Exhibit 10.49
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement"), dated as of _________
___, 2002, between Fair, ▇▇▇▇▇ and Company, Incorporated, a Delaware corporation
(the "Corporation"), and _____________ ("Indemnitee"),
W I T N E S S E T H:
WHEREAS, Indemnitee is either a member of the board of directors of the
Corporation (the "Board of Directors") or an officer of the Corporation, or
both, and in such capacity or capacities, or otherwise as an Agent (as
hereinafter defined) of the Corporation, is performing a valuable service for
the Corporation; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take
on additional service for or on behalf of the Corporation on the condition that
he or she 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 and
advancement of expenses provided for herein:
NOW, THEREFORE, in consideration of the premises and the covenants in
this Agreement, and of Indemnitee continuing to serve the Corporation as an
Agent and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Services by Indemnitee. Indemnitee agrees to serve (a) as a director
or an officer of the Corporation, or both, so long as Indemnitee is duly
appointed or elected and qualified in accordance with the applicable provisions
of the Restated Certificate of Incorporation and By-Laws of the Corporation, and
until such time as Indemnitee resigns or fails to stand for election or is
removed from Indemnitee's position, or (b) otherwise as an Agent of the
Corporation. Indemnitee may from time to time also perform other services at the
request or for the convenience of, or otherwise benefiting the Corporation.
Indemnitee may at any time and for any reason resign from such position (subject
to any other contractual obligation or other obligation imposed by operation of
law), in which event the Indemnitee shall have no obligation under this
Agreement to continue to serve in any such position and the Corporation shall
have no obligation under this Agreement to continue Indemnitee in any such
position. The Corporation acknowledges that the execution of this Agreement by
Indemnitee represents Indemnitee's written demand for an indemnification
contract as contemplated by Section 6(b) of Article Third of this Corporation's
Restated Certificate of Incorporation.
2. Indemnification. Subject to the terms and conditions of this
Agreement, the Corporation hereby agrees to indemnify Indemnitee as follows:
The Corporation shall, with respect to any Proceeding (as hereinafter
defined) associated with Indemnitee's being an Agent (as hereinafter defined),
indemnify Indemnitee to the fullest extent permitted by applicable law and the
Restated Certificate of Incorporation of the Corporation in effect on the date
hereof or as such law or Restated Certificate of Incorporation may from time
to time be amended (but, in the case of any such amendment, only to the extent
such amendment permits the Corporation to provide broader indemnification rights
than the law or Restated Certificate of Incorporation permitted the Corporation
to provide before such amendment). The right to indemnification conferred herein
and in the Restated Certificate of Incorporation shall be presumed to have been
relied upon by Indemnitee in serving or continuing to serve the Corporation as
an Agent and shall be enforceable as a contract right. Without in any way
limiting or diminishing the scope of the indemnification provided by this
Section 2, the Corporation agrees to indemnify Indemnitee to the fullest extent
permitted by law if and wherever Indemnitee is or was a party to, or is
threatened to be made a party to, any Proceeding, including without limitation
any Proceeding brought by or in the right of the Corporation, by reason of the
fact that Indemnitee is or was an Agent or by reason of anything done or not
done by Indemnitee in such capacity as an Agent, against all Expenses (as
hereinafter defined) and Liabilities (as hereinafter defined) actually and
reasonably incurred by Indemnitee or on his or her behalf in connection with the
investigation, defense, settlement or appeal of such Proceeding. In addition to,
and not as a limitation of, the foregoing, the rights of indemnification of
Indemnitee provided under this Agreement shall include those rights set forth in
Sections 3 and 8 below. Notwithstanding the foregoing, the Corporation shall not
be required to indemnify Indemnitee in connection with a Proceeding commenced by
Indemnitee unless (i) such Proceeding was commenced by Indemnitee to enforce
Indemnitee's rights under this Agreement or (ii) the commencement of such
Proceeding was authorized by the Board of Directors.
