FORM OF DIRECTOR INDEMNIFICATION AGREEMENT (Delaware corporation)
Exhibit
10
FORM
OF
DIRECTOR INDEMNIFICATION AGREEMENT
(Delaware
corporation)
Indemnification
Agreement (this “Agreement”),
dated
as of April __, 2006 between Ford Motor Company, a Delaware corporation (the
“Company”),
and
__________ (“Indemnitee”).
W
I T N E
S S E T H:
WHEREAS,
highly competent persons have become more reluctant to serve publicly-held
corporations as directors or in other capacities unless they are provided with
adequate protection through insurance and indemnification against risks of
claims and actions against them arising out of their service to and activities
on behalf of the corporation.
WHEREAS,
the Board of Directors of the Company (the “Board”)
has
determined that, in order to attract and retain qualified individuals, the
Company will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its subsidiaries
from certain liabilities. Although the furnishing of such insurance has been
a
customary and widespread practice among United States-based corporations and
other business enterprises, the Company believes that, given current market
conditions and trends, such insurance may be available to it in the future
only
at higher premiums and with more exclusions. At the same time, directors,
officers, and other persons in service to corporations or business enterprises
are being increasingly subjected to expensive and time-consuming litigation
relating to, among other things, matters that traditionally would have been
brought only against the Company or business enterprise itself.
WHEREAS,
the Certificate of Incorporation of
the
Company provides that the Company shall indemnify and advance expenses to all
directors and officers of the Company in the manner set forth therein and to
the
fullest extent permitted by applicable law, and the Company’s Certificate of
Incorporation provides for limitation of liability for directors. In addition,
Indemnitee may be entitled to indemnification pursuant to the General
Corporation Law of the State of Delaware (“DGCL”).
The
Certificate of Incorporation and the DGCL expressly provide that the
indemnification provisions set forth therein are not exclusive, and thereby
contemplate that contracts may be entered into between the Company and members
of the board of directors, officers and other persons with respect to
indemnification.
WHEREAS,
the uncertainties relating to such insurance and to indemnification have
increased the difficulty of attracting and retaining such persons.
WHEREAS,
the Board has determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons that there
will be increased certainty of such protection in the future.
WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of, such persons
to the fullest extent permitted by applicable law so that they will serve or
continue to serve the Company free from undue concern that they will not be
so
indemnified.
WHEREAS,
this Agreement is a supplement to and in furtherance of the Certificate of
Incorporation Company and any resolutions adopted pursuant thereto and shall
not
be deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder.
WHEREAS,
Indemnitee is concerned that the protection available under the Company’s
charter and by-laws and insurance may not be adequate, and may not be willing
to
serve as an officer or director of the Company without greater certainty
concerning such protection, and the Company desires Indemnitee to serve in
such
capacity and is willing to provide such greater certainty.
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:
ARTICLE
1
CERTAIN
DEFINITIONS
(a) As
used
in this Agreement:
“Corporate
Status”
means
the status of a person who is or was a director, officer, employee or agent
of
the Company or who is or was serving at the request of the Company as a
director, officer, employee or agent of any other Enterprise.
“Enterprise”
means
any corporation, limited liability company, partnership, joint venture, trust,
employee benefit plan or other person or enterprise.
2
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Expenses”
means
all costs and expenses (including fees and expenses of counsel) paid or incurred
in connection with investigating, defending, being a witness in or otherwise
participating in, or preparing to defend, be a witness in or participate in,
a
Proceeding (or any appeal therefrom). Expenses shall include expenses incurred
in connection with any appeal resulting from any Proceeding, including the
premium, security for and other costs relating to any cost bond, supersedeas
bond or other appeal bond or its equivalent.
“Liabilities”
means
all judgments, fines (including any excise taxes assessed with respect to any
employee benefit plan), penalties and amounts paid in settlement and other
liabilities (including all interest, assessments and other charges paid or
payable in connection with or in respect of any such amounts) arising out of
or
in connection with any Proceeding; provided
that
Liabilities shall not include any Expenses.
