Exhbit 10.11
FORM OF
THERMO VISION CORPORATION
INDEMNIFICATION AGREEMENT
-------------------------
This Agreement, made and entered into this ** day of **,
1997, ("Agreement"), by and between Thermo Vision Corporation, a
Delaware corporation (the "Company"), and *** ("Indemnitee"):
WHEREAS, highly competent persons are becoming more
reluctant to serve publicly-held corporations as directors or in
other capacities unless they are provided with adequate
protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out
of their service to, and activities on behalf of, the
corporation;
WHEREAS, uncertainties relating to the continued
availability of adequate directors and officers liability
insurance ("D&O Insurance") and the uncertainties relating to
indemnification have increased the difficulty of attracting and
retaining such persons;
WHEREAS, the Board of Directors of the Company (the "Board")
has determined that the 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 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, Indemnitee is willing to serve, continue to serve
and/or to take on additional service for or on behalf of the
Company on the condition that he be so indemnified and that such
indemnification be so guaranteed.
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, the Company and Indemnitee do hereby
covenant and agree as follows:
1. Services by Indemnitee. Indemnitee agrees to serve or
continue to serve as a Director of the Company. This agreement
shall not impose any obligation on the Indemnitee or the Company
to continue the Indemnitee's position with the Company beyond any
period otherwise applicable.
PAGE
2
2. Indemnity. The Company shall indemnify, and shall
advance Expenses (as hereinafter defined) to, Indemnitee as
provided in this Agreement and to the fullest extent permitted by
law.
3. General. Indemnitee shall be entitled to the rights of
indemnification provided in this Section 3 if, by reason of his
Corporate Status (as hereinafter defined), he is, or is
threatened to be made, a party to any threatened, pending, or
completed action, suit, arbitration, alternative dispute
resolution mechanism, investigation, administrative hearing or
other proceeding whether civil, criminal, administrative or
investigative. Pursuant to this Section 3, Indemnitee shall be
indemnified against Expenses, judgments, penalties, fines and
amounts paid in settlement incurred by him or on his behalf in
connection with such action, suit, arbitration, alternative
dispute resolution mechanism, investigation, administrative
hearing or other proceeding whether civil, criminal,
administrative or investigative or any claim, issue or matter
therein, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful.
4. Proceedings by or in the Right of the Company. In the
case of any action or suit by or in the right of the Company,
indemnification shall be made only (i) for Expenses or (ii) in
respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged to be liable to the Company if such
indemnification is permitted by Delaware law; provided, however,
that indemnification against Expenses shall nevertheless be made
by the Company in such event to the extent that the Court of
Chancery of the State of Delaware, or the court in which such
action or suit shall have been brought or is pending, shall
determine to be proper despite the adjudication of liability but
in view of all the circumstances of the case.
5. Indemnification for Expenses of a Party who is Wholly
or Partly Successful. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of
his Corporate Status, a party to and is successful, on the merits
or otherwise, in any action, suit, arbitration, alternative
dispute resolution mechanism, investigation, administrative
hearing or other proceeding whether civil, criminal,
administrative or investigative, he shall be indemnified against
all Expenses incurred by him or on his behalf in connection
therewith. If Indemnitee is not wholly successful but is
successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such action, suit,
arbitration, alternative dispute resolution mechanism,
investigation, administrative hearing or other proceeding whether
civil, criminal, administrative or investigative, the Company
shall indemnify Indemnitee against all Expenses incurred by him
or on his behalf in connection with each successfully resolved
PAGE
3
claim, issue or matter. For purposes of this Section and without
limitation, the termination of any claim, issue or matter by
dismissal, or withdrawal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or
matter.
6. Advance of Expenses. The Company shall advance all
Expenses incurred by or on behalf of Indemnitee in connection
with any action, suit, arbitration, alternative dispute
resolution mechanism, investigation, administrative hearing or
any other proceeding whether civil, criminal, administrative or
investigative within twenty (20) days after the receipt by the
Company of a statement or statements from Indemnitee requesting
such advance or advances from time to time, whether prior to or
after final disposition of such action, suit, arbitration,
alternative dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative. Such statement or
statements shall reasonably evidence the Expenses incurred by
Indemnitee and shall include or be preceded or accompanied by an
undertaking by or on behalf of Indemnitee to repay any Expenses
advanced if it shall ultimately be determined that Indemnitee is
not entitled to be indemnified against such Expenses, which
undertaking shall be accepted by or on behalf of the Company
without reference to the financial ability of Indemnitee to make
repayment.
7. Procedure for Determination of Entitlement to
Indemnification.