3. Advancement of Expenses; Letter of Credit.
(a) Advancement of Expenses. The Corporation agrees with Indemnitee that
all reasonable Expenses incurred by or on behalf of Indemnitee (including costs
of enforcement of this Agreement) in connection with a Proceeding shall be
advanced from time to time by the Corporation to Indemnitee within thirty (30)
days after the receipt by the Corporation of a written request by or on behalf
of Indemnitee for an advance of such Expenses, whether prior to, during or after
final disposition of a Proceeding (including without limitation any Proceeding
brought by or in the right of the Corporation), except to the extent that there
has been a Final Adverse Determination (as hereinafter defined) that Indemnitee
is not entitled to be indemnified for such Expenses. A written request by an
Indemnitee for an advancement of any and all Expenses under this paragraph shall
contain reasonable detail of the Expenses incurred by Indemnitee for which the
Indemnitee is seeking an advance. In the event that such written request shall
be accompanied by an affidavit of counsel to Indemnitee to the effect that such
counsel has reviewed such Expenses and that such Expenses are reasonable in such
counsel's view, then such expenses shall be deemed reasonable in the absence of
clear and convincing evidence to the contrary. By execution of this Agreement,
Indemnitee shall be deemed to have made whatever undertaking as may be required
by law at the time of any advancement of Expenses with respect to repayment to
the Corporation of such advanced Expenses. In the event that the Corporation
shall breach its obligation to advance Expenses under this Section 3, the
parties hereto agree that Indemnitee's remedies available at law would not be
adequate and that Indemnitee would be entitled to the remedies of specific
performance and injunctive relief to enforce such obligation of the Corporation.
The Corporation acknowledges that it has agreed to advance Expenses hereunder in
order to promote the business interests of the Corporation and the Corporation
agrees with Indemnitee that it will not fail to comply with its obligation to
advance Expenses to Indemnitee as required under this Agreement on the ground
that such advancement violates or would violate Section 13(k) of the
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Securities Exchange Act of 1934, as amended, unless the Corporation has received
an affirmative and unqualified written opinion of Independent Legal Counsel to
the effect that such an advance of Expenses would result in a violation of said
Section 13(k).
(b) Witness Expenses in Certain Proceedings. Notwithstanding any other
provision of this Agreement to the contrary, to the extent that Indemnitee was
or is, by reason of the fact that the Indemnitee is or was an Agent, a witness
or other non-party participant in any Proceeding to which the Indemnitee is not
made a party, the Corporation shall indemnify the Indemnitee against all
Expenses actually and reasonably incurred by the Indemnitee or on the
Indemnitee's behalf solely in connection with the Indemnitee's being a witness
or other non-party participant in such Proceeding, and in preparing to be a
witness or such other non-party participant in such Proceeding without the need
for any determination with respect to the Indemnitee's conduct pursuant to
Section 5 of this Agreement.
(c) Letter of Credit. In order to secure the obligations of the
Corporation to indemnify and advance Expenses to Indemnitee pursuant to this
Agreement, the Corporation agrees that it shall obtain and have in force at the
time of any Change in Control (as hereinafter defined) an irrevocable standby
letter of credit naming Indemnitee as the sole beneficiary (the "Letter of
Credit"). The Letter of Credit shall be in an appropriate amount not less than
one million dollars ($1,000,000), shall be issued by a commercial bank
headquartered in the United States having assets in excess of $20 billion and
capital according to its most recent published reports equal to or greater than
the then applicable minimum capital standards promulgated by such bank's primary
federal regulator and shall contain terms and conditions reasonably acceptable
to Indemnitee. The Letter of Credit shall provide that Indemnitee may from time
to time draw certain amounts thereunder, upon written certification by
Indemnitee to the issuer of the Letter of Credit that (i) Indemnitee has made
written request upon the Corporation for an amount not less than the amount
Indemnitee is drawing under the Letter of Credit and that the Corporation has
failed or refused to provide Indemnitee with such amount in full within thirty
(30) days after receipt of the request, and (ii) Indemnitee believes that he or
she is entitled under the terms of this Agreement to the amount that Indemnitee
is drawing upon under the Letter of Credit. The issuance of the Letter of Credit
shall not be an exclusive remedy, nor shall it in any way diminish the
Corporation's obligations to advance Expenses and to indemnify Indemnitee
against Expenses and Liabilities to the full extent required by this Agreement.
(d) Term of Letter of Credit. Once the Corporation has obtained the
Letter of Credit, the Corporation (or its successor) shall maintain in effect
and renew the Letter of Credit or a substitute letter of credit meeting the
criteria of Section 3(c) during the term of this Agreement. The Letter of Credit
shall have an initial term of five (5) years, be renewed for successive
five-year terms, and always have at least one (1) year of its term remaining.