“person”
means
an individual, corporation, partnership, limited liability company, association,
trust or other entity or organization.
“Proceeding”
includes any threatened, pending or completed action, suit or other proceeding
(which shall include an arbitration or other alternate dispute resolution
mechanism), whether civil, criminal, administrative or investigative in nature
(including any appeal therefrom) and whether instituted by or on behalf of
the
Company or any other party, in any such case, in which Indemnitee was, is or
may
be involved as a party or otherwise by reason of any Corporate Status of
Indemnitee or by reason of any action taken (or failure to act) by him or on
his
part while serving in any Corporate Status (in each case, whether or not serving
in such capacity at the time any liability or expense is incurred for which
indemnification or advancement of expenses can be provided under this
Agreement), or any inquiry or investigation that Indemnitee in good faith
believes might lead to the institution of any such action, suit or other
proceeding; provided
that
Proceeding shall not include an action, suit or other proceeding contemplated
by
Section
7.06(b).
(b) For
the
purposes of this Agreement:
References
to the “Company” shall include, in addition to the surviving or resulting
corporation in any merger or consolidation, any constituent corporation
(including any constituent of a constituent) absorbed in a merger or
consolidation which, if its separate existence had continued, would have had
power and authority to indemnify its directors, officers, employees or agents,
so that if Indemnitee is or was a director, officer, employee or agent of such
constituent corporation or is or was serving at the request of such constituent
corporation as a
3
director,
officer, employee or agent of another Enterprise, then Indemnitee shall stand
in
the same position under the provisions of this Agreement with respect to the
surviving or resulting corporation as Indemnitee would have with respect to
such
constituent corporation if its separate existence had continued.
References
to “director, officer, employee or agent” shall include a trustee, general
partner, managing member, fiduciary or board of directors’ committee
member.
References
to “serving at the request of the Company” shall include any service as a
director, officer, employee or agent of the Company or any other Enterprise
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 such person
reasonably believed to be in the best interests 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 Company”.
ARTICLE
2
SERVICES
BY INDEMNITEE
Section
2.01.
Services by Indemnitee. Indemnitee
hereby agrees to serve or continue to serve as a director of the Company, for
so
long as Indemnitee is duly elected or appointed or until Indemnitee tenders
his
resignation or is removed.
ARTICLE
3
INDEMNIFICATION AND
ADVANCEMENT OF EXPENSES
Section
3.01.
Indemnification. (a) The
Company hereby agrees to and shall indemnify Indemnitee and hold him harmless,
to the fullest extent permitted by applicable law, from and against
any and
all Expenses and Liabilities actually and reasonably incurred by Indemnitee
or
on Indemnitee’s behalf.
(b) To
the
extent that Indemnitee is a party to (or a participant in) and is successful,
on
the merits or otherwise, in respect of any Proceeding or any claim, issue or
matter therein, the Company shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith. If Indemnitee is successful, on the merits or otherwise, as to one
or
more but less than all claims, issues or matters in any Proceeding, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf in connection with each successfully resolved claim,
issue
4
or
matter
and any claim, issue or matter related to each such successfully resolved claim,
issue or matter. For purposes of this Section
3.01(b)
and
without limitation, the termination of any Proceeding or any claim, issue or
matter in a Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such Proceeding, claim, issue or
matter.
(c) To
the
extent that Indemnitee is, by reason of his Corporate Status, a witness in
any
Proceeding to which Indemnitee is not a party, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.
Section
3.02.
Advancement of Expenses. (a)
The
Company shall advance any Expenses actually and reasonably incurred by
Indemnitee or on his behalf in connection with a Proceeding within 20
days
after receipt by the Company of a written request for advancement of expenses,
which request may be delivered to the Company at such time and from time to
time
as Indemnitee deems appropriate in his sole discretion. Advances shall be made
without regard to Indemnitee’s ability to repay such amounts and without regard
to Indemnitee’s ultimate entitlement to indemnification under this Agreement or
otherwise.
