Exhibit 10.22
VERMONT PURE HOLDINGS, LTD.
CRYSTAL ROCK/VERMONT PURE
0000 XXXXXXXXXX XXXXXX
XXXXXXXXX, XXXXXXXXXXX 00000
November 2, 2005
Name and Title _________________________
Address _______________________________
Address _______________________________
Dear _____:
From time to time we have discussed with the officers and directors of
Vermont Pure Holdings, Ltd. ("VPUR") the substantial increase in corporate
litigation, which can subject officers and directors to expensive litigation
risks and large claims for damages. We have also discussed the uncertainties
involved in obtaining and maintaining directors' and officers' liability
insurance on a reasonable basis as well as the potentially limited scope (and
risk of non-renewal) of such insurance as can be obtained.
You have informed us that you are concerned about the level of protection
available to you as an officer or director of VPUR in the present legal climate,
and we understand that your willingness to serve or to continue to serve as an
officer or director of VPUR depends upon, among other things, assurance of
adequate protection on a long-term basis. You have also informed us that you
know of no pending or threatened claim against you relating to VPUR.
The certificate of incorporation of VPUR (the "Charter") provides that VPUR
will indemnify its corporate officers and directors to the full extent permitted
by the applicable statute, which is Section 145 of the Delaware General
Corporation Law. The statute, in turn, authorizes a Delaware corporation to
provide indemnification against expenses and certain other losses incurred by a
director or officer in any proceeding in which he or she is involved as a result
of serving, or having served, as a director, officer, or employee of VPUR or, at
VPUR's request, as a director, officer or employee of another corporation or
entity. In addition, VPUR has the power under Delaware law to enter into
arrangements for indemnification on any terms not prohibited by law that the
Board of Directors deems to be appropriate.
In order to attract and retain your services as an officer or director of
VPUR, VPUR has agreed to indemnify you to the fullest extent of its authority to
do so, subject to the limitations set forth herein. This letter agreement
("Agreement") is intended to supplement and confirm the indemnification
provisions contained in the Charter of VPUR.
VPUR and you (the "Indemnified Party") by this Agreement agree as follows:
Indemnification. VPUR shall indemnify and hold harmless the Indemnified
Party if the Indemnified Party is or was a party or is threatened to be made a
party to, or is otherwise involved with, any Proceeding (as such term is defined
in Section 0):
by reason of the fact that the Indemnified Party is or was a
director, officer, employee or agent of VPUR or any subsidiary of VPUR,
by reason of any action or inaction on the part of the
Indemnified Party while a director, officer, employee or agent of VPUR or
any subsidiary of VPUR,
by reason of the fact that the Indemnified Party is or was
serving at the request of VPUR as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
or
by reason of the fact that the Indemnified Party is or was
serving at the request of VPUR in any capacity with respect to any employee
benefit plan,
against expenses (including reasonable attorneys' fees), judgments, penalties,
fines and amounts paid in settlement (if such settlement is approved in writing
in advance by VPUR, which approval shall not be unreasonably withheld or
delayed) actually and reasonably incurred by the Indemnified Party in connection
with such Proceeding unless VPUR shall establish, in accordance with the
procedures and standards described in Section 0 and Section 0 of this Agreement,
that the Indemnified Party was not entitled to indemnification, as described in
Section 0.
Limitation on Indemnification. Notwithstanding any other provision of this
Agreement, no indemnification shall be paid under this Agreement with respect to
claims involving acts or omissions as to which the Indemnified Party is finally
adjudicated (by court order or judgment from which no right of appeal exists)
not to have acted in good faith in the reasonable belief that the Indemnified
Party's action was in the best interests of VPUR or, to the extent that such
matter relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan;
and no indemnification shall be paid under this Agreement with respect to any
criminal matter in which the Indemnified Party is finally adjudicated (by court
order or judgment from which no right of appeal exists) to have had reasonable
cause to believe that the Indemnified Party's action was unlawful.
Notice of Resignation; No Employment Agreement. In consideration of the
protection afforded by this Agreement, the Indemnified Party agrees not to
resign voluntarily from the position now held by him with VPUR without first
giving to VPUR not less than three weeks' written notice of his intention to
resign. Nothing contained in this Agreement is intended to create or shall
create in the Indemnified Party any right to employment (in the case of a
director) or continued employment (in the case of an employee).
Expenses; Indemnification Procedure.
Advancement of Expenses. VPUR shall advance all reasonable expenses
incurred by the Indemnified Party in connection with the investigation, defense,
settlement or appeal of any Proceeding (but not amounts actually paid in
settlement of any such Proceeding, which amounts shall be paid under Section 0).