4. Presumptions and Effect of Certain Proceedings. Upon making a request
for indemnification, Indemnitee shall be presumed to be entitled to
indemnification under this Agreement and the Corporation shall have the burden
of proof to overcome that presumption in reaching any contrary determination.
The termination of any Proceeding by judgment, order, settlement (whether with
or without court approval), arbitration award or conviction, or upon a plea of
nolo contendere or its equivalent shall not affect this presumption or, except
as determined by a judgment or other final adjudication adverse to Indemnitee,
establish a presumption with
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regard to any factual matter relevant to determining Indemnitee's rights to
indemnification hereunder. If the forum so empowered to make a determination of
Indemnitee's entitlement to indemnification pursuant to Section 5 hereof shall
have failed to make the requested determination within sixty (60) days after any
judgment, order, settlement, dismissal, arbitration award, conviction,
acceptance of a plea of nolo contendere or its equivalent, or other disposition
or partial disposition of any Proceeding or any other event that could enable
the Corporation to determine Indemnitee's entitlement to indemnification, the
requisite determination that Indemnitee is entitled to indemnification shall be
deemed to have been made.
5. Procedure for Determination of Entitlement to Indemnification.
(a) Whenever Indemnitee believes that Indemnitee is entitled to
indemnification pursuant to this Agreement, Indemnitee shall submit a written
request for indemnification to the Corporation. The Corporation's obligation to
comply with such request for indemnification is subject to the condition that
the matter of the Indemnitee's entitlement to such indemnification under
applicable law has been heard before a forum referred to in Section 5(b) below
and such forum shall not have determined that the Indemnitee did not meet the
required standard of conduct under applicable law; provided, however, that such
condition shall not be applicable (and no such hearing or determination shall be
required) (i) where indemnification is mandatory under applicable law, (ii) with
respect to any request for indemnification by an Indemnitee under Section 3(b)
or (iii) in any case in which such determination is, by the express terms of
this Agreement (including but not limited to Section 4 hereof), deemed to have
been made or is otherwise not required to be made under this Agreement, and in
each such case payment of indemnification to which an Indemnitee is entitled
under this Agreement shall be made within thirty (30) days after such request is
received by the Corporation. Any request for indemnification shall include
sufficient documentation or information reasonably available to Indemnitee for
the determination of entitlement to indemnification. In any event, Indemnitee
shall submit Indemnitee's claim for indemnification within a reasonable time,
not to exceed five (5) years after any judgment, order, settlement, dismissal,
arbitration award, conviction, acceptance of a plea of nolo contendere or its
equivalent, or final determination, whichever is the later date for which
Indemnitee requests indemnification. The Secretary or other appropriate officer
of the Corporation shall, promptly upon receipt of Indemnitee's request for
indemnification, advise the Board of Directors in writing that Indemnitee has
made such request. Determination of Indemnitee's entitlement to indemnification
shall be made not later than sixty (60) days after the Corporation's receipt of
Indemnitee's written request for such indemnification, provided that any request
for indemnification for Liabilities, other than amounts paid in settlement,
shall have been made after a determination thereof in a Proceeding.
(b) The Indemnitee shall be entitled to select the forum in which the
Indemnitee's entitlement to indemnification will be heard, which selection shall
be included in the written request for indemnification referred to in Section
5(a), except that the Indemnitee may not choose to have the stockholders of the
Corporation make such determination without the consent of the Board of
Directors. Subject to the foregoing, the forum shall be any one of the
following:
(i) the stockholders of the Corporation (with such approval being
sufficient if it is given by stockholders holding a majority of the
shares present at a meeting of the stockholders at which a quorum is
present);
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(ii) a majority vote of Disinterested Directors (as hereinafter
defined), even though less than a quorum;
(iii) Independent Legal Counsel, whose determination shall be
made in a written opinion; or
(iv) a panel of three arbitrators, one selected by the
Corporation, another by Indemnitee and the third by the first two
arbitrators; or if for any reason three arbitrators are not selected
within thirty (30) days after the appointment of the first arbitrator,
then selection of additional arbitrators shall be made by the American
Arbitration Association. If any arbitrator resigns or is unable to serve
in such capacity for any reason, the American Arbitration Association
shall select such arbitrator's replacement. The arbitration shall be
conducted pursuant to the commercial arbitration rules of the American
Arbitration Association now in effect.