Any such
advances shall be made on an unsecured basis and be interest free.
(b) Indemnitee
agrees that Indemnitee shall reimburse the Company for all amounts advanced
by
the Company pursuant to Section
3.02
if and
only to the extent that it is ultimately determined that Indemnitee is not
entitled to be indemnified by the Company for such Expenses.
Notwithstanding the foregoing, if Indemnitee seeks a judicial adjudication
or an
arbitration pursuant to Section
5.01(a),
Indemnitee shall not be required to reimburse the Company pursuant to this
Section
3.02(b)
until a
final determination (as to which all rights of appeal have been exhausted or
lapsed) has been made.
Section
3.03.
Exclusions. Notwithstanding
any provision of this Agreement to the contrary (including Section
3.01
and
Section
3.02),
the
Company shall not be obligated under this Agreement to indemnify (or advance
expenses) in connection with:
(a) any
claim
made against Indemnitee (i)
for an
accounting of profits made from the purchase and sale (or sale and purchase)
by
Indemnitee of securities of the Company pursuant to Section 16(b) of the
Exchange Act or similar provisions of state statutory law or common law or
(ii)
for
reimbursement to the Company of any bonus or other incentive-based or
equity-based compensation or of any profits realized by Indemnitee from the
sale
of securities of the Company in each case as required under the Exchange Act;
or
5
(b) except
for an action, suit or other proceeding contemplated by Section
7.06(b)
and
except following a Change in Control (as defined below), any action, suit or
other proceeding (or part thereof) initiated by Indemnitee (including any such
action, suit or other proceeding (or part thereof) initiated by Indemnitee
against the Company or its directors, officers, employees, agents or other
indemnitees), unless (i)
the
Board authorized the action, suit or other proceeding (or part thereof) prior
to
its initiation or (ii)
the
Company provides the indemnification, in its sole discretion, pursuant to the
powers vested in the Company under applicable law.
Section
3.04.
Defense Of Claims. The
Company will be entitled to participate in any Proceeding at its own expense.
The
Company shall not settle any Proceeding (in whole or in part) which would impose
any Expense, Liability or limitation on Indemnitee without Indemnitee’s prior
written consent, such consent not to be unreasonably withheld. Indemnitee shall
not settle any Proceeding (in whole or in part) which would impose any Expense,
Liability or limitation on the Company without the Company’s prior written
consent, such consent not to be unreasonably withheld.
ARTICLE
4
PROCEDURES
FOR DETERMINING
ENTITLEMENT TO INDEMNIFICATION
Section
4.01.
Request for Indemnification. (a)
Indemnitee shall notify the Company in writing as soon as reasonably practicable
(i)
after
being served with any summons, citation, subpoena, complaint, indictment,
information or other document relating to any Proceeding or (ii)
if the
Company has not been previously notified, after receipt of written notice of
any
other matter with respect to which Indemnitee intends to seek indemnification
or
advancement of expenses under Section
3.01
or
Section
3.02.
The
omission by Indemnitee to so notify the Company will not relieve the Company
from any liability which it may have to Indemnitee (i) under this Agreement
except and only to the extent the Company can establish that such omission
to
notify resulted in actual material prejudice to the Company or (ii) otherwise
than under this Agreement.
(b) Indemnitee
may thereafter deliver to the Company a written request for indemnification
pursuant to this Agreement at such time and from time to time as Indemnitee
deems appropriate in his sole discretion,
which
request shall also be deemed a request for advancement of expenses under
Section
3.02.
Section
4.02.
