ex10_28.htm


    
      

    

    EXHIBIT
10.28

    
       

      INDEMNIFICATION
AGREEMENT

       

      This
Agreement (“Agreement”) is made and entered into as of the 14th day of
September, 2009, by and between Caraco Pharmaceutical Laboratories, Ltd., a
Michigan corporation (the “Company”), and F. Folsom Bell
(“Indemnitee”).

       

      RECITALS

       

      A.           Highly
competent and experienced persons are reluctant to serve corporations as
directors, executive officers or in other capacities unless they are provided
with adequate protection through insurance and indemnification against claims
and actions against them arising out of their service to and activities on
behalf of the Company.

       

      B.           The
Board of Directors of the Company (the “Board”) has determined that the
inability to attract and retain such persons would be detrimental to the best
interests of the Company and its stockholders and that the Company should act to
assure such persons that there will be increased certainty of such protection in
the future.

       

      C.           The
Board has also determined that it is reasonable, prudent and necessary for the
Company, to contractually 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 adequately
protected.

       

      D.           Indemnitee
is willing to serve, continue to serve and to take on additional service for or
on behalf of the Company on the condition that Indemnitee be so indemnified to
the fullest extent permitted by law.

       

      E.           Article
XVII of the Amended and Restated Articles of Incorporation and Article VII of
the Amended and Restated Bylaws of the Company each provide for indemnification
of directors and officers to the fullest extent permitted by law.

       

      In
consideration of the foregoing and the mutual covenants herein contained, and
other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties hereby agree as follows:

       

      ARTICLE
I

       

      Certain
Definitions

       

      As used
herein, the following words and terms shall have the following respective
meanings (whether singular or plural):

       

      “Acquiring
Person” means any Person other than (i) the Company, (ii) any of the Company’s
Subsidiaries, (iii) any employee benefit plan of the Company or of a Subsidiary
of the Company or of a Company owned directly or indirectly by the stockholders
of the Company in substantially the same proportions as their ownership of stock
of the Company, or (iv) any trustee or other fiduciary holding securities under
an employee benefit plan of the Company or of a Subsidiary of the Company or of
a Company owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the
Company.

       

      
        
           


        

        
           


          
            

          

        

        
           


        

      

      


      “Claim”
means an actual or threatened claim or request for relief in connection with a
Proceeding which was, is or may be made by reason of anything done or not done
by Indemnitee in, or by reason of any event or occurrence related to,
Indemnitee’s Corporate Status.

       

      “Corporate
Status” means the status of a person who is, becomes or was a director, officer,
employee, agent or fiduciary of the Company or is, becomes or was serving at the
request of the Company as a director, officer, partner, member, venturer,
proprietor, trustee, employee, agent, fiduciary or similar functionary of
another foreign or domestic corporation, partnership, limited liability company,
joint venture, sole proprietorship, trust, employee benefit plan or other
enterprise. For purposes of this Agreement, the Company agrees that Indemnitee’s
service on behalf of or with respect to any Subsidiary of the Company shall be
deemed to be at the request of the Company.

       

      “Disinterested
Director” with respect to any request by Indemnitee for indemnification
hereunder, means a director of the Company who at the time of the vote is not a
named defendant or respondent in the Proceeding or threatened to be so named in
respect of which indemnification is sought by Indemnitee.

       

      “Exchange
Act” means the Securities Exchange Act of 1934.

       

      “Expenses”
means all attorneys’ fees and disbursements, accountant’s fees and
disbursements, retainers, court costs, transcript costs, fees and expenses of
experts, witness fees and expenses, travel expenses, duplicating costs, printing
and binding costs, telephone charges, postage, delivery service fees and all
other disbursements, costs or expenses of the types customarily incurred in
connection with prosecuting, defending (including affirmative defenses and
counterclaims), preparing to prosecute or defend, investigating, being or
preparing to be a witness in, or participating in or preparing to participate in
(including on appeal) a Proceeding and all interest or finance charges
attributable to any thereof. Should any payments by the Company under this
Agreement be determined to be subject to any federal, state or local income or
excise tax, “Expenses” shall also include such amounts as are necessary to place
Indemnitee in the same after-tax position (after giving effect to all applicable
taxes) as Indemnitee would have been in had no such tax been determined to apply
to such payments.