(c) Payment of indemnification for Liabilities and Expenses as to which
Indemnitee is entitled determined pursuant to Section 5 or deemed determined
pursuant to Section 4 shall be made as promptly as practicable after such
determination or deemed determination and in any event within thirty (30) days
thereafter.
6. Specific Limitations on Indemnification. Notwithstanding anything in
this Agreement to the contrary, the Corporation shall not be obligated under
this Agreement to make any payment to Indemnitee with respect to any Proceeding:
(a) To the extent that such payment is actually made to Indemnitee under
any insurance policy, or is made to Indemnitee by the Corporation or an
affiliate otherwise than pursuant to this Agreement. Notwithstanding the
availability of such insurance, Indemnitee also may claim indemnification from
the Corporation pursuant to this Agreement by assigning to the Corporation any
claims under such insurance to the extent Indemnitee is paid by the Corporation;
(b) Provided there has been no Change in Control, for Liabilities in
connection with Proceedings settled by the Indemnitee without the Corporation's
consent, which consent, however, shall not be unreasonably withheld or delayed;
(c) For an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Corporation within the meaning of Section 16(b)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
similar provisions of any state statutory or common law; or
(d) To the extent it would be otherwise prohibited by law, if so
established by a judgment or other final adjudication adverse to Indemnitee.
7. Fees and Expenses of Forum. The Corporation agrees to pay all
reasonable fees and expenses associated with the determination of the
Indemnitee's entitlement to indemnification in accordance with Section 5(b),
including, without limitation, fees and expenses in connection with a meeting of
the stockholders of the Corporation and the reasonable fees and expenses of
Disinterested Directors, Independent Legal Counsel or a panel of three
arbitrators should such Disinterested Directors, Independent Legal Counsel or
such arbitrators be retained to make a
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determination of Indemnitee's entitlement to indemnification pursuant to Section
5(b) of this Agreement, and the Corporation shall fully indemnify such
Disinterested Directors, Independent Legal Counsel or arbitrators against any
and all expenses and losses incurred by any of them arising out of or relating
to this Agreement or their engagement pursuant hereto.
8. Remedies of Indemnitee.
(a) In the event that (i) a determination pursuant to Section 5 hereof
is made that Indemnitee is not entitled to indemnification, (ii) advances of
Expenses are not timely made pursuant to this Agreement, (iii) payment of
indemnification to the Indemnitee has not been timely made pursuant to this
Agreement, or (iv) Indemnitee otherwise seeks enforcement of this Agreement,
then Indemnitee shall be entitled to a final adjudication in the Court of
Chancery of the State of Delaware of the Indemnitee's rights and remedies under
this Agreement (which remedies may include, without limitation, an order
compelling enforcement of the Corporation's obligations under this Agreement
through the remedy of specific performance or injunctive relief). Alternatively,
unless (i) the determination of the Indemnitee's entitlement to indemnification
was made by a panel of arbitrators pursuant to Section 5(b)(iv) hereof, or (ii)
court approval is required by law for the indemnification sought by Indemnitee,
Indemnitee at Indemnitee's option may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the commercial arbitration rules of
the American Arbitration Association now in effect, which award is to be made
within ninety (90) days following the filing of the demand for arbitration. The
Corporation shall not oppose Indemnitee's right to seek any such adjudication or
arbitration award. In any such proceeding or arbitration Indemnitee shall be
presumed to be entitled to indemnification and advancement of Expenses under
this Agreement and the Corporation shall have the burden of proof to overcome
that presumption.
(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 5
hereof, the decision in the judicial proceeding or arbitration provided in
paragraph (a) of this Section 8 shall be made de novo on the merits and
Indemnitee shall not be prejudiced by reason of such prior determination that
Indemnitee is not entitled to indemnification.
(c) If a determination that Indemnitee is entitled to indemnification
has been made pursuant to Section 5 hereof, or is deemed to have been made
pursuant to Section 4 hereof or otherwise pursuant to the terms of this
Agreement, then the Corporation shall be bound by such determination or deemed
determination in the absence of an intentional misrepresentation or omission of
a material fact by Indemnitee in connection with such determination.