Determination of Entitlement. (a)
Except
as otherwise provided pursuant to Section
3.01(b)
and
Section
3.01(c),
a
determination shall be made with respect to Indemnitee’s entitlement thereto in
the specific case (i)
by a
majority vote of the Disinterested Directors or of a committee of Disinterested
6
Directors
designated by a majority vote of the Disinterested Directors (in either case,
even though less than a quorum of the Board) or (ii)
if there
are no Disinterested Director or the Disinterested Directors so direct, by
Independent Counsel. If a Change in Control shall have occurred, such
determination shall, if so requested by Indemnitee in his or her discretion,
be
made by Independent Counsel. Any determination made by Independent Counsel
pursuant to this Section
4.02(a)
shall be
in the form of a written opinion to the Board, a copy of which shall be
delivered to Indemnitee. Indemnitee shall reasonably cooperate with the person
or persons making such determination including providing to such person or
persons upon reasonable advance request any documentation or information which
is not privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including fees and expenses of counsel) incurred by
Indemnitee in so cooperating with the person or persons making such
determination shall be borne by the Company (irrespective of the determination
as to Indemnitee’s entitlement to indemnification), and the Company hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.
As
used
in this Agreement, the following terms shall have the following
meanings:
“Disinterested
Director”
means
a
director of the Company who is not and was not a party to the Proceeding in
respect of which indemnification or advancement of expenses is sought by
Indemnitee.
“Change
in Control”
shall
be deemed to have occurred in any one of the following circumstances occurring
after the date hereof:
(i) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) (other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company) shall have become, without prior
approval of the Company’s Board, the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of voting securities
of
the Company representing 15% or more of the total voting power of the Company’s
then outstanding voting securities;
(ii) the
individuals who on the date hereof constitute the Board (including, for this
purpose, any new director whose election or nomination for election by the
Company’s stockholders was approved by a vote of at least a majority of the
directors then still in office who were directors on the date hereof or whose
election or nomination was so approved) cease for any reason to constitute
at
least a majority of the members of the Board; or
7
(iii) the
stockholders of the Company shall have approved a merger or consolidation of
the
Company with any other entity, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
to
such merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving or
resulting entity) more than 51% of the total voting power of the voting
securities of the surviving or resulting entity outstanding immediately after
such merger or consolidation and
with
the power to elect at least a majority of the board of directors or other
governing body of such surviving or resulting entity;
(iv) the
stockholders of the Company shall have approved a plan of complete liquidation
of the Company or the sale or other disposition of all or substantially all
of
the assets of the Company;
(v) there
shall have occurred an event required to be reported with respect to the Company
in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response
to
any similar item on any similar schedule or form) under the Exchange Act,
regardless of whether the Company is then subject to such reporting
requirement.
“Independent
Counsel”
means
a
law firm, or a member of a law firm, that is experienced in matters of corporate
law and neither currently is, nor in the five years previous to its selection
or
appointment has been, retained to represent (i) the Company or Indemnitee in
any
matter material to either such party (provided that acting as an Independent
Counsel under this Agreement or in a similar capacity with respect to any other
indemnification arrangements between the Company and its present or former
directors shall not be deemed a representation of the Company or Indemnitee)
or
(ii) any other party to the Proceeding giving rise to a claim for
indemnification or advancement of expenses hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee
in
an action to determine Indemnitee’s rights under this Agreement.
(b) If
the
determination is to be made by Independent Counsel, such Independent Counsel
shall be selected as provided in this Section
4.02(b).
If a
Change in Control shall not have occurred, the Independent Counsel shall be
selected by the Board (and shall be reasonably acceptable to Indemnitee), and
the Company shall give written notice to Indemnitee advising him of the identity
of the Independent Counsel so selected. If a Change in Control shall have
occurred, the Independent Counsel shall be selected by Indemnitee and be
reasonably
8
acceptable
to the Company (unless Indemnitee shall request that such selection be made
by
the Board, in which event the preceding sentence shall apply), and Indemnitee
shall give written notice to the Company advising it of the identity of the
Independent Counsel so selected. If, within 20 days after receipt by the Company
of a request for indemnification pursuant to Section
4.01(b),
no
Independent Counsel shall have been selected and not objected to, either the
Company or Indemnitee may petition a court of competent jurisdiction (or, at
Indemnitee’s option pursuant to Section
5.01,
an
arbitration) for resolution of any objection which shall have been made to
the
selection of Independent Counsel and/or for the appointment of another person
as
Independent Counsel, and the person with respect to whom all objections are
so
resolved or the person so appointed shall act as Independent Counsel.
The
Company agrees to pay the reasonable fees and expenses of any Independent
Counsel appointed pursuant to this Section and
to
indemnify such person against any and all expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant
hereto.
Upon
the due commencement of any judicial proceeding pursuant to Section 5.01(a)
of
this Agreement, the Independent Counsel shall be discharged and relieved of
any
further responsibility in such capacity (subject to the applicable standards
of
professional conduct then prevailing).
(c) The
determination with respect to Indemnitee’s entitlement to indemnification shall,
to the extent practicable, be made pursuant to the foregoing provisions of
this
Section 4.02 not later than 30 calendar days after receipt by the Company of
a
written demand on the Company for indemnification (which written demand shall
include such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification). The body or person making the
determination with respect to Indemnitee’s entitlement to indemnification shall
notify Indemnitee of such written determination no later than two business
days
thereafter.
(d) If
it is
determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within 20 days after such determination.
Section
4.03.
Presumptions and Burdens of Proof; Effect of Certain Proceedings.
(a)
In
making any determination as to Indemnitee’s entitlement to indemnification
hereunder, Indemnitee shall be entitled to a presumption that he is entitled
to
indemnification under this Agreement if Indemnitee has submitted a request
for
indemnification in accordance with Section
4.01(b),
and the
Company shall have the burdens of coming forward with evidence and of persuasion
to overcome that presumption.
9
(b) 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 of itself create a presumption that Indemnitee did
not
meet any particular standard of conduct or have any particular belief or that
a
determination has been made that imdemnification is not permitted pursuant
to
this Agreement.
(c) For
purposes of any determination of good faith, Indemnitee shall be deemed to
have
acted in good faith if Indemnitee’s action is based on the records or books of
account of the Company or other Enterprise, as applicable, including financial
statements, or on information supplied to Indemnitee by the officers of such
entity in the course of their duties, or on the advice of legal counsel for
such
entity or on information or records given or reports made to such entity by
an
independent certified public accountant, appraiser or other expert selected
with
reasonable care by such entity. The provisions of this Section
4.03(c)
shall
not be deemed to be exclusive or to limit in any way other circumstances in
which Indemnitee may be deemed or found to have met the applicable standard
of
conduct
to be
indemnified pursuant to this Agreement.
(d) The
knowledge or actions or failure to act of any other director, officer, employee
or agent of the Company or other Enterprise, as applicable, shall not be imputed
to Indemnitee for purposes of determining Indemnitee’s right to indemnification
under this Agreement.
(e) If
a
determination as to Indemnitee’s entitlement to indemnification shall not have
been made pursuant to this Agreement within 60 days after receipt by the Company
of the request therefor or disposition
of the matter that is the subject of the request for indemnification, the
requisite determination of entitlement to indemnification shall be deemed to
have been made in favor of Indemnitee, and Indemnitee shall be entitled to
such
indemnification, absent a misstatement of a material fact in the information
provided by Indemnitee pursuant to Section
4.01(b)
and
Section
4.02(a)
or an
omission of a material fact necessary in order to make the information provided
not misleading; provided
that
such 60-day period may be extended for a reasonable time, not to exceed an
additional 30 days, if the person or persons making the determination in good
faith requires such additional time to obtain or evaluate any documentation
or
information relating thereto.
ARTICLE
5
RIGHTS
TO ADJUDICATION OF ADVERSE DETERMINATION,
ETC.
Section
5.01.
Adjudication
or Arbitration.
(a)
Indemnitee shall be entitled to an adjudication (by a court of competent
jurisdiction or, at Indemnitee’s option,
10
through
an arbitration conducted by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association) of any determination
pursuant to Section
4.02
that
Indemnitee is not entitled to indemnification under this Agreement.
Any such
adjudication shall be conducted in all respects as a de
novo
trial or
arbitration on the merits, and any prior adverse determination shall not be
referred to or introduced into evidence, create a presumption that Indemnitee
is
not entitled to indemnification or advancement of expenses, be a defense or
otherwise adversely affect Indemnitee. In any such judicial proceeding or
arbitration, the provisions of Section
4.03
(including the presumption in favor of Indemnitee and the burdens on the
Company) shall apply.
(b) Indemnitee
shall also be entitled to an adjudication (by a court of competent jurisdiction
or, at Indemnitee’s option, through an arbitration as described above) of any
other disputes under this Agreement.
(c) If
a
determination shall have been made pursuant to Section
4.02
that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant
to
this Section
5.01,
absent
a misstatement of a material fact in the information provided by Indemnitee
pursuant to Section
4.01(b)
and
Section
4.02(a)
or an
omission of a material fact necessary in order to make the information provided
not misleading.
(d) In
connection with any judicial proceeding or arbitration commenced pursuant to
this Section
5.01,
the
Company shall not oppose Indemnitee’s right to seek such adjudication, shall be
precluded from asserting that the procedures and presumptions of this Agreement
are not valid, binding or enforceable and shall stipulate in any such court
or
before any such arbitrator that the Company is bound by all of the provisions
of
this Agreement.
ARTICLE
6
DIRECTORS’
AND OFFICERS’ LIABILITY INSURANCE
Section
6.01.
D&O Liability Insurance. (a) To
the
extent the Company obtains any insurance policies providing liability insurance
(“Liability
Insurance”)
for
directors of the Company in their capacities as directors or in any other
capacities where they are acting for or on behalf of the Company, in respect
of
acts or omissions occurring while serving in any such capacity, Indemnitee
shall
be covered by such insurance policies as in effect from time to time in
accordance with the applicable terms to the maximum extent of the coverage
provided under such policies for any other director.
11
(b) To
the
extent the Company has any such liability insurance policies, the Company shall,
promptly after receiving notice of a Proceeding as to which Indemnitee is a
party or a participant (as a witness or otherwise), give notice of such
Proceeding to the insurers under such policies in accordance with the procedures
set forth in the respective policies and shall thereafter take all necessary
or
desirable actions to cause such insurers to pay, on behalf of Indemnitee, all
amounts payable as a result of such Proceeding in accordance with the terms
of
such policies. The failure or refusal of any such insurer to pay any such amount
shall not affect or impair the obligations of the Company under this
Agreement.
(c) Upon
request by Indemnitee, the Company shall provide to Indemnitee copies of the
Liability Insurance policies as in effect from time to time. The Company shall
promptly notify Indemnitee of any material changes in such insurance coverage.
ARTICLE
7
MISCELLANEOUS
Section
7.01.
Nonexclusivity of Rights. The
rights of indemnification and advancement of expenses provided by this Agreement
shall not be deemed exclusive of any other rights to which Indemnitee may at
any
time be entitled to under applicable law, the Company’s certificate of
incorporation or bylaws, any other agreement, any vote of stockholders or
resolution of directors or otherwise.
No
amendment, alteration or repeal of this Agreement or of any provision hereof
shall limit or restrict any right of Indemnitee under this Agreement in respect
of any action taken or omitted by such Indemnitee in his Corporate Status prior
to such amendment, alteration or repeal. To the extent that a change in Delaware
law, whether by statute or judicial decision, permits greater indemnification
or
advancement of expenses than would be afforded currently under this Agreement,
it is the intent of the parties hereto that Indemnitee shall be entitled under
this Agreement to the greater benefits so afforded by such change. No right
or
remedy herein conferred is intended to be exclusive of any other right or
remedy, and every right and remedy shall be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law
or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder or otherwise shall not prevent the concurrent assertion or employment
of any other right or remedy.
