1
FORM OF
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of the
____ day of ___________, 199_, by and between Forum Retirement, Inc., a
Delaware corporation (the "Company"), and _____________________ (the
"Indemnitee").
RECITALS
A. The Indemnitee is presently serving as a director and/or
an officer of the Company and/or, at the request of the Company, in an
Authorized Capacity (as defined below) of or for Another Entity (as defined
below). The Company desires the Indemnitee to continue in such capacity. The
Indemnitee is willing, subject to certain conditions including without
limitation the execution and performance of this Agreement by the Company, to
continue in that capacity.
B. In addition to the indemnification to which the Indemnitee
is entitled under the Certificate of Incorporation of the Company (the
"Certificate") and the By-Laws of the Company, as amended (the "By-Laws"), the
Company has obtained and will endeavor to keep in force, at its sole expense,
insurance protecting its officers and directors and certain other persons
(including the Indemnitee) against certain losses arising out of actual or
threatened actions, suits or proceedings to which such persons may be made or
threatened to be made parties. However, as a result of circumstances having no
relation to, and beyond the control of, the Company and the Indemnitee, there
can be no assurance of the continuation or renewal of that insurance, or
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that any such insurance will provide coverage for losses to which the
Indemnitee may be exposed and for which he or she may be permitted to be
indemnified under the General Corporation Law of the State of Delaware (the
"DGCL").
Accordingly, and in order to induce the Indemnitee to continue
to serve in his or her present capacity, the Company and Indemnitee agree as
follows:
1. Continued Service. The Indemnitee will continue to serve
as a director and/or an officer of the Company and/or in each such Authorized
Capacity of or for Another Entity in which he or she presently serves, in each
case so long as he or she is duly elected and qualified to serve in such
capacity or until he or she resigns or is removed.
2. Initial Indemnity. (a) The Company will indemnify the
Indemnitee when he or she was or is involved in any manner (including without
limitation as a party or as a deponent or witness) or is threatened to be made
so involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, formal or informal,
and any appeals therefrom (a "Proceeding") (other than a Proceeding by or in
the right of the Company), by reason of the fact that he or she is or was or
had agreed to become a director, officer, employee or agent of the Company, or
is or was serving or had agreed to serve at the request of the Company as a
director, officer, partner, member, trustee, employee or agent (each an
"Authorized Capacity") of another corporation, partnership, joint venture,
trust or other enterprise (each
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"Another Entity"), or by reason of any action alleged to have been taken or
omitted in such capacity, against any and all costs, charges and expenses
(including attorneys' and others' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such Proceeding if the Indemnitee acted in good faith and in a manner that he
or she reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal Proceeding, the Indemnitee had no
reasonable cause to believe his or her conduct was unlawful. The termination
of any Proceeding by judgment, order, settlement, conviction or upon a plea of
nolo contendere or its equivalent will not, of itself, adversely affect the
right of the Indemnitee to indemnification or create a presumption that the
Indemnitee did not meet the foregoing standard of conduct to the extent
applicable thereto.
(b) The Company will indemnify the Indemnitee when he or she
was or is involved in any manner (including without limitation as a party,
deponent or witness) or is threatened to be made so involved in any Proceeding
by or in the right of the Company to procure a judgment in its favor by reason
of the fact that he or she is or was or had agreed to become a director,
officer, employee or agent of the Company, or is or was serving or had agreed
to serve at the request of the Company in an Authorized Capacity of or for
Another Entity, against any and all costs, charges and expenses (including
attorneys' and others' fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such Proceeding if
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the Indemnitee acted in good faith and in a manner that he or she reasonably
believed to be in or not opposed to the best interests of the Company, except
that no indemnification will be made in respect of any claim, issue or matter
as to which the Indemnitee shall have been adjudged to be liable to the Company
unless, and only to the extent, that the Court of Chancery or the court in
which the Proceeding was brought determines upon application that, despite the
adjudication of liability but in view of all circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court deems proper.