(a) To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request,
including therein or therewith 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 Secretary of the Company shall,
promptly upon receipt of such a request for indemnification,
advise the Board in writing that Indemnitee has requested
indemnification.
(b) Upon written request by Indemnitee for indemnification
pursuant to Section 7(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto
shall be made in the specific case: (i) if a Change in Control
(as hereinafter defined) shall have occurred, by Independent
Counsel (as hereinafter defined) in a written opinion to the
Board, a copy of which shall be delivered to Indemnitee (unless
Indemnitee shall request that such determination be made by the
Board or the Stockholders, in which case the determination shall
be made in the manner provided below in clauses (ii) or (iii));
(ii) if a Change of Control shall not have occurred, (A) by the
Board by a majority vote of a quorum consisting of Disinterested
Directors (as hereinafter defined), or (B) if a quorum of the
Board consisting of Disinterested Directors is not obtainable or,
PAGE
4
even if obtainable, such quorum of Disinterested Directors so
directs, by Independent Counsel in a written opinion to the
Board, a copy of which shall be delivered to Indemnitee or (C) by
the Stockholders of the Company; or (iii) as provided in Section
8(b) of this Agreement; and, if it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within ten (10) days after such determination.
Indemnitee shall cooperate with the person, persons or entity
making such determination with respect to Indemnitee's
entitlement to indemnification, including providing to such
person, persons or entity upon reasonable advance request any
documentation or information that is not privileged or otherwise
protected from disclosure and that is reasonably available to
Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including attorneys' fees and disbursements)
incurred by Indemnitee in so cooperating 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.
(c) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 7(b) of this Agreement, the Independent Counsel shall be
selected as provided in this Section 7(c). If a Change of
Control shall not have occurred, the Independent Counsel shall be
selected by the Board, and the Company shall give written notice
to Indemnitee advising him of the identity of the Independent
Counsel so selected. If a Change of Control shall have occurred,
the Independent Counsel shall be selected by Indemnitee (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. In
either event, Indemnitee or the Company, as the case may be, may,
within 7 days after such written notice of selection shall have
been given, deliver to the Company or to Indemnitee, as the case
may be, a written objection to such selection. Such objection
may be asserted only on the ground that the Independent Counsel
so selected does not meet the requirements of "Independent
Counsel" as defined in Section 14 of this Agreement, and the
objection shall set forth with particularity the factual basis of
such assertion. If such written objection is made, the
Independent Counsel so selected may not serve as Independent
Counsel unless and until a court has determined that such
objection is without merit. If, within twenty (20) days after
submission by Indemnitee of a written request for indemnification
pursuant to Section 7(a) hereof, no Independent Counsel shall
have been selected or if selected, shall have been objected to,
in accordance with this Section 7(c), either the Company or
Indemnitee may petition the Court of Chancery of the State of
Delaware or other court of competent jurisdiction for resolution
of any objection which shall have been made by the Company or
Indemnitee to the other's selection of independent counsel and/or
for the appointment as independent counsel of a person selected
PAGE
5
by the Court or by such other person as the Court shall
designate, and the person with respect to whom an objection is
favorably resolved or the person so appointed shall act as
Independent Counsel under Section 7(b) hereof. The Company shall
pay reasonable fees and expenses of Independent Counsel incurred
by such Independent Counsel in connection with acting pursuant to
Section 7(b) hereof. The Company shall pay any and all
reasonable fees and expenses incident to the procedures of this
Section 7(c), regardless of the manner in which such Independent
Counsel was selected or appointed. Upon the due commencement of
any judicial proceeding or arbitration pursuant to Section
9(a)(iii) of this Agreement, Independent Counsel shall be
discharged and relieved of any further responsibility in such
capacity (subject to the applicable standards of professional
conduct then prevailing).
8. Presumptions and Effect of Certain Proceedings.
(a) If a Change of Control shall have occurred, in making a
determination with respect to entitlement to indemnification
hereunder, the person, persons or entity making such
determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted
a request for indemnification in accordance with Section 7(a) of
this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any
person, persons or entity of any determination contrary to that
presumption.