(d) The Corporation shall be precluded from asserting that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable. The Corporation shall stipulate in any such court or before any
such arbitrator that the Corporation is bound by all the provisions of this
Agreement and is precluded from making any assertion to the contrary.
(e) Expenses reasonably incurred by Indemnitee in connection with
Indemnitee's request for indemnification under this Agreement, seeking
enforcement of this Agreement or to recover damages for breach of this Agreement
shall be borne by the Corporation when and as
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incurred by Indemnitee irrespective of any Final Adverse Determination that
Indemnitee is not entitled to indemnification.
9. Contribution. If the Indemnitee is not entitled to the
indemnification provided in Section 2 for any reason other than the statutory
limitations set forth in the Delaware General Corporation Law, then the
Corporation, in lieu of indemnifying Indemnitee, shall contribute to the amount
of Expenses and Liabilities actually and reasonably incurred and paid or to be
paid by the Indemnitee in such proportion as is deemed fair and reasonable in
light of all the circumstances of the relevant Proceeding to reflect (i) the
relative benefits received by the Corporation on the one hand and the Indemnitee
on the other hand from the transaction from which such Proceeding arose and (ii)
the relative fault of the Corporation on the one hand and of the Indemnitee on
the other hand in connection with the events which resulted in such Expenses and
Liabilities, as well as any other relevant equitable considerations. The
relative fault of the Corporation on the one hand and of the Indemnitee on the
other hand shall be determined by reference to, among other things, the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent the circumstances resulting in such Expenses and Liabilities. The
Corporation agrees that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation or any other
method of allocation which does not take account of the foregoing equitable
considerations.
10. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of any Expenses or Liabilities of any type whatsoever, but the
Indemnitee is not entitled, however, to indemnification for the total amount
thereof, then the Corporation shall nevertheless indemnify the Indemnitee for
the portion thereof to which the Indemnitee is entitled.
11. Maintenance of Insurance; Notice.
(a) The Corporation represents that it presently has in place certain
directors' and officers' liability insurance policies covering its directors and
officers. Subject only to the provisions within this Section 11, the Corporation
agrees that so long as Indemnitee shall have consented to serve or shall
continue to serve as a director or officer of the Corporation, or both, or as an
Agent of the Corporation, and thereafter so long as Indemnitee shall be subject
to any possible Proceeding (such periods being hereinafter sometimes referred to
as the "Indemnification Period"), the Corporation will use all reasonable
efforts to maintain in effect for the benefit of Indemnitee one or more valid,
binding and enforceable policies of directors' and officers' liability insurance
from established and reputable insurers, providing, in all respects, coverage
both in scope and amount which is no less favorable than that presently
provided. Notwithstanding the foregoing, the Corporation shall not be required
to maintain said policies of directors' and officers' liability insurance during
any time period if during such period such insurance is not reasonably available
or if it is determined in good faith by the then Board of Directors either that:
(i) The premium cost of maintaining such insurance is
substantially disproportionate to the amount of coverage provided
thereunder; or
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(ii) The protection provided by such insurance is so limited by
exclusions, deductions or otherwise that there is insufficient benefit
to warrant the cost of maintaining such insurance.
Anything in this Agreement to the contrary notwithstanding, to the
extent that and for so long as the Corporation shall choose to continue to
maintain any policies of directors' and officers' liability insurance during the
Indemnification Period, the Corporation shall maintain similar and equivalent
insurance for the benefit of Indemnitee during the Indemnification Period
(unless such insurance shall be less favorable to Indemnitee than the
Corporation's existing policies).
(b) If, at the time of the receipt of a written request for
indemnification pursuant to Section 5(a), the Corporation has directors' and
officers' liability insurance in effect, the Corporation shall give prompt
notice of the commencement of the Proceeding to which such indemnification
request relates to the insurer or insurers providing such directors' and
officers' liability insurance in accordance with the procedures set forth in the
respective directors' and officers' liability insurance policies. The
Corporation shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of the Indemnitee, all amounts payable by such
insurers as a result of such proceeding in accordance with the terms of such
directors' and officers' liability insurance policies.
12. 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.