(c) To the extent that the Indemnitee has been successful on
the merits or otherwise, including without limitation the dismissal of a
Proceeding without prejudice, in the defense of any Proceeding referred to in
Section 2(a) or Section 2(b) or in the defense of any claim, issue or matter in
any such Proceeding, the Company will indemnify him or her against any and all
costs, charges and expenses, including without limitation attorneys' and
others' fees, actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under Section 2(a) or Section 2(b)
(unless ordered by a court) will be made by the Company only as authorized in
the specific case upon a determination, in accordance with Section 4 or any
applicable provision of the Certificate, the By-Laws, the DGCL, other
agreement, resolution or otherwise, that such indemnification is proper in the
circumstances because he or she has met the
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applicable standards of conduct set forth in Section 2(a) and Section 2(b) (the
"Indemnification Standards"). Such determination will be made in the manner
set forth in Section 4(b).
(e) Any and all costs, charges and expenses, including
without limitation attorneys' and others' fees, actually and reasonably
incurred by the Indemnitee in defending any Proceeding will be paid by the
Company in advance of the final disposition of such Proceeding in accordance
with the procedure set forth in Section 4(e).
(f) Notwithstanding anything in this Agreement to the
contrary, the Indemnitee will not be entitled to indemnification or advancement
of expenses pursuant hereto in connection with any Proceeding initiated by the
Indemnitee against the Company (except for any Proceeding initiated by the
Indemnitee pursuant to Section 6) unless the Company has joined in or consented
to the initiation of such Proceeding.
(g) The provisions of this Section 2 will not affect the
rights or obligations of the parties under Section 3.
3. Additional Indemnification. (a) Pursuant to Section
145(f) of the DGCL, without limiting any right which the Indemnitee may have
under Section 2, the Certificate, the By-Laws, the DGCL, any policy of
insurance or otherwise, but subject to the limitations set forth in Section
2(f) and to any maximum permissible indemnity which may exist under applicable
law at the time of any request for indemnity hereunder as contemplated by this
Section 3(a), the Company will indemnify the
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Indemnitee against any amount which he or she is or becomes legally obligated
to pay relating to or arising out of any claim made against him or her because
of any act, failure to act or neglect or breach of duty, including any actual
or alleged error, misstatement or misleading statement, which he or she
commits, suffers, permits or acquiesces in while acting in his or her capacity
as a director and/or officer of the Company, or, at the request of the Company,
in an Authorized Capacity of or for Another Entity. The payments which the
Company is obligated to make pursuant to this Section 3 will include without
limitation damages, judgments, settlements and reasonable charges, costs,
expenses, expenses of investigation, preparation and defense of Proceedings,
and expenses of appeal, attachment or similar bonds; provided, however, that
the Company will not be obligated under this Section 3(a) to make any payment
in connection with any claim against the Indemnitee:
(i) to the extent of any fine or similar governmental
imposition which the Company is prohibited by applicable law from
paying and which results from a final, nonappealable order; or
(ii) to the extent based upon or attributable to the
Indemnitee gaining in fact a personal profit to which he or she was
not legally entitled, including without limitation profits made from
the purchase and sale by the Indemnitee of equity securities of the
Company or an affiliate of the Company which are recoverable by the
Company or such affiliate pursuant to Section 16(b) of the Securities
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Exchange Act of 1934, as amended, and profits arising from
transactions in publicly traded securities of the Company or any
affiliate of the Company which were effected by the Indemnitee in
violation of Section 10(b) of the Securities Exchange Act of 1934, as
amended, including Rule 10b-5 promulgated thereunder.
The determination of whether the Indemnitee is entitled to indemnification
under this Section 3(a) may, but shall not be required to, be made in
accordance with Section 4(a). If that determination is so made, it will be
binding upon the Company and the Indemnitee for all purposes.
(b) Any and all costs, charges and expenses, including
without limitation attorneys' and others' fees, actually and reasonably
incurred by the Indemnitee in connection with any claim for which the
Indemnitee may be entitled to indemnification pursuant to Section 3(a) will be
paid or reimbursed by the Company in advance of the final disposition thereof
in accordance with the procedure set forth in Section 4(e).
4. Certain Procedures Relating to Indemnification and
Advancement of Expenses. (a) Except as otherwise permitted or required by the
DGCL, for purposes of pursuing his or her rights to indemnification under
Section 2(a), Section 2(b) or Section 3(a), as the case may be, the Indemnitee
may, but shall not be required to, submit to the Company (to the attention of
the Secretary) a sworn statement of request for indemnification substantially
in the form of Exhibit 1 attached hereto (the "Indemnification Statement")
averring that he or she believes
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that he or she is entitled to indemnification pursuant to this Agreement,
together with such documents supporting the request as are reasonably available
to the Indemnitee and are reasonably necessary to determine whether and to what
extent the Indemnitee is entitled to indemnification hereunder (the "Supporting
Documentation"). The Company will promptly upon receipt of any Indemnification
Statement advise the Board of Directors of the Company (the "Board") in writing
that the Indemnitee has requested indemnification.