(b) If the person, persons or entity empowered or selected
under Section 7 of this Agreement to determine whether Indemnitee
is entitled to indemnification shall not have made such
determination within sixty (60) days after receipt by the Company
of the request therefor, the requisite determination of
entitlement to indemnification shall be deemed to have been made
and Indemnitee shall be entitled to such indemnification, absent
(i) a misstatement by Indemnitee of a material fact, or an
omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; provided, however, that
such 60-day period may be extended for a reasonable time, not to
exceed an additional thirty (30) days, if the person, persons or
entity making the determination with respect to entitlement to
indemnification in good faith requires such additional time for
the obtaining or evaluating of documentation and/or information
relating thereto; and provided, further, that the foregoing
provisions of this Section 8(b) shall not apply (i) if the
determination of entitlement to indemnification is to be made by
the stockholders pursuant to Section 7(b) of this Agreement and
if (A) within fifteen (15) days after receipt by the Company of
the request for such determination the Board has resolved to
submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within
PAGE
6
seventy-five (75) days after such receipt and such determination
is made thereat, or (B) a special meeting of stockholders is
called within fifteen (15) days after such receipt for the
purpose of making such determination, such meeting is held for
such purpose within sixty (60) days after having been so called
and such determination is made thereat, or (ii) if the
determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 7(b) of this Agreement.
(c) The termination of any action, suit, arbitration,
alternative dispute resolution mechanism, investigation,
administrative hearing or other proceeding whether civil,
criminal, administrative or investigative 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
(except as otherwise expressly provided in this Agreement) of
itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not
act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Company or,
with respect to any criminal action or proceeding, that
Indemnitee had reasonable cause to believe that his conduct was
unlawful.
9. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant
to Section 7 of this Agreement that Indemnitee is not entitled to
indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 6 of this
Agreement, (iii) the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 7(b) of this Agreement and such determination shall not
have been made and delivered in a written opinion within ninety
(90) days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made
pursuant to Section 5 of this Agreement within ten (10) days
after receipt by the Company of a written request therefor, or
(v) payment of indemnification is not made within ten (10) days
after a determination has been made that Indemnitee is entitled
to indemnification or such determination is deemed to have been
made pursuant to Section 8 of this Agreement, Indemnitee shall be
entitled to an adjudication in an appropriate court of the State
of Delaware, or in any other court of competent jurisdiction, of
his entitlement to such indemnification or advancement of
Expenses. Alternatively, Indemnitee, at his option, may seek an
award in arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association.
Indemnitee shall commence such proceeding seeking an adjudication
or an award in arbitration within one hundred eighty (180) days
following the date on which Indemnitee first has the right to
commence such proceeding pursuant to this Section 9(a). The
Company shall not oppose Indemnitee's right to seek any such
adjudication or award in arbitration.
PAGE
7
(b) In the event that a determination shall have been made
pursuant to Section 7 of this Agreement that Indemnitee is not
entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 9 shall be
conducted in all respects as a de novo trial, or arbitration, on
the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. If a Change of Control shall have
occurred, in any judicial proceeding or arbitration commenced
pursuant to this Section 9 the Company shall have the burden of
proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to
have been made pursuant to Section 7 or 8 of this Agreement 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 9, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of
a material fact necessary to make Indemnitee's statement not
materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification
under applicable law.
(d) The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this
Section 9 that the procedures and presumptions of this Agreement
are not valid, binding and enforceable and shall stipulate in any
such court or before any such arbitrator that the Company is
bound by all the provisions of this Agreement.
(e) In the event that Indemnitee, pursuant to this Section
9, seeks a judicial adjudication of or an award in arbitration to
enforce his rights under, or to recover damages for breach of,
this Agreement, Indemnitee shall be entitled to recover from the
Company, and shall be indemnified by the Company against, any and
all expenses (of the types described in the definition of
Expenses in Section 14 of this Agreement) actually and reasonably
incurred by him in such judicial adjudication or arbitration, but
only if he prevails therein. If it shall be determined in said
judicial adjudication or arbitration that Indemnitee is entitled
to receive part but not all of the indemnification or advancement
of expenses sought, the expenses incurred by Indemnitee in
connection with such judicial adjudication or arbitration shall
be appropriately prorated.
10. Security. To the extent requested by the Indemnitee
and approved by the Board, the Company may at any time and from
time to time provide security to the Indemnitee for the Company's
obligations hereunder through an irrevocable bank line of credit,
funded trust or other collateral. Any such security, once
provided to the Indemnitee, may not be revoked or released
without the prior written consent of Indemnitee.
PAGE
8
11. Non-Exclusivity; Duration of Agreement; Insurance;
Subrogation.
(a) The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may
at any time be entitled under applicable law, the Company's
certificate of incorporation or by-laws, any other agreement, a
vote of stockholders or a resolution of directors, or otherwise.