Section
7.02.
Subrogation, etc. (a)
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 Indemnitee,
who
shall execute all papers required and take all actions necessary to secure
such
rights, including execution of such
12
documents
as are necessary to enable the Company to bring suit to enforce such
rights.
(b) The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder (or for which advancement is provided
hereunder) if and to the extent that Indemnitee has otherwise actually received
such payment under any insurance policy or otherwise.
(c) The
Company’s obligation to indemnify or advance expenses hereunder to Indemnitee
who is or was serving at the request of the Company as a director, officer,
employee or agent of any other Enterprise shall be reduced by any amount
Indemnitee has actually received as indemnification or advancement of expenses
from such Enterprise.
Section
7.03.
Contribution. To
the
fullest extent permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to Indemnitee for any reason whatsoever,
the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee or on his behalf, whether for Liabilities and/or Expenses
in connection with a Proceeding or other expenses relating to an indemnifiable
event or transaction under this Agreement, in such proportion as is deemed
fair
and reasonable in light of all of the circumstances of such action, suit or
other proceeding in order to reflect (i)
the
relative benefits received by the Company and Indemnitee as a result of the
event(s) and/or transaction(s) giving rise to such action, suit or other
proceeding; and/or (ii)
the
relative fault of the Company (and its directors, officers, employees and
agents) and Indemnitee in connection with such event(s) and/or
transaction(s).
Section
7.04.
Amendment. This
Agreement may not be modified or amended except by a written instrument executed
by or on behalf of each of the parties hereto.
Section
7.05.
Waivers. The
observance of any term of this Agreement may be waived (either generally or
in a
particular instance and either retroactively or prospectively) only by a writing
signed by the party against which such waiver is to be asserted. Unless
otherwise expressly provided herein, no delay on the part of any party hereto
in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party hereto of any right,
power or privilege hereunder operate as a waiver of any other right, power
or
privilege hereunder nor shall any single or partial exercise of any right,
power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.
13
Section
7.06.
Expenses. (a)
The
Company shall pay all costs and expenses (including fees and expenses of
counsel) incurred by the Company and Indemnitee in connection with the
preparation of this Agreement.
(b) The
Company shall indemnify and hold Indemnitee harmless from any and all costs
and
expenses (including fees and expenses of counsel) actually and reasonably
incurred by Indemnitee or on his behalf in seeking (whether through a judicial
proceeding or arbitration (including any appeal resulting therefrom) or
otherwise) to enforce any rights against the Company for indemnification or
advancement of expenses (whether under this Agreement or otherwise) or to
recover under any liability insurance policy maintained by any person for the
benefit of Indemnitee in connection with the performance of his duties for
or on
behalf of the Company, in each case, whether or not Indemnitee is successful
(in
whole or in part) with respect to his claims. The Company shall pay (or
reimburse Indemnitee for the payment of) any such costs or expenses within
20
days after receipt by the Company of a written request for the payment of such
amounts, which request may be delivered to the Company at such time or from
time
to time as Indemnitee deems appropriate in his sole discretion (whether prior
to
or after final disposition of any such matter). Indemnitee shall have no
obligation to reimburse any amounts paid by the Company pursuant to this
Section
7.06(b).
Section
7.07.
Entire Agreement. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the matters covered herein and supersedes all prior oral or written
understandings or agreements with respect to the matters covered herein.
This Section
7.07
shall
not be construed to limit any other rights Indemnitee may have under the
Company’s certificate of incorporation or bylaws, applicable law or
otherwise.
Section
7.08.
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, that is not itself invalid, illegal or unenforceable) shall
not
in any way be affected or impaired thereby and shall remain enforceable to
the
fullest extent permitted by law; (b)
such
provision or provisions shall be deemed reformed to the extent necessary to
conform to applicable law and to give the 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 unenforceable) shall be construed so as to give effect
to
the intent manifested thereby.
14
Section
7.09.
Notices. All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given (a)
if
delivered by hand or by courier and receipted for by the party to whom said
notice or other communication shall have been directed, (b)
if
mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed or (c)
if sent
by facsimile transmission and fax confirmation is received, on the next business
day following the date on which such facsimile transmission was sent. Addresses
for notice to either party are as shown on the signature page of this Agreement,
or such other address as any party shall have given by written notice to the
other party as provided above.
Section
7.10.
Binding Effect. (a)
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 the Company acknowledges that
Indemnitee is relying upon this Agreement in serving as a director of the
Company.
(b) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors and permitted assigns,
including any direct or indirect successor by purchase, merger, consolidation
or
otherwise to all or substantially all of the business and/or assets of the
Company, heirs, executors, administrators or other successors. The Company
shall
require and cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all or substantially all or a substantial part
of
the business or assets of the Company, by written agreement in the form and
substance reasonably satisfactory to Indemnitee, expressly to assume and agree
to perform this Agreement in the manner and to the same extent that the Company
would be required to perform if no such succession had taken place.
(c) The
indemnification and advancement of expenses provided by this Agreement shall
continue as to a person who has ceased to be a director, officer, employee
or
agent or is deceased and shall inure to the benefit of the heirs, executors,
administrators or other successors of the estate of such person.
Section
7.11.
Governing Law. This
Agreement and the legal relations among the parties hereto shall be governed
by,
and construed and enforced in accordance with, the laws of the State of
Delaware, without regard to its conflict of laws rules.
Section
7.12.
Consent To Jurisdiction. Except
with respect to any arbitration commenced by Indemnitee pursuant to Section
5.01,
the
Company and Indemnitee hereby irrevocably and unconditionally (i)
agree
that any action, suit or other proceeding arising out of or in connection with
this Agreement shall be
15
brought
only in the Delaware Chancery Court and any court to which an appeal may be
taken in such action, suit or other proceeding (the “Delaware
Court”),
and
not in any other state or federal court in the United States of America or
any
court in any other country, (ii)
consent
to submit to the exclusive jurisdiction of the Delaware Court for purposes
of
any action, suit or other proceeding arising out of or in connection with this
Agreement, (iii)
waive
any objection to the laying of venue of any such action, suit or other
proceeding in the Delaware Court, and (iv)
waive,
and agree not to plead or to make, any claim that any such action, suit or
other
proceeding brought in the Delaware Court has been brought in an improper or
inconvenient forum.
Section
7.13.
Headings. The
Article and Section headings in this Agreement are for convenience of reference
only, and shall not be deemed to alter or affect the meaning or interpretation
of any provisions hereof.
Section
7.14.
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. Only one such counterpart signed by
the
party against whom enforceability is sought needs to be produced to evidence
the
existence of this Agreement.
Section
7.15.
Use
of Certain Terms. As
used
in this Agreement, the words “herein,” “hereof,” and “hereunder” and other words
of similar import refer to this Agreement as a whole and not to any particular
paragraph, subparagraph, section, subsection, or other subdivision. Whenever
the
context may require, any pronoun used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns, pronouns and verbs shall include the plural and vice versa.
16
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered to be
effective as of the date first above written.
|
Ford
Motor
Company
|
||
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
Address: One
American Road
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
Attention:
Secretary
With a copy to:
Address:
One American Road
Facsimile:
313-248-7450
Attention:
General Counsel
|
||
|
|
||
|
[INDEMNITEE]
|
|
|
|
Address:
Facsimile:
With a copy to:
Address:
Facsimile:
Attention:
|