(b) The Indemnitee's entitlement to indemnification under
Section 2(a), Section 2(b) or Section 3(a), as the case may be, will be
determined not less than 30 calendar days after receipt by the Company of an
Indemnification Statement and Supporting Documentation and will be made in one
of the following ways: (i) by the Board by a majority vote of a quorum
consisting of directors who are or were not parties to such Proceeding
("Disinterested Directors"), or (ii) by written opinion of independent legal
counsel selected by a majority of the Disinterested Directors (or, if there are
no Disinterested Directors or a majority vote thereof is not obtainable, by a
majority of the entire Board), if a quorum of the Board consisting of
Disinterested Directors is not obtainable or, even if obtainable, a quorum of
Disinterested Directors so directs, or (iii) by the stockholders of the Company
(but only if a majority of Disinterested Directors, if they constitute a quorum
of the Board, presents the issue of entitlement to indemnification to the
stockholders of the Company for their determination), or (iv)
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as deemed to have been determined in accordance with Section 4(c). Independent
legal counsel selected as described above will be a law firm or member of a law
firm (i) that neither at the time in question nor in the five years immediately
preceding such time has been retained to represent (A) the Company or the
Indemnitee in any matter material to either such party or (B) any other party
to the Proceeding giving rise to a claim for indemnification under this
Agreement, (ii) that under the applicable standards of professional conduct
then prevailing under the law of the State of Delaware, would not be precluded
from representing either the Company or the Indemnitee in an action to
determine the Indemnitee's rights under this Agreement, and (iii) to which the
Indemnitee does not reasonably object. The Company will pay the fees and
expenses of such independent legal counsel.
(c) Submission of an Indemnification Statement and Supporting
Documentation to the Company pursuant to Section 4(b) will create a presumption
that the Indemnitee is entitled to indemnification under Section 2(a), Section
2(b) or Section 3(a), as the case may be, and thereafter the Company will have
the burden of proof to overcome that presumption in reaching a contrary
determination. In any event, if the person or persons empowered under Section
4(b) to determine the Indemnitee's entitlement to indemnification have not been
appointed or have not made a determination within 30 calendar days after
receipt by the Company of such Indemnification Statement and Supporting
Documentation, the Indemnitee will be deemed to be entitled to
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indemnification unless within such 30-calendar day period the person or persons
empowered under Section 4(b) to determine entitlement to indemnification have
made a determination, based upon clear and convincing evidence (sufficient to
rebut the foregoing presumption), that the Indemnitee is not entitled to such
indemnification and the Indemnitee has received notice within such period in
writing of such determination, which notice will (i) disclose with
particularity the evidence in support of such determination and (ii) be sworn
to by all persons who participated in the determination and voted to deny
indemnification. The provisions of this Section 4(c) are intended to be
procedural only and will not affect the right of the Indemnitee to
indemnification under this Agreement and any determination that the Indemnitee
is not entitled to indemnification and any failure to make the payments
requested in the Indemnification Statement will be subject to review as
provided in Section 6.
(d) If a determination is made or deemed to have been made
pursuant to this Section 4 that the Indemnitee is entitled to indemnification,
the Company will pay to the Indemnitee the amounts to which the Indemnitee is
entitled within two business days after such determination of entitlement to
indemnification has been made or deemed to have been made.
(e) In order to obtain advancement of expenses pursuant to
Section 2(e), the Indemnitee will submit to the Company a written undertaking
substantially in the form of Exhibit 2 attached hereto, executed personally or
on his or her behalf (the
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"Undertaking"), stating that (i) he or she has incurred or will incur actual
expenses in defending a Proceeding and (ii) if and to the extent required by
law at the time of such advance, he or she undertakes to repay such amounts
advanced as to which it may ultimately be determined that the Indemnitee is not
entitled. In order to obtain advancement of expenses pursuant to Section 3(b),
the Indemnitee may, but shall not be required to, submit an Undertaking or such
other form of request as he or she determines to be appropriate (an "Expense
Request"). Upon receipt of an Undertaking or Expense Request, as the case may
be, the Company will within 30 calendar days make payment of the costs, charges
and expenses stated in the Undertaking or Expense Request. No security will be
required in connection with any Undertaking or Expense Request and any
Undertaking or Expense Request will be accepted without reference to the
Indemnitee's ability to make repayment.
