EXHIBIT 10.39
INDEMNIFICATION AGREEMENT
[Date]
[Name]
[Address]
Dear
In consideration of your continued service as an officer or director
of Great Dane Holdings Inc. (the "Company"), the Company shall to the extent
provided herein indemnify you and hold you harmless from and against any and all
"Losses" (as defined below) which you may incur by reason of your election or
service as a director, officer, employee, agent, fiduciary or representative of
the Company or any "Related Entity" (as defined below) to the fullest extent
permitted by law.
1. (a) "Losses" mean all liabilities, "Costs and Expenses" (as
defined below), amounts of judgments, fines, penalties or excise taxes (or other
amounts assessed, surcharged or levied under the Employee Retirement Income
Security Act of 1974, as amended) and amounts paid in settlement of or incurred
in defense of any settlement in connection with any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, and whether brought by or in the right of the
Company or otherwise, and appeals in which you may become involved, as a party
or otherwise, by reason of acts or omissions in your capacity as and while
serving as a director, officer, employee, agent, fiduciary or representative of
the Company or any Related Entity.
(b) A "Related Entity" means any corporation, partnership,
joint venture, trust or other entity or enterprise in which the Company is in
any way interested, or in or as to which you are serving at the Company's
request or on its behalf, as a director, officer, employee, agent, fiduciary or
representative including, but not limited to, any employee benefit plan or any
corporation of which the Company or any Related Entity is, directly or
indirectly, a stockholder or creditor.
(c) "Costs and Expenses" means all reasonable costs and
expenses incurred by you in investigating, defending or appealing any
threatened, pending or completed claim, action, suit or proceeding including,
without limitation, counsel fees and disbursements.
2. Costs and Expenses shall be paid promptly by the
Company as they are incurred or shall be advanced on your behalf as may be
appropriate against delivery of invoices therefor (whether or not it may
ultimately be determined that you are entitled to be indemnified by the Company
on account thereof); provided, however, that if it shall ultimately be
determined by final decision of a court of competent jurisdiction that you are
not entitled to be indemnified on account of any costs or expenses for which you
have theretofore received payment or reimbursement, you shall promptly repay
such amount to the Company.
3. The Company shall indemnify you and hold you harmless from and
against any and all Losses which you may incur if you are a party to or
threatened to be made a party to or otherwise involved in any proceeding or
action (other than a proceeding or action by or in the right of the Company to
procure a judgment in its favor), unless it is determined that you did not act
in good faith and in a manner reasonably believed by you to be in, or not
opposed to, the best interest of the Company and, in the case of a criminal
proceeding or action, in addition, that you had reasonable cause to believe that
your conduct was unlawful.
4. The Company shall indemnify you and hold you harmless from and
against any and all Losses which you may incur if you are a party to or
threatened to be made a party to any proceeding or action by or in the right of
the Company to procure a judgment in its favor, unless it is determined that you
did not act in good faith and in a manner reasonably believed by you to be in,
or not opposed to, the best interest of the Company, except that no
indemnification for Losses shall be made under this Paragraph 4 in respect of
any claim, issue or matter as to which you shall have been adjudged to be liable
to the Company, unless and only to the extent that any court in which such
action or proceeding was brought shall determine upon application that, despite
the adjudication of liability, but in view of all the circumstances of the
matter, you are fairly and reasonably entitled to indemnity for such expenses as
such court shall deem proper.
5. Anything hereinabove to the contrary notwithstanding, "Losses"
shall not include, and you shall not be entitled to indemnification under this
agreement on account of (i) amounts payable by you to the Company or any Related
Entity in satisfaction of any judgment or settlement in the Company's or such
Related Entity's favor, or any amount payable on account of profits realized by
you in the purchase or sale of securities of the Company or any Related Entity
within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provisions of state law; (ii) Losses in connection with
which it is otherwise determined that you are not entitled to indemnification as
a matter of law or public policy; or (iii) Losses to the extent you are
indemnified by the Company otherwise than pursuant to this agreement, including
any Losses for which payment is made to you under an insurance policy.
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6. Termination of any action, suit or proceeding by judgment,
order, settlement or conviction, upon a plea of nolo contendere or its
equivalent will not, of itself, create any presumption that you did not act in
good faith and in a manner which you reasonably believed to be in or not opposed
to the best interest of the Company or a Related Entity and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that your
conduct was unlawful. The determination that you are not entitled to be
indemnified for Losses hereunder by reason of the provisions of Paragraphs 3 or
4 or clause (ii) of Paragraph 5 may be made either by the Company's Board of
Directors (by majority vote of disinterested directors or directors who are not
parties to or the subject of the same or any similar claim, action, suit or
proceeding), by independent legal counsel (who may be the outside counsel
regularly employed by the Company) or by the stockholders of the Company, as the
Company's Board of Directors shall determine.
