination pursuant to Section 6 hereof
is made that Indemnitee is not entitled to indemnification, (ii) advances of
Expenses are not made pursuant to this Agreement for any reason, (iii) payment
has not been timely made following a determination of entitlement to
indemnification pursuant to this Agreement, or (iv) Indemnitee otherwise seeks
enforcement of this Agreement, Indemnitee shall be entitled to a final
adjudication of his rights in an appropriate court. The Corporation shall not
oppose Indemnitee's right to seek any such adjudication.
(b) In the event that a determination that Indemnitee is not entitled to
indemnification, in whole or in part, has been made pursuant to Section 6
hereof, the decision in the judicial proceeding provided in paragraph (a) of
this Section 8 shall be made de novo and Indemnitee shall not be prejudiced by
reason of a determination that he is not entitled to indemnification.
(c) If a determination that Indemnitee is entitled to indemnification
has been made pursuant to Section 6 hereof or otherwise pursuant to the terms of
this Agreement, the Corporation shall be bound by such determination in the
absence of (i) misrepresentation of a material fact by Indemnitee or (ii) a
specific finding (which has become final) by an appropriate court that all or
any part of such indemnification is expressly prohibited by law.
(d) In any court proceeding pursuant to this Section 8, the Corporation
shall be precluded from asserting that the procedures and presumptions of this
Agreement are not valid, binding and enforceable. The Corporation shall
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stipulate in any such court that the Corporation is bound by all the provisions
of this Agreement and is precluded from making any assertion to the contrary.
9. MODIFICATION, WAIVER, TERMINATION AND CANCELLATION. No supplement,
modification, termination, cancellation 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.
10. DEPOSIT OF FUNDS IN TRUST. If the Corporation voluntarily decides to
dissolve or to file a petition for relief under any applicable bankruptcy,
moratorium or similar laws, then not later than 10 days prior to such
dissolution or filing, the Corporation shall deposit in trust for the sole and
exclusive benefit of Indemnitee a cash amount equal to all amounts previously
authorized to be paid to Indemnitee hereunder, such amounts to be used to
discharge the Corporation's obligations to Indemnitee hereunder. Any amounts in
such trust not required for such purpose shall be returned to the Corporation.
This Section 10 shall not apply to the dissolution of the Corporation in
connection with a transaction as to which Section 15 applies.
11. NOTICE BY INDEMNITEE AND DEFENSE OF CLAIM. Indemnitee shall promptly
notify the Corporation in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
matter, whether civil, criminal, administrative or investigative, but the
omission to so notify the Corporation will not relieve it from any liability
which it may have to Indemnitee if such omission does not prejudice the
Corporation's rights. If such omission does prejudice the Corporation's rights,
the Corporation will be relieved from liability only to the extent of such
prejudice. With respect to any Proceeding as to which Indemnitee notifies the
Corporation of the commencement thereof:
(a) The Corporation will be entitled to participate therein at its own
expense; and
(b) The Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel reasonably
satisfactory to Indemnitee; provided, however, that the Corporation shall not be
entitled to assume the defense of any Proceeding if Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Corporation and Indemnitee with respect to such Proceeding. After notice from
the Corporation to Indemnitee of its election to assume the defense thereof, the
Corporation will not be liable to Indemnitee under this Agreement for any
Expenses subsequently incurred by Indemnitee in connection with the defense
thereof, other than reasonable costs of investigation or as otherwise provided
below. Indemnitee shall have the right to employ his own counsel in such
Proceeding but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof shall be at the expense
of Indemnitee unless:
(i) The employment of counsel by Indemnitee has been authorized by
the Corporation;
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(ii) Indemnitee shall have reasonably concluded that counsel engaged
by the Corporation may not adequately represent Indemnitee;
(iii) The Corporation shall not in fact have employed counsel to
assume the defense in such Proceeding or shall not in fact have assumed such
defense and be acting in connection therewith with reasonable diligence;
in each of which cases the fees and expenses of such counsel shall be at the
expense of the Corporation.
(c) The Corporation shall not settle any Proceeding in any manner which
would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent; provided, however, that Indemnitee will not unreasonably
withhold his consent to any proposed settlement.
12. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing and shall be sent by Federal Express or other
nationally recognized overnight or same day courier service providing a return
receipt (and shall be effective when received, when refused or when the same
cannot be delivered, as evidenced on the return receipt) to the following
addresses:
To Corporation: Color Imaging, Inc.
0000 Xxxxxxxxx Xxx. Xxxx. Xxxxx 000
Xxxxxxxx, XX 00000
Attention: President
(000) 000-0000
To Indemnitee: -------------------------------------
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-------------------------------------
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13. NONEXCLUSIVITY. The rights of Indemnitee hereunder shall not be deemed
exclusive of any other rights to which Indemnitee may now or in the future be
entitled under the Delaware General Corporation Law, the Corporation's
Certificate of Incorporation or By-Laws, or any agreements, vote of
stockholders, resolution of the Board of Directors or otherwise. The provisions
of this Agreement are hereby deemed to be a contract right between the
Corporation and the Indemnitee and any repeal of the relevant provisions of the
General Corporation law of the State of Delaware, or other applicable law, shall
not affect this Agreement or its enforceability.
14. CERTAIN DEFINITIONS.
(a) References to the "Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
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director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this Agreement
with respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had continued.
(b) "Disinterested Director" shall mean a director of the Corporation
who is not or was not a party to the Proceeding in respect of which
indemnification is being sought by Indemnitee.
(c) "Expenses" shall mean all direct and indirect costs (including,
without limitation, attorneys' fees, retainers, court costs, transcripts, fees
of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and all other
disbursements or out-of-pocket expenses) actually and reasonably incurred in
connection with a Proceeding or establishing or enforcing a right to
indemnification under this Agreement, applicable law or otherwise; provided,
however, that "Expenses" shall not include any Liabilities.
(d) "Indemnification Period" shall mean the period of time during which
Indemnitee shall continue to serve as a director of the Corporation, and
thereafter so long as Indemnitee shall be subject to any possible Proceeding
arising out of acts or omissions of Indemnitee as a director of the Corporation.
(e) "Liabilities" shall mean liabilities of any type whatsoever
including, but not limited to, any judgments, fines, ERISA excise taxes and
penalties, penalties and amounts paid in settlement (including all interest
assessments and other charges paid or payable in connection with or in respect
of such judgments, fines, penalties or amounts paid in settlement) of any
Proceeding.
(f) "Proceeding" shall mean any threatened, pending or completed action,
claim, suit, arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative, including any appeal therefrom.
(g) For purposes of this Agreement, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Agreement.
15. BINDING EFFECT, DURATION AND SCOPE OF AGREEMENT. This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns (including any direct or
indirect successor, by purchase, merger, consolidation or otherwise, to all or
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substantially all of the business or assets of the Corporation), heirs and
personal and legal representatives. This Agreement shall continue in effect
during the Indemnification Period, regardless of whether Indemnitee continues to
serve as a director.
16. SEVERABILITY. If any provision or provisions of this Agreement (or any
portion thereof) 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 shall not in any way be affected or impaired
thereby; and
(b) to the fullest extent legally possible, the provisions of this
Agreement shall be construed so as to give effect to the intent of any provision
held invalid, illegal or unenforceable.
17. GOVERNING LAW AND INTERPRETATION OF AGREEMENT. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Delaware, as applied to contracts between Delaware residents entered into and
to be performed entirely within Delaware. If the laws of the State of Delaware
are hereafter amended to permit the Corporation to provide broader
indemnification rights than said laws permitted the Corporation to provide prior
to such amendment, the rights of indemnification and advancement of expenses
conferred by this Agreement shall automatically be broadened to the fullest
extent permitted by the laws of the State of Delaware, as so amended.
18. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties hereto, and there are no other agreements, contracts or
understandings between the parties hereto with respect to the subject matter of
this Agreement, except as specifically referred to herein or as provided in
Section 13 hereof.
19. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines or penalties actually and reasonably incurred by him
in the investigation, defense, appeal or settlement of any Proceeding but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of such Expenses, judgments, fines or penalties to
which Indemnitee is entitled.
20. 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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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
CORPORATION:
COLOR IMAGING, INC.
By: --------------------------------
Name:
--------------------------------
Title:
--------------------------------
INDEMNITEE:
--------------------------------
Name:
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