5. Subrogation; Duplication of Payments. (a) In the event of
payment under this Agreement, the Company will be subrogated to the extent of
such payment to all of the rights of recovery of the Indemnitee, who will
execute all papers required and will do everything that may be necessary to
secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such rights.
(b) The Company will not be liable under this Agreement to
make any payment in connection with any claim made against the Indemnitee to
the extent the Indemnitee has actually received
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payment (under any insurance policy, the Certificate, the By-Laws, the DGCL or
otherwise) of the amounts otherwise payable hereunder.
6. Enforcement. (a) If a claim for indemnification or
advancement of expenses made to the Company pursuant to Section 4 is not timely
paid in full by the Company as required by Section 4, the Indemnitee will be
entitled to seek judicial enforcement of the Company's obligations to make such
payments. In the event that a determination is made pursuant to Section 4 that
the Indemnitee is not entitled to indemnification or advancement of expenses
hereunder, (i) the Indemnitee may at any time thereafter seek an adjudication
of his or her entitlement to such indemnification or advancement either, at the
Indemnitee's sole option, in (A) an appropriate court of the State of Delaware
or any other court of competent jurisdiction or (B) an arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association; (ii) any such judicial proceeding or arbitration will
be de novo and the Indemnitee will not be prejudiced by reason of such adverse
determination; and (iii) in any such judicial proceeding or arbitration the
Company will have the burden of proving that the Indemnitee is not entitled to
indemnification or advancement of expenses under this Agreement.
(b) The Company will be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to the provisions of
Section 6(a) that the procedures and presumptions of this Agreement are not
valid, binding and enforceable and will
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stipulate in any such court or before any such arbitrator that the Company is
bound by all the provisions of this Agreement.
(c) In any action brought under Section 6(a), it will be a
defense to a claim for indemnification pursuant to Section 2(a) or Section 2(b)
(but not an action brought to enforce a claim for costs, charges and expenses
incurred in defending any Proceeding in advance of its final disposition where
the Undertaking, if any is required, has been tendered to the Company) that the
Indemnitee has not met the standards of conduct which make it permissible under
the DGCL for the Company to indemnify the Indemnitee for the amount claimed,
but the burden of proving such defense will be on the Company. Neither the
failure of the Company (including any person or persons empowered under Section
4(b) to determine the Indemnitee's entitlement to indemnification) to have made
a determination prior to commencement of such action that indemnification of
the Indemnitee is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the DGCL, nor an actual
determination by the Company (including any person or persons empowered under
Section 4(b) to determine the Indemnitee's entitlement to indemnification) that
the Indemnitee has not met such applicable standard of conduct, will be a
defense to the action or create a presumption that the Indemnitee has not met
the applicable standard of conduct.
(d) It is the intent of the Company that the Indemnitee not
be required to incur the expenses associated with the enforcement of his or her
rights under this Agreement by
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litigation or other legal action because the cost and expense thereof would
substantially detract from the benefits intended to be extended to the
Indemnitee hereunder. Accordingly, if it should appear to the Indemnitee that
the Company has failed to comply with any of its obligations under this
Agreement, or in the event that the Company or any other person takes any
action to declare this Agreement void or unenforceable, or institutes any
action, suit or proceeding designed (or having the effect of being designed) to
deny, or to recover from, the Indemnitee the benefits intended to be provided
to the Indemnitee hereunder, the Company irrevocably authorizes the Indemnitee
from time to time to retain counsel of his or her choice, at the expense of the
Company as hereafter provided, to represent the Indemnitee in connection with
the initiation or defense of any litigation or other legal action, whether by
or against the Company or any director, officer, shareholder or other person
affiliated with the Company, in any jurisdiction. Notwithstanding any existing
or prior attorney-client relationship between the Company and such counsel, the
Company irrevocably consents to the Indemnitee's entering into an
attorney-client relationship with such counsel, and in that connection the
Company and the Indemnitee acknowledge that a confidential relationship will
exist between the Indemnitee and such counsel. Regardless of the outcome
thereof, the Company will pay and be solely responsible for any and all costs,
charges and expenses, including without limitation attorneys' and others' fees,
incurred by the Indemnitee (i) as a result of the Company's failure to perform
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this Agreement or any provision hereof or (ii) as a result of the Company or
any person contesting the validity or enforceability of this Agreement or any
provision thereof as aforesaid.