       

      “Incumbent
Board” means the individuals who, as of the date of this Agreement, constitute
the Board and any other individual who becomes a director of the Company after
that date and whose election or appointment by the Board or nomination for
election by the Company’s stockholders was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office occurs
as a result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Incumbent
Board.

       

      
        
           


        

        
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      “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither contemporaneously is, nor in the five
years theretofore has been, retained to represent: (a) the Company or Indemnitee
in any matter material to either such party (other than as Independent Counsel
under this Agreement or similar agreements), (b) any other party to the
Proceeding giving rise to a claim for indemnification hereunder or (c) the
beneficial owner, directly or indirectly, of securities of the Company
representing 5% or more of the combined voting power of the Company’s then
outstanding voting securities (other than, in each such case, with respect to
matters concerning the rights of Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements). 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.

       

      “Independent
Directors” means the directors on the Board that are independent directors as
defined in Section 803A of the NYSE Amex Company Guide or successor provision,
or, if the Company’s common stock is not then quoted on the NYSE Amex, that
qualify as independent, disinterested, or a similar term as defined in the rules
of the principal securities exchange or interdealer quotation system on which
the Company’s common stock is then listed or quoted.

       

      “MBCA”
means the Michigan Business Corporation Act and any successor statute thereto,
as either of them may from time to time be amended.

       

      “Person”
means any individual, entity or group (within the meaning of Sections 13(d)(3)
and 14(d)(2) of the Exchange Act).

       

       “Proceeding”
means any threatened, pending or completed action, suit, arbitration,
investigation, inquiry, alternate dispute resolution mechanism, administrative
or legislative hearing, or any other proceeding (including, without limitation,
any securities laws action, suit, arbitration, alternative dispute resolution
mechanism, hearing or procedure) whether civil, criminal, administrative,
arbitrative or investigative and whether or not based upon events occurring, or
actions taken, before the date hereof; and any appeal in or related to any such
action, suit, arbitration,  hearing or proceeding.

       

      “Subsidiary”
means, with respect to any Person, any corporation or other entity of which a
majority of the voting power of the voting equity securities or equity interest
is owned, directly or indirectly, by that Person.

       

      “Voting
Securities” means any securities that vote generally in the election of
directors, in the admission of general partners, or in the selection of any
other similar governing body.

       

      ARTICLE
II


       

      Services
by Indemnitee

       

      Indemnitee
is serving as a director of the Company. Indemnitee may from time to time also
agree to serve, as the Company may request from time to time, in another
capacity for the Company (including another officer or director position) or as
a director, officer, partner, member, venturer, proprietor, trustee, employee,
agent, fiduciary or similar functionary of another foreign or domestic
corporation, partnership, joint venture, limited liability company, sole
proprietorship, trust, employee benefit plan or other enterprise. Indemnitee and
the Company each acknowledge that they have entered into this Agreement as a
means of inducing Indemnitee to serve, or continue to serve, the Company in such
capacities. Indemnitee may at any time and for any reason resign from such
position or positions (subject to any other contractual obligation or any
obligation imposed by operation of law). The Company shall have no obligation
under this Agreement to continue Indemnitee in any such position or
positions.

       

      
        
           


        

        
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      ARTICLE
III


       

      Indemnification

       

      Section
3.1      General. The
Company shall indemnify and advance Expenses to, Indemnitee to the fullest
extent permitted by applicable law in effect on the date hereof and to such
greater extent as applicable law may hereafter from time to time permit. The
other provisions set forth in this Agreement are provided as a means of
furtherance and implementation of, and not in limitation of, the obligations
expressed in this Article III. No requirement, condition to or limitation of any
right to indemnification or to advancement of Expenses under this Article III
shall in any way limit the rights of Indemnitee under Article VI.

       

      Section
3.2      Indemnity of the
Company.
Indemnitee shall be entitled to indemnification pursuant to this Section 3.2 if,
by reason of anything done or not done by Indemnitee in, or by reason of any
event or occurrence related to, Indemnitee’s Corporate Status, Indemnitee is,
was or becomes, or is threatened to be made, a party to, any Proceeding.
Pursuant to this Section 3.2, Indemnitee shall be indemnified against any and
all Expenses, judgments, penalties (including excise or similar taxes), fines
and amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of any such Expenses,
judgments, penalties, fines and amounts paid in settlement) actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with
such Proceeding or any Claim, issue or matter therein. Notwithstanding the
foregoing, the obligations of the Company under this Section 3.2 shall be
subject to the condition that no determination (which, in any case in which
Independent Counsel is involved, shall be in a form of a written opinion) shall
have been made pursuant to Article IV that Indemnitee would not be permitted to
be indemnified under applicable law. In addition, in an action by or in the
right of the Company, indemnification shall be limited as set forth in Section
561 of the MBCA except to the extent authorized under Section 564c of the
MBCA.  Nothing in this Section 3.2 shall limit the benefits of Section
3.1, Section 3.3 or any other Section hereunder.

       

      Section
3.3    Advancement of
Expenses. The
Company shall pay all Expenses reasonably incurred by, or in the case of
retainers to be incurred by, or on behalf of Indemnitee (or, if applicable,
reimburse Indemnitee for any and all Expenses reasonably incurred by Indemnitee
and previously paid by Indemnitee) in connection with any Claim or Proceeding,
whether brought by the Company or otherwise, in advance of any determination
respecting entitlement to indemnification pursuant to Article IV hereof (and
shall continue to pay such Expenses after such determination and until it shall
ultimately be determined (in a final adjudication by a court from which no
appeal is taken or in a final adjudication of an arbitration pursuant to
Sections 5.1 or 5.3 if Indemnitee or Company respectively elects to seek such
arbitration) that Indemnitee is not entitled to be indemnified by the Company
against such Expenses) within 10 days after the receipt by the Company of a
written request from Indemnitee requesting such payment or payments from time to
time, whether prior to or after final disposition of such Proceeding. Any such
payment by the Company is referred to in this Agreement as an “Expense Advance.”
In connection with any request for an Expense Advance, if requested by the
Company, Indemnitee or Indemnitee’s counsel shall also submit an affidavit
stating that the Expenses incurred were, or in the case of retainers to be
incurred are, reasonably incurred. Any question as to the reasonableness of the
incurrence of any Expense shall not delay an Expense Advance by the Company, and
the Company agrees that any such question shall be resolved in a final
adjudication by a court from which no appeal is taken or in a final adjudication
of an arbitration pursuant to Sections 5.1 or 5.3 if Indemnitee or Company
respectively elects to seek such arbitration. Indemnitee hereby undertakes and
agrees that Indemnitee will reimburse and repay the Company with interest for
any Expense Advances to the extent that it shall ultimately be determined (in a
final adjudication by a court from which no appeal is taken or in a final
adjudication of an arbitration pursuant to Sections 5.1 and 5.3 if Indemnitee or
the Company respectively elects to seek such arbitration) that Indemnitee is not
entitled to be indemnified by the Company against such Expenses. Indemnitee
shall not be required to provide collateral or otherwise secure the undertaking
and agreement described in the prior sentence. The Company shall make all
advances pursuant to this Section 3.3 without regard to the financial ability of
the Indemnitee to make repayment and without regard to the prospect of whether
the Indemnitee may ultimately be found to be entitled to indemnification under
the provisions of this Agreement.

       

      
        
           


        

        
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      Section
3.4     Indemnification for
Additional Expenses. The
Company shall, to the maximum extent permitted by law, indemnify Indemnitee
against any and all costs and expenses (of the types described in the definition
of Expenses in Article I) and, if requested by Indemnitee, shall advance those
costs and expenses to Indemnitee, that are incurred by Indemnitee in connection
with any claim asserted against, or action brought by, Indemnitee for
enforcement of, or claims for breaches of, any provision of this Agreement,
regardless of whether Indemnitee ultimately is determined to be entitled to that
enforcement, and regardless of whether the nature of the proceeding with respect
to such matter is judicial, by arbitration, or otherwise.

       

      Section
3.5    Partial
Indemnity. If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the Expenses, judgments, fines,
penalties, and amounts paid in settlement of a Claim or Proceeding but not,
however, for all of the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
Moreover, notwithstanding any other provision of this Agreement, to the extent
that Indemnitee has been successful on the merits or otherwise in defense of any
or all Claims or Proceedings, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.

       

      
        
           


        

        
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      ARTICLE
IV


       

      Procedure
for Determination of Entitlement

      to
Indemnification

       

      Section
4.1      Request by
Indemnitee. 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 (including for all purposes of the Agreement whether the
indemnification is reasonable). The Secretary or an Assistant Secretary of the
Company shall, promptly upon receipt of such a request for indemnification,
advise the Board in writing that Indemnitee has requested
indemnification.

       

      Section
4.2      Determination of
Request. Upon
written request by Indemnitee for indemnification pursuant to the first sentence
of Section 4.1 hereof; a determination, if required by applicable law, with
respect to whether Indemnitee is permitted under applicable law to be
indemnified shall be made in accordance with the terms of MBCA, in the specific
case in any of the following ways:

       

      (a)           
(i) by a majority vote of a quorum of the Board consisting of Disinterested
Directors, or (ii) if a quorum cannot be obtained under subdivision (i), by a
majority vote of a committee consisting solely of two or more Disinterested
Directors designated to act by the Board even though less than a quorum of the
Board, or  (iii) by all independent directors as defined under the
MBCA who are Disinterested Directors, or (iv) in a written opinion to the Board
and Indemnitee by Independent Counsel selected by a committee of the Board by a
vote as set forth in clauses (i) and (ii) of this paragraph (a), or if a quorum
of the Board cannot be obtained under subdivision (i) and a committee cannot be
established under subdivision (ii), by a majority vote of all directors, or (v)
by the stockholders of the Company in a vote that excludes the shares held by
directors who are not Disinterested Directors and officers, employees and agents
who are named defendants or respondents in the Proceeding or threatened to be so
named.  In the designation of a committee under subdivision (ii) or in
the selection of independent counsel, all Directors may
participate.

       

      (b)           If
a determination has been made pursuant to subsection (a) above, that indemnity
is permitted under applicable law to be indemnified, the authorization of
payment of indemnification shall be made in any of the following
ways:

       

      
        	
                 
      

              	
                (1)

              	
                By
      the Board in one of the following
ways:

              


      

       

      
        	
                 
      

              	
                (i)

              	
                By
      majority vote of two or more Directors who are Disinterested
      Directors.

              


      

      
        	
                 
      

              	
                (ii)

              	
                By
      a majority of the members of a committee of two or more Disinterested
      Directors.

              


      


      
        
           


        

        
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                (iii)

              	
                By
      one or more independent directors as defined under the MBCA who are
      Disinterested Directors.

              


      

      
        	
                 
      

              	
                (iv)

              	
                If
      there are no independent directors as defined under the MBCA and less than
      two Directors who are Disinterested Directors, then by the Board by
      majority vote.

              


      

       

      
        	
                 
      

              	
                (2)

              	
                By
      the stockholders of the Company in a vote that excludes the shares held by
      Directors who are not Disinterested Directors and officers, employees and
      agents who are named defendants or respondents in the Proceedings or
      threatened to be so named.

              


      

       

      If it is
so determined that Indemnitee is permitted to be indemnified and payment is
authorized under applicable law, payment to Indemnitee shall be made within 10
days after such determination. Nothing contained in this Agreement shall require
that any determination be made under this Section 4.2 prior to the disposition
or conclusion of a Claim or Proceeding against Indemnitee; provided, however,
that Expense Advances shall continue to be made by the Company pursuant to, and
to the extent required by, the provisions of Article III. Indemnitee shall
cooperate with the person or persons making such determination with respect to
Indemnitee’s entitlement to indemnification, including providing to such person
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 with the person or persons making such
determination shall be borne by the Company (irrespective of the determination
as to Indemnitee’s entitlement to indemnification).

       

      Section
4.3                      Presumptions and Effect of
Certain Proceedings.

       

      (a)           If
the person or persons empowered or selected under Article IV of this Agreement
to determine whether Indemnitee is entitled to indemnification shall not have
made a determination within 60 days after receipt by the Company of the request
by Indemnitee therefor, the determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification; provided, however, that such 60-day period may be extended for
a reasonable time, not to exceed an additional 30 days, if the person 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 to such determination; and provided, further, that
the 60-day limitation set forth in this Section 4.3(a) shall not apply and such
period shall be extended as necessary (1) if within 30 days after receipt by the
Company of the request for indemnification under Section 4.1 Indemnitee and the
Company have agreed, and the Board has resolved to submit such determination to
the stockholders of the Company pursuant to Section 4.2(b) for their
consideration at an annual meeting of stockholders to be held within 90 days
after such agreement and such determination is made thereat, or a special
meeting of stockholders is called within 30 days after such receipt for the
purpose of making such determination, such meeting is held for such purpose
within 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 4.2(a) of this Agreement, in
which case the applicable period shall be as set forth in Section
5.1(c).  Nothing contained in this Agreement shall require that any
determination be made under this Section 4.3 prior to the disposition or
conclusion of a Claim or Proceeding against Indemnitee; provided, however, that
Expense Advances shall continue to be made by the Company pursuant to, and to
the extent required by, the provisions of Article III.

       

      
        
           


        

        
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      (b)           Other
than an action by or in the right of the Company, the termination of any
Proceeding or of any Claim issue or matter by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of nolo
contendere or its equivalent, shall not (except as otherwise expressly provided
in this Agreement) by itself create a presumption that the person did not act in
good faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Company or its shareholders, and, with
respect to a criminal action or proceeding, had reasonable cause to believe that
his or her conduct was unlawful.

       

      ARTICLE
V


       

      Certain
Remedies of Indemnitee

       

      Section
5.1    Indemnitee Entitled to
Adjudication in an Appropriate Court. If (a)
a determination is made pursuant to Article IV that Indemnitee is not entitled
to indemnification under this Agreement; (b) there has been any failure by the
Company to make timely payment or advancement of any amounts due hereunder
(including, without limitation, any Expense Advances); or (c) the determination
of entitlement to indemnification is to be made by Independent Counsel pursuant
to Section 4.2 and such determination shall not have been made and delivered in
a written opinion within 90 days after such Independent Counsel’s being
appointed, Indemnitee shall be entitled to commence an action seeking an
adjudication in the Court of Indemnitee’s entitlement to such indemnification or
advancements due hereunder, including, without limitation, Expense Advances.
Alternatively, 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. Indemnitee shall
commence such action seeking an adjudication or an award in arbitration within
180 days following the date on which Indemnitee first has the right to commence
such action pursuant to this Section 5.1, or such right shall expire. The
Company agrees not to oppose Indemnitee’s right to seek any such adjudication or
award in arbitration and it shall continue to pay Expense Advances pursuant to
Section 3.3 until it shall ultimately be determined (in a final adjudication by
a court from which no appeal is taken or in a final adjudication of an
arbitration pursuant to this Section 5.1 if Indemnitee elects to seek such
arbitration) that Indemnitee is not entitled to be indemnified by the Company
against such Expenses.

       

      Section
5.2     Adverse Determination Not to
Affect any Judicial Proceeding. If a
determination shall have been made pursuant to Article IV that Indemnitee is not
entitled to indemnification under this Agreement, any judicial proceeding or
arbitration commenced pursuant to this Agreement 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 such initial adverse determination.

       

      
        
           


        

        
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      Section
5.3    Company May Seek Judicial
Proceeding or Arbitration. If a
determination shall have been made or deemed to have been made pursuant to
Article IV that Indemnitee is or is not entitled to indemnification, the Company
shall be entitled to commence an action seeking an adjudication in court or
arbitration of Indemnitee’s entitlement to such indemnification or advancements
due hereunder, including, without limitation, Expense Advances. Arbitration may
be conducted by a single arbitrator pursuant to the commercial arbitration rules
of the American Arbitration Association. Company shall commence such action
seeking an adjudication or arbitration within 180 days following the date on
which the determination shall have been made or deemed to have been made
pursuant to Article IV that Indemnitee is entitled to indemnification, or such
right shall expire. Indemnitee agrees not to oppose Company’s right to seek any
such adjudication or award in arbitration.  Any judicial proceeding or
arbitration commenced pursuant to this Agreement shall be conducted in all
respects as a de novo trial or arbitration on the merits, and Company shall not
be prejudiced by reason of such initial determination.

       

      Section
5.4     Company and Indemnitee Bound
by the Agreement. The
Company and Indemnitee shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Article V that the
procedures of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that the Company and
Indemnitee are bound by all the provisions of this Agreement.