13. Subrogation. In the event of a payment to the Indemnitee under this
Agreement, the Corporation shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee with respect to the circumstances
giving rise to such payment, and such Indemnitee shall execute all papers
reasonably required and shall do everything that may be necessary to secure any
such subrogation rights, including the execution of such documents reasonably
necessary to enable the Corporation effectively to bring suit to enforce such
rights.
14. 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 so to notify the Corporation will not relieve it from any liability
that 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. Notwithstanding the foregoing, such omission will not relieve the
Corporation from any liability that it may have to Indemnitee otherwise than
under this Agreement. 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
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(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 without the Indemnitee's
written consent if there has been a Change in Control or 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 the Corporation's 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 Indemnitee's
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;
(ii) Indemnitee shall have reasonably concluded that counsel
engaged by the Corporation may not adequately represent Indemnitee due
to, among other things, actual or potential differing interests; or
(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 that
would impose any penalty or limitation on Indemnitee without Indemnitee's
written consent; provided, however, that Indemnitee will not unreasonably
withhold his or her consent to any proposed settlement.
15. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
(a) If to Indemnitee, to:
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(b) If to the Corporation, to:
Fair, ▇▇▇▇▇ and Company, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
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or to such other address as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
16. Nonexclusivity. The rights of Indemnitee hereunder shall not be
deemed exclusive of any other rights to which Indemnitee may be entitled under
applicable law, the Corporation's Restated Certificate of Incorporation or
By-laws, or any agreements, vote of stockholders, resolution of the Board of
Directors or otherwise, and to the extent that during the Indemnification Period
the rights of the then existing directors and officers are more favorable to
such directors or officers than the rights currently provided to Indemnitee
thereunder or under this Agreement, Indemnitee shall be entitled to the full
benefits of such more favorable rights.
17. Certain Definitions.
(a) "Agent" shall mean any person who: (i) is or was a director or
officer of the Corporation or a Subsidiary (as defined below) of the Corporation
or serves or served as a member of any committee of the board of directors of
the Corporation of any Subsidiary; (ii) is or was serving at the request of, for
the convenience of, or to represent the interest of, the Corporation or a
Subsidiary of the Corporation as a director or officer of, or member of a
committee of the board of directors of (or comparable management body of),
another foreign or domestic corporation, partnership, joint venture, limited
liability company, trust or other enterprise or an affiliate of the Corporation;
or (iii) is or was a director or officer (or member of a committee of the board
of directors) of a foreign or domestic corporation which was a predecessor
corporation of the Corporation or a Subsidiary of the Corporation, or is or was
a director or officer (or member of a committee of the board of directors) of
another enterprise or affiliate of the Corporation at the request of, for the
convenience of, or to represent the interests of, such predecessor corporation.
The term "ENTERPRISE" includes, without limitation, any employee benefit plan of
the Corporation, its Subsidiaries, affiliates and predecessor corporations. The
term "SUBSIDIARY" means any corporation of which more than fifty percent (50%)
of the outstanding voting securities is owned directly or indirectly by (i) the
Corporation, (ii) the Corporation and one or more of its Subsidiaries or (iii)
one or more of the Corporation's Subsidiaries.
(b) "Change in Control" shall mean the occurrence after the date of this
Agreement of any of the following:
(i) Both (A) any "person" (as defined below) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Corporation representing at
least 15% of the total voting power represented by the Corporation's
then outstanding voting securities; and (B) the beneficial ownership by
such person of securities representing such percentage has not been
approved by a majority of the "continuing directors" (as defined below);
(ii) Any "person" is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Corporation representing at least 50% of the total
voting power represented by the Corporation's then outstanding voting
securities;
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(iii) A change in the composition of the Board of Directors
occurs, as a result of which fewer than two-thirds of the incumbent
directors are directors who either (A) had been directors of the
Corporation on the "look-back date" (as defined below) (the "Original
Directors") or (B) were elected, or nominated for election, to the Board
of Directors with the affirmative votes of at least a majority in the
aggregate of the Original Directors who were still in office at the time
of the election or nomination and directors whose election or nomination
was previously so approved (the "continuing directors");
(iv) The stockholders of the Corporation approve a merger or
consolidation of the Corporation with any other corporation, if such
merger or consolidation would result in the voting securities of the
Corporation outstanding immediately prior thereto representing (either
by remaining outstanding or by being converted into voting securities of
the surviving entity) 50% or less of the total voting power represented
by the voting securities of the Corporation or such surviving entity
outstanding immediately after such merger or consolidation; or
(v) The stockholders of the Corporation approve (A) a plan of
complete liquidation of the Corporation or (B) an agreement for the sale
or disposition by the Corporation of all or substantially all of the
Corporation's assets.