7. Liability Insurance and Funding. To the extent the
Company maintains an insurance policy or policies providing directors' and
officers' or general partner's liability insurance, the Indemnitee will be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for a director or officer of the
Company or a person serving at the request of the Company in an Authorized
Capacity of or for Another Entity as the case may be. The Company may, but
shall not be required to, create a trust fund, grant a security interest or use
other means (including without limitation a letter of credit) to ensure the
payment of such amounts as may be necessary to satisfy its obligations to
indemnify and advance expenses pursuant to this Agreement.
8. Merger or Consolidation. In the event that the Company is
a constituent corporation in a consolidation, merger or other reorganization,
the Company will require: (a) if it is not the surviving, resulting or other
corporation therein, the surviving, resulting or acquiring corporation to agree
to indemnify the Indemnitee to the full extent provided herein and (b) whether
or not the Company is the resulting, surviving or acquiring corporation in any
such transaction, the Indemnitee will also stand in the same position under
this Agreement with respect to the resulting, surviving or acquiring
corporation as
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he or she would have with respect to the Company if its separate existence had
continued.
9. Nonexclusivity and Severability. (a) The right to
indemnification and advancement of expenses provided by this Agreement is not
exclusive of any other rights to which the Indemnitee may be entitled under the
Certificate, By-Laws, the DGCL, any other statute, insurance policy, agreement,
vote of stockholders or of directors or otherwise, both as to actions in his or
her official capacity and as to actions in another capacity while holding such
office, and will continue after the Indemnitee has ceased to serve as a
director or officer of the Company or in an Authorized Capacity in or for
Another Entity and will inure to the benefit of his or her heirs, executors and
administrators; provided, however, that to the extent the Indemnitee otherwise
would have any greater right to indemnification and/or advancement of expenses
under any provision of the Certificate or the By-Laws as in effect on the date
hereof, the Indemnitee will be deemed to have such greater right pursuant to
this Agreement; and, provided further, that to the extent that any change is
made to the DGCL (whether by legislative action or judicial decision), the
Certificate and/or the By-Laws that permits any greater right to
indemnification and/or advancement of expenses than that provided under this
Agreement as of the date hereof, the Indemnitee will be deemed to have such
greater right pursuant to this Agreement.
(b) The Company will not adopt any amendment to the
Certificate or By-Laws the effect of which would be to deny,
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diminish or encumber the Indemnitee's rights to indemnity pursuant to the
Certificate, By-Laws, the DGCL or any other applicable law as applied to any
act or failure to act occurring in whole or in part prior to the date upon
which any such amendment was approved by the Board or the stockholders, as the
case may be. Notwithstanding the foregoing, in the event that the Company
adopts any amendment to the Certificate or By-Laws the effect of which is to so
deny, diminish or encumber the Indemnitee's rights to such indemnity, such
amendment will apply only to acts or failures to act occurring entirely after
the effective date thereof.
(c) If any provision or provisions of this Agreement are held
to be invalid, illegal or unenforceable for any reason whatsoever: (i) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including without limitation all portions of any paragraph of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) will
not in any way be affected or impaired thereby and (ii) to the fullest extent
possible, the provisions of this Agreement (including without limitation all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) will be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
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10. Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflict of laws thereof.
11. Modification; Survival. This Agreement contains the
entire agreement of the parties relating to the subject matter hereof. This
Agreement may be modified only by an instrument in writing signed by both
parties hereto. The provisions of this Agreement will survive the death,
disability, or incapacity of the Indemnitee or the termination of the
Indemnitee's service as a director or an officer of the Company or in an
Authorized Capacity of or for Another Entity and will inure to the benefit of
the Indemnitee's heirs, executors and administrators.
12. Certain Terms. For purposes of this Agreement,
references to "Another Entity" will include employee benefit plans; references
to "fines" will include any excise taxes assessed on Indemnitee with respect to
any employee benefit plan; and references to "serving at the request of the
Company" will include any service in any capacity which imposes duties on, or
involves services by, the Indemnitee with respect to an employee benefit plan,
its participants or beneficiaries; references to Sections or Exhibits are to
Sections or Exhibits of or to this Agreement; references to the singular will
include the plural and vice versa; and if the Indemnitee acted in good faith
and in a manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan he or
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she will be deemed to have acted in a manner "not opposed to the best interests
of the Company" as referred to herein.
13. Joint Defense. Notwithstanding anything to the contrary
contained herein, if (a) the Indemnitee elects to retain counsel in connection
with any Proceeding in respect of which indemnification may be sought by the
Indemnitee against the Company pursuant to this Agreement and (b) any other
director or officer of the Company or person serving at the request of the
Company in an Authorized Capacity of or for Another Entity may also be subject
to liability arising out of such Proceeding and in connection with such
Proceeding may seek indemnification against the Company pursuant to an
agreement similar to this Agreement, the Indemnitee, together with such other
persons, will employ counsel to represent jointly the Indemnitee and such other
persons unless the Board, upon the written request of the Indemnitee delivered
to the Company (to the attention of the Secretary) setting forth in reasonable
detail the basis for such request, determines that such joint representation
would be precluded under the applicable standards of professional conduct then
prevailing under the law of the State of Delaware, in which case the Indemnitee
will be entitled to be represented by separate counsel. In the event that the
Board fails to act on such request within 30 calendar days after receipt
thereof by the Company, the Indemnitee will be deemed to be entitled to be
represented by separate counsel in connection with such Proceeding.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
FORUM RETIREMENT, INC.
By:
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Name:
------------------------------
Title:
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INDEMNITEE
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Exhibit 1
INDEMNIFICATION STATEMENT
STATE OF _______________)
) SS
COUNTY OF ______________)
I, _________________, being first duly sworn, do depose and
say as follows:
1. This Indemnification Statement is submitted pursuant to
the Indemnification Agreement, dated as of ___________ __, 199_ (the
"Indemnification Agreement"), between Forum Retirement, Inc. (the Company"), a
Delaware corporation, and the undersigned.
2. I am requesting indemnification against costs, charges and
expenses (including attorneys' and others' fees), judgments, fines and amounts
paid in settlement, all of which (collectively, "Liabilities") have been
incurred by me in connection with a Proceeding (as defined in the
Indemnification Agreement) in which I was or am involved or am threatened to be
made involved.
3. With respect to all matters related to any such
Proceeding, I believe that I am entitled to be indemnified pursuant to the
provisions of the Indemnification Agreement.
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4. Without limiting any other rights which I have or may
have, I am requesting indemnification against Liabilities which have or may
arise out of ___________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
5. I have attached such documents supporting this request as
are reasonably available to me and are reasonably necessary to determine
whether and to what extent I am entitled to indemnification under the
Indemnification Agreement.
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Name:
------------------------------
Subscribed and sworn to before me, a Notary Public in and for
said County and State, this ____ day of __________, 199_.
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[Seal]
My commission expires the ______ day of _____________, 199_.
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Exhibit 2
UNDERTAKING
STATE OF _______________)
) SS
COUNTY OF ______________)
I, _________________, being first duly sworn do depose and say
as follows:
1. This Undertaking is submitted pursuant to the
Indemnification Agreement, dated as of __________ __ , 199__ (the
"Indemnification Agreement"), between Forum Retirement, Inc. (the "Company"), a
Delaware corporation, and the undersigned.
2. I am requesting advancement of certain costs, charges and
expenses (including attorneys' and others' fees) which I have incurred or will
incur in defending a Proceeding (as defined in the Indemnification Agreement).
3. I hereby undertake to repay this advancement of expenses
if it is ultimately determined that I am not entitled to be indemnified by the
Company under the Indemnification Agreement.
4. The costs, charges and expenses for which advancement is
requested are, in general, all expenses related to _____________________________
________________________________________________________________________________
________________________________________________________________.
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Name:
------------------------------
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Subscribed and sworn to before me, a Notary Public in and for
said County and State, this ____ day of __________, 199_.
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[Seal]
My commission expires the _____ day of _____________, 199_.
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