The advances to be made hereunder shall be paid by VPUR to the Indemnified Party
within sixty (60) days following delivery of a written request therefor by the
Indemnified Party to VPUR.
Failure to Advance Expenses. If the Indemnified Party shall have
requested an advancement of expenses pursuant to Section 0 and if such request
shall not have been not paid in full by VPUR within sixty (60) days after a
written request by the Indemnified Party for payment thereof was first received
by VPUR, the Indemnified Party may, but need not, at any time thereafter bring
an action against VPUR to recover the unpaid amount of the claim for advancement
of expenses and, subject to Section 0 of this Agreement, the Indemnified Party
shall also be entitled to be reimbursed for the expense (including reasonable
attorneys' fees) of bringing such action.
Reimbursement to VPUR. The Indemnified Party by this Agreement
undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined that the Indemnified Party is not entitled to be
indemnified by VPUR as authorized by this Agreement.
Notice; Cooperation by the Indemnified Party. The Indemnified Party
shall give VPUR prompt notice of the commencement of any Proceeding, or the
threat thereof against the Indemnified Party, for which indemnification will or
could be sought under this Agreement. In addition, the Indemnified Party shall
give VPUR such information and cooperation as it may reasonably require and as
shall be within the Indemnified Party's power. If for any reason the Indemnified
Party is not an employee of VPUR at the time of any activities performed by the
Indemnified Party in connection with the defense of any Proceeding, VPUR shall
compensate the Indemnified Party on the basis of $350.00 per day (or portion
thereof) spent by the Indemnified Party on behalf of such activities at the
request of VPUR, and reimburse the Indemnified Party for all related and
reasonable out-of-pocket expenses, such compensation and expense reimbursement
to be advanced in the manner set forth in Section 0.
Procedure for Indemnification.
Any amounts payable by VPUR pursuant to Section 0 shall be paid
no later than sixty (60) days after the resolution (by judgment,
settlement, dismissal or otherwise) of the claim to which indemnification
is sought. If a claim is brought by the Indemnified Party under this
Agreement, under any statute, or under any provision of VPUR's Charter or
By-Laws, as amended or restated from time to time, which provision provides
for indemnification, and if such claim is not paid in full by VPUR within
such time period, the Indemnified Party may, but need not, at any time
thereafter bring an action against VPUR to recover the unpaid amount of the
claim and, subject to Section 0 of this Agreement, the Indemnified Party
shall also be entitled to be reimbursed for the expense (including
reasonable attorneys' fees) of bringing such action. It shall be a defense
to any such action that the Indemnified Party has not met the standards of
conduct which make it permissible under applicable law for VPUR to
indemnify the Indemnified Party for the amount claimed. Section 0 shall
apply to any such determination and the
burden of proving such defense shall be on VPUR. In addition, the
Indemnified Party shall be entitled to receive interim payments of expenses
pursuant to Section 0 unless and until such defense shall be finally
adjudicated by court order or judgment from which no further right of
appeal exists. VPUR shall not be liable to indemnify the Indemnified Party
under this Agreement for any amounts paid in settlement of any action or
claim effected without its written consent, which consent shall not be
unreasonably withheld or delayed.
It is the parties' intention (which intention reflects applicable
law) that if VPUR contests the Indemnified Party's right to
indemnification, the question of the Indemnified Party's right to
indemnification shall be for the court to decide. The termination of any
action or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not create a presumption
that the Indemnified Party was not entitled to indemnification under this
Agreement. In addition, neither the failure of VPUR to have made a
determination that indemnification of the Indemnified Party is proper under
the circumstances, nor any determination by VPUR that the Indemnified Party
has not met such applicable standard of conduct, shall create a presumption
that the Indemnified Party has or has not met the applicable standard of
conduct.
Notice to Insurers. If, at the time of the receipt of a notice of a claim
pursuant to Section 0 of this Agreement, VPUR has in effect any insurance,
including, without limitation, directors' and officers' liability insurance,
which may provide for payment of or reimbursement for such claim, VPUR shall
give prompt notice of the assertion of such claim to each issuer of such
insurance in accordance with the procedures set forth in the respective
policies. VPUR shall thereafter (if it is appropriate to do so pursuant to the
terms of the applicable insurance policy) take all necessary or desirable action
to cause such insurers to pay, on behalf of the Indemnified Party, all amounts
payable as a result of such Proceeding in accordance with the terms of such
policies.
Other Sources of Indemnification. The Indemnified Party shall not be
required to exercise any rights against any other parties (for example, under
any insurance policy purchased by VPUR, the Indemnified Party or any other
person or entity) before the Indemnified Party enforces this Agreement. However,
to the extent VPUR actually indemnifies the Indemnified Party or advances
expenses, VPUR shall be subrogated to (and shall be entitled to enforce) any
such rights which the Indemnified Party may have against third parties.
Notwithstanding the foregoing, VPUR shall have no right to seek reimbursement
under insurance policies maintained by the Indemnified Party personally or by
the employer of an Indemnified Party who is a non-employee director of VPUR. The
Indemnified Party shall assist VPUR in enforcing rights against third parties if
VPUR pays the Indemnified Party's reasonable costs and expenses of doing so.
Selection of Counsel. In the event VPUR shall be obligated under Section 0
of this Agreement to pay the expenses of any Proceeding involving the
Indemnified Party, VPUR shall be entitled to participate in such Proceeding and,
to the extent it shall wish, to assume the defense of such Proceeding, with
counsel chosen by VPUR and approved by the Indemnified Party, which approval
shall not be unreasonably withheld or delayed. Upon the delivery to the
Indemnified Party of written notice of its election to assume such defense,
approval of such counsel by the Indemnified Party and retention of such counsel
by VPUR, VPUR will not be liable to the Indemnified Party under this Agreement
for any fees of counsel or other expenses
subsequently incurred by the Indemnified Party in connection with the defense of
the same Proceeding, except for fees and expenses incurred by the Indemnified
Party as a consequence of the Indemnified Party's obligation to cooperate with
VPUR in the defense of such matters (as set forth in Section 0 of this
Agreement). Notwithstanding the foregoing, the reasonable fees and expenses of
the Indemnified Party's counsel shall be paid by VPUR only if (i) the employment
of counsel by the Indemnified Party has been previously authorized by VPUR, (ii)
the Indemnified Party shall have reasonably concluded that, under applicable
standards of professional responsibility applicable to attorneys, there may be a
material conflict of interest between VPUR and the Indemnified Party in the
conduct of such defense or that such counsel and the Indemnified Party have
fundamental and material disagreements as to the proper method of managing the
litigation, or (iii) VPUR shall not, in fact, have employed counsel to assume
the defense of such Proceeding. The Indemnified Party shall have the right to
employ his own counsel in any such Proceeding at the Indemnified Party's
expense.
Additional Indemnification Rights; Nonexclusivity.
Scope. In the event of any change, after the date of this Agreement,
in any applicable law, statute or rule which expands the right of a Delaware
corporation such as VPUR to indemnify a member of its board of directors or an
officer, such changes shall, without any further action by VPUR, be included
within the scope of the indemnification provided to the Indemnified Party by,
and VPUR's obligations under, this Agreement. In the event of any change in any
applicable law, statute or rule that limits or restricts the right of VPUR to
indemnify a member of its Board of Directors or an officer, such changes shall
have no effect on this Agreement or the parties' rights and obligations
hereunder, except to the extent specifically required by such law, statute or
rule to be applied to this Agreement.
Nonexclusivity. The indemnification provided by this Agreement shall
not be deemed exclusive of any rights to which the Indemnified Party may be
entitled under VPUR's Charter or By-Laws, any agreement, any vote of
disinterested directors, Delaware law, or otherwise, both as to action in the
Indemnified Party's official capacity and as to action or inaction in another
capacity while holding such office. The indemnification provided under this
Agreement shall continue as to the Indemnified Party for any action taken or not
taken while serving in an indemnified capacity even though he may have ceased to
serve in such capacity at the time any covered Proceeding is commenced.
Partial Indemnification. If the Indemnified Party is entitled under any
provision of this Agreement to indemnification by VPUR for some or a portion of
the expenses, judgments, fines or penalties actually or reasonably incurred by
him in the investigation, defense, appeal or settlement of any Proceeding, but
not, however, for the total amount thereof, VPUR shall nevertheless indemnify
the Indemnified Party for the portion of such expenses, judgments, fines or
penalties to which the Indemnified Party is entitled.
Mutual Acknowledgment. Both VPUR and the Indemnified Party acknowledge that
in certain instances, applicable law or applicable public policy could be
construed to prohibit VPUR from indemnifying its directors and officers under
this Agreement or otherwise. Nothing in this Agreement is intended to require or
shall be construed as requiring VPUR to do or fail to do any act in violation of
any applicable law. VPUR's inability, as a result of a binding order of any
court of competent jurisdiction, to perform its obligations under this Agreement
shall not constitute a breach of this Agreement and VPUR's compliance with any
such order shall constitute compliance with this Agreement.
Directors' and Officers' Liability Insurance. VPUR shall, from time to
time, make the good faith determination whether or not it is practicable for
VPUR to obtain and maintain a policy or policies of insurance with reputable
insurance companies providing the officers and directors of VPUR with coverage
for losses from wrongful acts, or to ensure VPUR's performance of its
indemnification obligations under this Agreement. Among other matters, VPUR may
consider the costs of obtaining such insurance coverage, the protection afforded
by such coverage and the restrictions or other terms required by such insurance.
In all policies of directors' and officers' liability insurance, the Indemnified
Party shall be named as an insured in such a manner as to provide the
Indemnified Party the same rights and benefits as are accorded to the most
favorably insured of VPUR's directors, if the Indemnified Party is a director,
or of VPUR's officers, if the Indemnified Party is not a director of VPUR but is
an officer, or of VPUR's key employees, if the Indemnified Party is not an
officer or director but is a key employee. Notwithstanding the foregoing, VPUR
shall have no obligation to obtain or maintain such insurance if VPUR determines
in good faith that such insurance is not reasonably available, if the premium
costs for such insurance are disproportionate to the amount of coverage
provided, if the coverage provided by such insurance is limited by exclusions so
as to provide an insufficient benefit, or if the Indemnified Party is covered by
similar insurance maintained by a subsidiary or parent of VPUR.
Severability. Nothing in this Agreement is intended to require or shall be
construed as requiring VPUR to do or fail to do any act in violation of
applicable law. The provisions of this Agreement shall be severable as provided
in this Section 0. If this Agreement or any portion of this Agreement shall be
invalidated on any ground by any court of competent jurisdiction, then VPUR
shall nevertheless indemnify the Indemnified Party to the greatest extent
permitted by any applicable law or any applicable portion of this Agreement that
shall not have been invalidated, and the balance of this Agreement not so
invalidated shall be enforceable in accordance with its terms.
Exceptions. Any other provision herein to the contrary notwithstanding,
VPUR shall not be obligated pursuant to the terms of this Agreement:
Excluded Acts. To indemnify the Indemnified Party for any acts or
omissions or transactions from which a director, officer, employee or agent may
not be relieved of liability under applicable Delaware law; or
Claims Initiated by the Indemnified Party. To indemnify or advance
expenses to the Indemnified Party with respect to proceedings or claims
initiated or brought voluntarily by the Indemnified Party and not by way of
defense, except (i) with respect to proceedings brought to establish or enforce
a right to advancement of expenses or indemnification under this Agreement or
any other statute or law and (ii) declaratory judgment or similar proceedings
brought to obtain a judicial interpretation of an applicable statute or
regulation, provided that such indemnification or advancement of expenses may be
provided by VPUR in specific cases if the Board of Directors has approved the
initiation or bringing of such suit; or
Lack of Good Faith. To indemnify the Indemnified Party for any
expenses incurred by the Indemnified Party with respect to any proceeding
instituted by the Indemnified Party to enforce or interpret this Agreement, if a
court of competent jurisdiction determines that each of the material assertions
made by the Indemnified Party in such proceeding was not made in good faith or
was frivolous; or
Insured or Other Reimbursed Claims. To indemnify the Indemnified Party
for expenses or liabilities of any type whatsoever (including, but not limited
to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) which have been reimbursed directly to the Indemnified Party, by an
insurance carrier under a policy of directors' and officers' liability insurance
maintained by VPUR, or otherwise by VPUR.
(e) Claims under Section 16(b). To indemnify the Indemnified Party for
expenses and the payment of profits arising from the purchase and sale by the
Indemnified Party of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended ("Exchange Act"), or any similar successor
statute.
Sale of Assets. In case of (i) the sale or other disposition (excluding
mortgage or pledge) of all or substantially all of the assets of VPUR to another
corporation or entity, or (ii) the merger or other business combination of VPUR
with or into another corporation or entity pursuant to which VPUR will not
survive or will survive only as a subsidiary of another corporation or entity,
in either case with the stockholders of VPUR prior to the merger or other
business combination holding less than 50% of the voting shares of the merged or
combined companies or entities after such merger or other business combination,
or in the event of any other similar reorganization involving VPUR, VPUR shall
to the extent possible cause the acquiring corporation or entity to assume the
obligations of VPUR under this Agreement with respect to the Indemnified Party.
Duration of Agreement.
This Agreement shall be effective as of the date set forth on the
first page and shall apply to acts or omissions of the Indemnified Party which
occurred prior to such date if the Indemnified Party was an officer, director,
employee or other agent of VPUR or any subsidiary, or was serving at the request
of VPUR or any subsidiary as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, at the time
such act or omission occurred.
This Agreement shall be effective for an initial term of two years
from and after the date of this Agreement ("Initial Term"). Thereafter, for so
long as the Indemnified Party remains an officer or director of VPUR, this
Agreement shall automatically renew for an additional period ("Renewal Term") of
two years unless VPUR shall have given written notice of non-renewal to the
Indemnified Party not later than six months before the end of the then current
Term (either the Initial Term or a Renewal Term, as applicable). VPUR's
obligations under this Agreement shall continuously, irrevocably and perpetually
cover any and all of the Indemnified Party's covered acts and omissions that
occur during the Initial Term or any Renewal Term. Such coverage shall apply to
Proceedings relating to acts or omissions occurring during the Term even if such
Proceeding is not initiated until after (or continues beyond) the Term. VPUR's
obligations under this Agreement shall continue perpetually with regard to
covered acts and omissions occurring during the period covered by this Agreement
(including the Initial Term and any Renewal Term, as applicable),
notwithstanding the giving of any such notice of termination or any other
circumstance whatsoever. The indemnification provided under this Agreement shall
continue as to the Indemnified Party even though he may have ceased to be a
director, officer, employee or agent of VPUR.
Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original.
Successors and Assigns. This Agreement shall be binding upon VPUR and its
successors and assigns, and shall inure to the benefit of the Indemnified Party
and the Indemnified Party's spouse, estate, heirs and legal representatives.
Attorneys' Fees. In the event that any action is instituted by the
Indemnified Party under this Agreement to enforce or interpret any of the terms
of this Agreement, the Indemnified Party shall be entitled to be paid all court
costs and expenses, including reasonable attorneys' fees, incurred by the
Indemnified Party with respect to such action, unless as a part of such action,
a court of competent jurisdiction determines that each of the material
assertions made by the Indemnified Party as a basis for such action was not made
in good faith or was frivolous. In the event of an action instituted by or in
the name of VPUR under this Agreement or to enforce or interpret any of the
terms of this Agreement, the Indemnified Party shall be entitled to be paid all
court costs and expenses, including attorneys' fees incurred by the Indemnified
Party in defense of such action (including with respect to the Indemnified
Party's counterclaims and cross-claims made in such action), unless as a part of
such action the court determines that each of the Indemnified Party's material
defenses to such was made in bad faith or was frivolous.
Notices. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given if delivered by
hand, sent by facsimile transmission with confirmation of receipt, sent via a
reputable overnight courier service with confirmation of receipt requested, or
mailed by domestic certified or registered mail with postage prepaid and return
receipt requested, to the Indemnified Party at the address on the first page of
this Agreement and to VPUR at the address below (or at such other address for a
party as shall be specified by like notice), and shall be deemed given on the
date on which delivered by hand or otherwise on the date of receipt as
confirmed:
Crystal Rock/Vermont Pure
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxx, Chief Executive Officer
+ Xxxxx XxxXxxxxx, Chief Financial Officer
Phone: 000-000-0000 x 0000
Fax: 000-000-0000
With a copy to:
Xxxx X. Xxxxxx, Esq.
Xxxxx Xxxx LLP
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Construction Of Certain Words and Phrases.
The term "expense" shall include all attorneys' fees, retainers, court
costs, transcript costs, fees of experts, travel expenses, duplicating costs,
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 or
investigating a Proceeding.
"Proceeding" shall include any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative, except one initiated by the
Indemnified Party.
The "Term" of this Agreement shall include both the Initial Term and
any Renewal Term or Terms (as such terms are defined in Section 0).
Choice of Law. This Agreement shall be governed by and its provisions
construed in accordance with the laws of the State of Delaware without regard to
its conflicts of law rules.
Consent To Jurisdiction; Choice Of Venue. VPUR and the Indemnified Party
each by this Agreement irrevocably consents to the jurisdiction of the courts of
Connecticut and the federal courts within Connecticut for all purposes in
connection with any action or proceeding which arises out of or relates to this
Agreement and agree that any such action or proceeding shall be brought only in
Hartford Superior Court, State of Connecticut, or in United States District
Court, District of Connecticut, sitting in Hartford.
If the foregoing correctly sets forth our understanding, I would appreciate
your executing the enclosed counterpart of this Agreement and returning it to
me. Upon your signature this letter agreement shall constitute a binding
agreement.
VERMONT PURE HOLDINGS, LTD.
By:
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Name:
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Title:
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Accepted and agreed to:
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INDEMNIFIED PARTY IDENTIFIED ON PAGE 1