7. The right to indemnification or advances of Costs and Expenses
as provided in this agreement shall be enforceable by you in any court of
competent jurisdiction. The burden of proving that indemnification is not
appropriate shall be on the Company. Neither the failure of the Company
(including its Board of Directors or independent legal counsel) to have made a
determination prior to the commencement of such action that indemnification is
proper in the circumstances because you have met the applicable standard of
conduct, nor an actual determination by the Company (including its Board of
Directors or independent legal counsel) that you have not met such applicable
standard of conduct shall be a defense to the action or create a presumption
that you have not met the applicable standard of conduct. Costs and expenses,
including counsel fees, reasonably incurred by you in connection with
successfully establishing your right to indemnification, in whole or in part, in
any such action shall also be indemnified by the Company.
8. You agree to give prompt notice to the Company of any claim
with respect to which you seek indemnification and, unless a conflict of
interest shall exist between you and the Company with respect to such claim, you
will permit the Company to assume the defense of such claim with counsel of its
choice. Regardless of whether such defense is assumed by the Company, the
Company will not be subject to any liability for any settlement made without its
consent. The Company will not consent to entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to you a release from all liability with respect to
such claim or litigation. If the Company is not entitled to, or does not elect
to, assume the defense of a claim, the Company will not be obligated to pay the
fees and expenses of more than one counsel for you and any other directors or
officers of the Company who are indemnified pursuant to similar indemnity
agreements with respect
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to such claim, unless a conflict of interest shall exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which event the Company will be obligated to pay the fees and expenses
of an additional counsel for each indemnified party or group of indemnified
parties with whom a conflict of interest exists.
9. The Company's obligation to indemnify you under this agreement
is in addition to any other rights to which you may otherwise be entitled by
operation of law, vote of the Company's stockholders or directors or otherwise
and will be available to you whether or not the claim asserted against you is
based upon matters which occurred before the date of this agreement.
10. The obligation of the Company to indemnify you with respect to
Losses which you may incur by reason of your service as a director, officer,
employee, agent, fiduciary or representative of the Company or a Related Entity,
as provided under this agreement, shall survive the termination of your service
in such capacities and shall inure to the benefit of your heirs, executors and
administrators.
11. The Company agrees that, so long as you shall serve as a
director, officer, employee, agent, fiduciary or representative of the Company
or any Related Entity and thereafter so long as you shall be subject to any
possible claim or threatened, pending or completed action or proceeding by
reason of your service as a director, officer, employee, agent, fiduciary or
representative of the Company or any Related Entity, the Company shall use
reasonable efforts to purchase and maintain in effect for your benefit valid,
binding and enforceable policies of directors and officers liability insurance
("D & O Insurance"), covering Losses, it being understood that the Company shall
not be required to maintain D & O Insurance in effect if such insurance is not
reasonably available or if, in the reasonable business judgment of the directors
of the Company, either (i) the premium cost for such insurance is substantially
disproportionate to the amount of coverage or (ii) the coverage provided by such
insurance is so limited by exclusions that there is insufficient benefit from
such insurance.
12. If you are entitled under this agreement or otherwise to
indemnification by the Company for some or a portion of the Losses actually and
reasonably incurred by you but not, however, for the total amount thereof, the
Company shall nevertheless indemnify you for the portion of the Losses to which
you are entitled.
13. It is the intention of the parties to this agreement to
provide for indemnification in all cases and under all circumstances where to do
so would not violate applicable law (and notwithstanding any limitations
permitted, but not required by
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statute) and the terms and provisions of this agreement shall be interpreted and
construed consistent with that intention. Nevertheless, if any provision of
this agreement or any indemnification made under this agreement shall for any
reason be determined by any court of competent jurisdiction to be invalid,
unlawful or unenforceable under current or future laws, such provision shall be
fully severable and the remaining provisions of this agreement shall not
otherwise be affected thereby, but will remain in full force and effect and, to
the fullest extent possible, shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
14. No amendment, modification, termination or cancellation of
this agreement shall be effective unless in writing signed by both the Company
and you.
Your signature below will evidence your agreement and acceptance
with respect to the foregoing.
Very truly yours,
GREAT DANE HOLDINGS INC.
By:____________________________
AGREED TO AND ACCEPTED:
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