This Agreement shall continue until and terminate upon the later
of: (a) ten (10) years after the date that Indemnitee shall have
ceased to serve as a Director of the Company or fiduciary of any
other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee served at the
request of the Company; or (b) the final termination of all
pending actions, suits, arbitrations, alternative dispute
resolution mechanisms, investigations, administrative hearings or
other proceedings whether civil, criminal, administrative or
investigative in respect of which Indemnitee is granted rights of
indemnification or advancement of expenses hereunder and of any
proceeding commenced by Indemnitee pursuant to Section 9 of this
Agreement relating thereto. This Agreement shall be binding upon
the Company and its successors and assigns and shall inure to the
benefit of Indemnitee and his heirs, executors and
administrators.
(b) To the extent that the Company maintains D&O Insurance,
Indemnitee shall be covered by such D&O Insurance in accordance
with its terms to the maximum extent of the coverage available
for any Director under such policy or policies.
(c) 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 action necessary to secure such
rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that Indemnitee has otherwise actually received
such payment under any insurance policy, contract, agreement or
otherwise.
12. Severability; Reformation. 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 (b) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each
PAGE
9
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 by the provision
held invalid, illegal or unenforceable.
13. Exception to Right of Indemnification or Advancement of
Expenses. Notwithstanding any other provision of this Agreement,
Indemnitee shall not be entitled to indemnification or
advancement of Expenses under this Agreement with respect to any
action, suit or proceeding, or any claim therein, initiated,
brought or made by him (i) against the Company, unless a Change
in Control shall have occurred, or (ii) against any person other
than the Company, unless approved in advance by the Board.
14. Definitions. For purposes of this Agreement:
(a) "Change in Control" means a change in control of the
Company of a nature that would be required to be reported in
response to Item 5(f) of Schedule 14A of Regulation 14A (or
in response to any similar item on any similar schedule or
form) promulgated under the Securities Exchange Act of 1934
(the "Act"), whether or not the Company is then subject to
such reporting requirement; provided, however, that, without
limitation, such a Change in Control shall be deemed to have
occurred if (i) any "person" (as such term is used in
Section 13(d) and 14(d) of the Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the
Company's then outstanding securities without the prior
approval of at least two-thirds of the members of the Board
in office immediately prior to such person attaining such
percentage interest; (ii) the Company is a party to a
merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of
which members of the Board in office immediately prior to
such transaction or event constitute less than a majority of
the Board thereafter; or (iii) during any period of two
consecutive years, individuals who at the beginning of such
period constituted 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 two-thirds of the directors then still in office who
were directors at the beginning of such period) cease for
any reason to constitute at least a majority of the Board.
(b) "Corporate Status" describes the status of a person who
is or was or has agreed to become a director of the Company,
or is or was an officer or fiduciary of the Company or of
any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person
is or was serving at the request of the Company.
PAGE
10
(c) "Disinterested Director" means a director of the
Company who is not and was not a party to the action, suit,
arbitration, alternative dispute resolution mechanism,
investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or
investigative in respect of which indemnification is sought
by Indemnitee.
(d) "Expenses" shall include all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of
experts, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service
fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend or investigating
an action, suit, arbitration, alternative dispute resolution
mechanism, investigation, administrative hearing or any
other proceeding whether civil, criminal, administrative or
investigative.
(e) "Independent Counsel" means a law firm, or a member of
a law firm, that is experienced in matters of corporation
law and neither currently is, nor in the past five years has
been, retained to represent: (i) the Company or Indemnitee
in any matter material to either such party or (ii) any
other party to the action, suit, arbitration, alternative
dispute resolution mechanism, investigation, administrative
hearing or any other proceeding whether civil, criminal,
administrative or investigative giving rise to a claim for
indemnification 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.
15. Headings. The headings of the paragraphs of this
Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Agreement or to affect the
construction thereof.
16. Modification and Waiver. This Agreement may be amended
from time to time to reflect changes in Delaware law or for other
reasons. No supplement, modification 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 provision hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.
17. Notice by Indemnitee. Indemnitee agrees promptly to
notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other
document relating to any matter which may be subject to
PAGE
11
indemnification or advancement of Expenses covered hereunder;
provided, however, that the failure to give any such notice shall
not disqualify the indemnitee from indemnification hereunder.
18. 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:
PAGE
12
(a) If to Indemnitee, to: The address shown beneath
his or her signature on
the last page hereof
(b) If to the Company, to: Thermo Vision Corporation
c/o Thermo Electron
Corporation
00 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Attn: Corporate
Secretary
or to such other address as may have been furnished to Indemnitee
by the Company or to the Company by Indemnitee, as the case may
be.
19. Governing Law. The parties agree that this Agreement
shall be governed by, and construed and enforced in accordance
with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
Attest: THERMO VISION CORPORATION
By By
: :
Xxxxxx X. Xxxxxxx Xxxxxxxx X. Xxxxxxx
Secretary Chief Executive Officer
INDEMNITEE
Address: