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INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this "AGREEMENT") entered into, effective as of
____________, 1996, between THE AMERICAN MATERIALS & TECHNOLOGIES CORPORATION, a
Delaware corporation (the "COMPANY"), and ______________________________
("INDEMNITEE"),
W I T N E S S E T H T H A T :
WHEREAS, it is essential to the Company to retain and attract as directors
the most capable persons available; and
WHEREAS, both the Company and Indemnitee recognize the risk of litigation
and other claims currently being asserted against such persons; and
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability and in order to enhance Indemnitee's continued and
effective service to the Company, the Company desires to provide for the
indemnification of, and the advancing of expenses to, Indemnitee to the fullest
extent permitted by law and as set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound hereby, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the capitalized terms
listed below shall have the meanings ascribed to them as follows:
1.1 BOARD. The Board of Directors of the Company.
1.2 EXPENSES. Any expense, liability, or loss, including attorneys'
fees, judgments, fines, ERISA excise taxes and penalties, amounts paid or to be
paid in settlement, any interest, assessments, or other charges imposed thereon,
and any federal, state, local, or foreign taxes imposed as a result of the
actual or deemed receipt of any payments under this Agreement, paid or incurred
in connection with investigating, defending, being a
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witness in, or participating in (including on appeal), or preparing for any of
the foregoing in, any Proceeding relating to any Indemnifiable Event.
1.3 INDEMNIFIABLE EVENT. Any event or occurrence that takes place
either prior to or after the execution of this Agreement (a) related to the fact
that Indemnitee:
(1) is, or has agreed to serve as, a director of the Company; or
(2) while a director of the Company serves at the request of the
Company as a director, officer, employee, trustee, agent, or fiduciary of
another foreign or domestic corporation, partnership, joint venture, employee
benefit plan, trust, or other enterprise, and
(b) related to anything done or not done by Indemnitee in any such
capacity, whether or not the basis of the Proceeding is alleged action in an
official capacity while serving as described in CLAUSES (1) OR (2) above.
1.4 PROCEEDING. Any threatened, pending, or completed action, suit, or
proceeding, or any inquiry, hearing, or investigation, whether conducted by the
Company or any other party, that Indemnitee in good faith believes might lead to
the institution of any such action, suit, or proceeding, whether civil,
criminal, administrative, investigative or other.
2. AGREEMENT TO INDEMNIFY. In the event Indemnitee is, or becomes a party
to, or witness or other participant in, or is threatened to be made a party to,
or witness or other participant in, a Proceeding by reason of (or arising in
part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee from
and against any and all Expenses to the fullest extent permitted by law, as the
same exists or may hereafter be amended or interpreted (but in the case of any
such amendment or interpretation, only to the extent that such amendment or
interpretation permits the Company to provide broader indemnification rights
than were permitted prior thereto). The rights to receive indemnification and
the advancement of Expenses under this Agreement are not exclusive of any other
rights which Indemnitee may be entitled or subsequently entitled under any
statute, the Company's Certificate of Incorporation or Bylaws, by vote of the
shareholders or the
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Board, or otherwise. To the extent that a change in applicable law (whether by
statute or judicial decision) or the Bylaws permits greater indemnification than
is currently provided for an Indemnifiable Event, Indemnitee shall be entitled
to such greater indemnification under this Agreement.
2.1 PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for a portion of Expenses,
but not, however, for the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such Expenses to which Indemnitee is
entitled.
2.2 PROHIBITED INDEMNIFICATION. Subject only to SECTION 2.3 below, no
indemnification nor Expense Advance (as defined in SECTION 3.1 below) pursuant
to this Agreement shall be paid by the Company:
(a) In connection with any Proceeding initiated by Indemnitee against
the Company or any director or officer of the Company unless the Company
has joined in, or the Board has consented to, the initiation of such
Proceeding, or the Proceeding is one to enforce indemnification rights
under SECTION 5 below;
(b) To the extent Indemnitee settles or otherwise disposes of a
Proceeding or causes the settlement or disposal of a Proceeding without the
Company's express prior written consent (which shall not be unreasonably
withheld) unless Indemnitee receives court approval for such settlement or
other disposition where the Company had the opportunity to oppose
Indemnitee's request for such court approval;
(c) With regard to any judicial award if the Company was not given a
reasonable and timely opportunity, at its expense, to participate in the
defense of such action unless the Company's participation in such
Proceeding was barred by this Agreement or the court in such Proceeding; or
(d) For any acts, omissions, transactions or circumstances for which
indemnification is prohibited by applicable state or federal law or until
any preconditions imposed upon, or agreed to by, the Company by or with any
court or governmental agency are satisfied.