For purposes of Subsection (i) above, the term "person" shall have the
same meaning as when used in Sections 13(d) and 14(d) of the Exchange Act, but
shall exclude (x) a trustee or other fiduciary holding securities under an
employee benefit plan of the Corporation or of a parent or subsidiary of the
Corporation or (y) a corporation owned directly or indirectly by the
stockholders of the Corporation in substantially the same proportions as their
ownership of the common stock of the Corporation.
For purposes of Subsection (iii) above, the term "look-back date" shall
mean the later of (x) the date hereof or (y) the date 24 months prior to the
date of the event that may constitute a "Change in Control."
Any other provision of this Section 17(b) notwithstanding, the term
"Change in Control" shall not include a transaction, if undertaken at the
election of the Corporation, the result of which is to sell all or substantially
all of the assets of the Corporation to another corporation (the "surviving
corporation"); provided that the surviving corporation is owned directly or
indirectly by the stockholders of the Corporation immediately following such
transaction in substantially the same proportions as their ownership of the
Corporation's common stock immediately preceding such transaction; and provided,
further, that the surviving corporation expressly assumes this Agreement.
(c) "Disinterested Director" shall mean a director of the Corporation
who is not or was not a party to or otherwise involved in the Proceeding in
respect of which indemnification is being sought by Indemnitee.
(d) "Expenses" shall include 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, all
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other disbursements or out-of-pocket expenses and reasonable compensation for
time spent by Indemnitee for which Indemnitee is otherwise not compensated by
the Corporation or any third party) actually and reasonably incurred in
connection with either the investigation, defense, settlement or appeal of a
Proceeding or establishing or enforcing a right to indemnification under this
Agreement, any similar agreement, the Restated Certificate of Incorporation or
By-laws of the Corporation or any Subsidiary, applicable law or otherwise;
provided, however, that "Expenses" shall not include any Liabilities.
(e) "Final Adverse Determination" shall mean that a determination that
Indemnitee is not entitled to indemnification shall have been made pursuant to
Section 5 hereof and either (i) a final adjudication in the Court of Chancery of
the State of Delaware or decision of an arbitrator pursuant to Section 8(a)
hereof shall have denied Indemnitee's right to indemnification hereunder, or
(ii) Indemnitee shall have failed to file a complaint in a Delaware court or
seek an arbitrator's award pursuant to Section 8(a) for a period of one hundred
eighty (180) days after the determination made pursuant to Section 5 hereof.
(f) "Independent Legal Counsel" shall mean a law firm or a member of a
firm selected by the Corporation and approved by Indemnitee (which approval
shall not be unreasonably withheld) or, if there has been a Change in Control,
selected by Indemnitee and approved by the Corporation (which approval shall not
be unreasonably withheld), that neither is presently nor in the past five (5)
years has been retained to represent: (i) the Corporation or any of its
Subsidiaries or affiliates, or Indemnitee or any corporation of which Indemnitee
was or is a director, officer, employee or agent, or any subsidiary or affiliate
of such a corporation, in any material matter, or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term "Independent Legal 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 Corporation or
Indemnitee in an action to determine Indemnitee's right to indemnification under
this Agreement.
(g) "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.
(h) "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, that is
associated with Indemnitee's being an Agent of the Corporation.
18. 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
substantially all of the business or assets of the Corporation), spouses, heirs
and personal and legal representatives. This Agreement shall continue in effect
during the Indemnification Period, regardless of whether Indemnitee continues to
serve as an Agent.
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19. 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.
20. Governing Law. 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 the State of Delaware, without regard to conflict of laws rules.
21. Consent to Jurisdiction. The Corporation and Indemnitee each
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding that arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Delaware.
22. 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 (a) as specifically referred to in Section 16 hereof or
(b) [identify any applicable agreements].
23. 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.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed by a duly authorized officer and Indemnitee has executed this Agreement
as of the date first above written.
FAIR, ▇▇▇▇▇ AND COMPANY, INCORPORATED
By
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INDEMNITEE
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