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3. Expense Advances
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3.1 ADVANCE OF EXPENSES TO INDEMNITEE. Expenses incurred by Indemnitee
in any Proceeding for which indemnification may be sought under this Agreement
shall be advanced by the Company to Indemnitee within 20 days after receipt by
the Company of a statement or statements from Indemnitee requesting such advance
and reasonably evidencing the Expenses incurred by Indemnitee (an "EXPENSE
ADVANCE"). If it is ultimately determined by a final judicial decision (from
which there is no right of appeal) that Indemnitee is not entitled to be
indemnified by the Company, Indemnitee hereby agrees to repay any amounts
advanced by the Company under this SECTION 3. Indemnitee agrees to execute any
further agreements regarding the repayment of Expenses as the Company may
reasonably request prior to receiving any such advance.
4. Notification And Defense Of Proceeding
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4.1 NOTICE OF CLAIM. Indemnitee shall give written notice to the
Company promptly after Indemnitee has actual knowledge of any Proceeding as to
which indemnification may be sought under this Agreement. The failure of
Indemnitee to give notice, as provided in this SECTION 4.1 shall not relieve the
Company of its obligations to provide indemnification under this Agreement;
however, the amounts to which Indemnitee may be indemnified shall be reduced to
the extent that the Company has been prejudiced by such failure.
4.2 DEFENSE. With respect to any Proceeding, the Company will be
entitled to participate in the Proceeding at its own expense and, except as
otherwise provided below, to the extent the Company so desires, the Company may
assume the defense thereof with counsel reasonably satisfactory to Indemnitee.
However, the Company shall not be entitled to assume the defense of any
Proceeding, (a) brought by the Company, or (b) as to which Indemnitee has
reasonably determined that there may be a conflict of interest between
Indemnitee and the Company in the defense of the Proceeding and Indemnitee does
in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall
furnish such information regarding Indemnitee or the Proceeding in question, as
the Company may reasonably request and as may be required in connection with the
defense or settlement
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of such Proceeding and shall fully cooperate with the Company in every other
respect Except as provided in SECTION 4.3 below, if the Company assumes the
defense of the Proceeding, the Company shall take all necessary steps in good
faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election
to assume the defense of any Proceeding, the Company will not be liable to
Indemnitee under this Agreement or otherwise for any Expenses in excess of
$10,000 subsequently incurred by Indemnitee in connection with the defense of
such Proceeding other than reasonable costs of investigation or as otherwise
provided in CLAUSES (A) THROUGH (C) below. Indemnitee shall have the right to
employ Indemnitee's own counsel in such Proceeding, but all Expenses related
thereto incurred after notice from the Company of its assumption of the defense
shall be at Indemnitee's expense, unless: (a) the employment of counsel by
Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably
determined that there may be a conflict of interest between Indemnitee and the
Company in the defense of the Proceeding, but Indemnitee does not, in fact,
assume and conduct the defense; or (c) the Company does not, in fact, assume and
conduct the defense of such Proceeding.
4.2.3 Any Expenses incurred by the Company in defense of the
Proceeding under this SECTION 4.2 (except in a situation described in CLAUSE
(A), (B) OR (C) of SECTION 4.2.2) shall be considered Expenses advanced by the
Company to Indemnitee under SECTION 3 above.
4.3 LIMITATION ON THE COMPANY'S DISPOSITION OF ANY PROCEEDING. The
Company may consent to a settlement or other disposition of all or any part of
any Proceeding which the Company is defending under SECTION 4.2 above without
first obtaining the written consent of Indemnitee; provided that such settlement
or other disposition would not cause Indemnitee to materially lose any right to
indemnification under this Agreement.
5. ENFORCEMENT. The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnitee to serve as a director of the Company, and
acknowledges that Indemnitee is relying upon this Agreement in serving in such
capacity. Indemnitee shall have the right to enforce his indemnification
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rights under this Agreement by commencing litigation in any court having subject
matter jurisdiction thereof and in which venue is proper. Likewise, the Company
may seek judicial determination of its obligations under this Agreement. Company
and Indemnitee each hereby consent to service of process and to appear in any
such proceeding.
5.1 DEFENSES; BURDEN OF PROOF. It shall be a defense to any action
brought by Indemnitee or the Company concerning enforceability of this Agreement
that it is not permissible under applicable law for the Company to indemnity
Indemnitee for the amount claimed. In connection with any such action or any
determination as to whether Indemnitee is entitled to be indemnified hereunder,
the burden of proof shall be on the Company.
5.2 PRESUMPTIONS. Neither the failure of the Company (including its
Board or shareholders) to have made a determination prior to the commencement of
such action that indemnification is proper under the circumstances because
Indemnitee has met the standard of conduct set forth in applicable law, nor an
actual determination by the Company (including its Board or shareholders) that
Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that Indemnitee has not met the applicable
standard of conduct. For purposes of this Agreement, the termination of any
claim, action, suit or proceeding, by judgment, order. settlement (whether with
or without court approval), conviction, or upon a plea of nolo contendere, or
its equivalent, shall not create a presumption that Indemnitee 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.
5.3 EQUITABLE RELIEF. The Company agrees that the Company's failure to
make indemnification payments or Expense Advances to Indemnitee shall cause
irreparable damage to Indemnitee, the exact amount of which is impossible to
ascertain, and for this reason agrees that Indemnitee shall be entitled to such
injunctive or other equitable relief as shall be necessary to adequately provide
for payment or reasonably anticipated payments.
5.4 INDEMNIFICATION FOR EXPENSES INCURRED IN ENFORCING RIGHTS. The
Company shall indemnify Indemnitee against any and all Expenses and, if
requested by Indemnitee, shall (within 20 after such request), advance such
Expenses to Indemnitee, that are
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incurred by Indemnitee in connection with any claim or action asserted against
or brought by Indemnitee for indemnification of Expenses or payment of Expense
Advances by the Company under this Agreement or any other agreement or under
applicable law or the Company's Certificate of Incorporation or Bylaws now or
hereafter in effect relating to indemnification for Indemnifiable Events. Any
Expenses so paid shall be considered Expense Advances under SECTION 3 above.
6. INSURANCE; SUBROGATION. The Company shall not be liable under this
Agreement to make any payment in connection with any claim made against
Indemnitee to the extent Indemnitee has otherwise received payment (under any
insurance policy, Bylaw, or otherwise) of the amounts otherwise indemnifiable
hereunder. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of
Indemnitee, who shall execute all papers required and shall do everything, that
may be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.
7. General Provisions
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7.1 AMENDMENT OF THIS AGREEMENT. No supplement, modification. or
amendment of this Agreement shall be binding unless executed in writing by both
parties hereto. No waiver of any of the provisions of this Agreement shall
operate as a waiver of arty other provisions hereof (whether or not similar),
nor shall such waiver constitute a continuing waiver. Except as specifically
provided herein, no failure to exercise or any delay in exercising any right or
remedy hereunder shall constitute a waiver thereof.
7.2 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors, assigns, spouses, heirs, and personal and legal representatives. The
indemnification provided under this Agreement shall continue as to Indemnitee
for any action taken or not taken while serving in an indemnified capacity
pertaining to an Indemnifiable Event even though Indemnitee may have ceased to
serve in such capacity at the time of any Proceeding.
7.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the
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subject matter hereof.
7.4 REMEDIES CUMULATIVE. The rights and remedies provided in this
Agreement and by law shall be cumulative and the exercise of any particular
right or remedy shall not preclude the exercise of any other right or remedy in
addition to, or as an alternative to, such right or remedy.
7.5 NOTICES. Any notice required or permitted by this Agreement shall
be given in writing and shall be deemed effectively given upon personal delivery
or, if mailed, upon deposit with the United States Post Office by certified
mail, return receipt requested, postage prepaid, to the address for the
recipient set forth on the signature page hereto or to such other address as the
recipient shall hereafter have noticed the sending party in the manner set forth
above.
7.6 HEADINGS. Descriptive headings contained herein are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement.
7.7 REFERENCES. Any reference in this Agreement to the indemnity
provisions of the Company's Certificate of Incorporation or Bylaws, or to any
applicable law shall refer to such provisions as they shall be amended from time
to time or to any successor provision, except that any change in the Company's
Certificate of Incorporation or Bylaws shall only apply to the extent that such
amendment permits the Company to provide broader indemnification rights to
Indemnitee than currently provided.
7.8 SEVERABILITY. Any provision of this Agreement, which is
unenforceable in any jurisdiction, shall be ineffective in such jurisdiction to
the extent of such unenforceability without invalidating the remaining
provisions of this Agreement, and any unenforceability in any in jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
7.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.10 APPLICABLE LAW. The rights and obligations under this Agreement
shall be governed by, and construed in accordance
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with, the laws of the State of Delaware applicable to contracts between Delaware
residents made and to be performed entirely within such State.
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IN WITNESS WHEREOF, this Agreement has been entered into effective as
of the date first written above.
THE AMERICAN MATERIALS &
TECHNOLOGIES CORPORATION
By:
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Name:
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Title:
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INDEMNITEE:
Signature
Name:
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Address:
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