       

      ARTICLE
VI


       

      Miscellaneous

       

      Section
6.1   Non-Exclusivity. No
amendment or alteration of the charter or bylaws of the Company or any provision
thereof shall adversely affect Indemnitee’s rights hereunder and such rights
shall be in addition to any rights Indemnitee may have under the charter, bylaws
and the MBCA or other applicable law. To the extent that there is a change in
the MBCA or other applicable law (whether by statute or judicial decision) that
allows greater indemnification by agreement than would be afforded currently
under the Company’s charter or bylaws and this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by virtue of this Agreement the
greater benefit so afforded by such change. Any amendment, alteration or repeal
of the MBCA that adversely affects any right of Indemnitee shall be prospective
only and shall not limit or eliminate any such right with respect to any
Proceeding involving any occurrence or alleged occurrence of any action or
omission to act that took place before such amendment or repeal.

       

      Section
6.2    Insurance and
Subrogation.

       

      (a)           To
the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, agents or fiduciaries of
the Company or for individuals serving at the request of the Company as
directors, officers, partners, members, venturers, proprietors, trustees,
employees, agents, fiduciaries or similar functionaries of another foreign or
domestic corporation, partnership, limited liability company, joint venture,
sole proprietorship, trust, employee benefit plan or other enterprise,
Indemnitee shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for any such
director, officer, employee, agent or fiduciary under such policy or
policies.

       


      
        
           


        

        
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      (b)           In
the event of any payment by the Company under this Agreement for which
reimbursement is available under any insurance policy or policies obtained by
the Company, the Company shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee under such insurance policy or
policies, 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, provided that all
Expenses relating to such action shall be borne by the Company.

       

      (c)           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 the Company’s charter or bylaws
or any insurance policy, contract, agreement or otherwise.

       

      (d)           Following
the execution of this Agreement, the Company will attempt to procure as soon as
practicable and on commercially reasonable terms, an additional $5 million in
D&O insurance from a reputable, highly rated carrier covering only the
Company’s Independent Directors. Indemnitee understands and agrees that because
of the Company’s current situation, it may not be practical or commercially
feasible to obtain such insurance on commercially reasonable terms in the near
future and until its situation significantly improves.

       

      (e)           If
Indemnitee is a director of the Company, the Company will advise the Board of
any proposed material reduction in the coverage for directors to be provided by
the Company’s directors’ and officers’ liability insurance policy, and will not
effect such a reduction with respect to directors without the prior approval of
at least 80% of the Independent Directors of the Company.

       

      (f)           If
Indemnitee is a director of the Company during the term of this Agreement and if
Indemnitee ceases to be a director of the Company for any reason, the Company
shall attempt to procure as soon as practicable and on commercially reasonable
terms, a run-off directors’ and officers’ liability insurance policy with
respect to claims arising from facts or events that occurred before the time
Indemnitee ceased to be a director of the Company and covering Indemnitee, which
policy, without any lapse in coverage, will provide coverage for a period of six
years after the time Indemnitee ceased to be a director of the Company and will
provide coverage (including amount and type of coverage and size of deductibles)
that are substantially comparable to the Company’s directors’ and officers’
liability insurance policy that was most protective of Indemnitee in the 12
months preceding the time Indemnitee ceased to be a director of the Company;
provided, however, that:

       

      (i)           this
obligation shall be suspended during the period immediately following the time
Indemnitee ceases to be a director of the Company if and only so long as the
Company has a directors’ and officers’ liability insurance policy in effect
covering Indemnitee for such claims that, if it were a run-off policy, would
substantially meet or exceed the foregoing standards; and

       

      
        
           


        

        
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      (ii)           no
later than the end of the suspension period provided in the preceding clause
(i), the Company shall procure a run-off directors’ and officers’ liability
insurance policy meeting the foregoing standards and lasting for the remainder
of the six-year period.

       

      Indemnitee
understands and agrees that because of the Company’s current situation, it may
not be practical or commercially feasible to obtain such run-off directors’ and
officers’ liability insurance policy on commercially reasonable terms in the
near future and until its situation significantly improves.

       

      Section
6.3     Certain Settlement
Provisions. The
Company shall have no obligation to indemnify Indemnitee under this Agreement
for amounts paid in settlement of a Proceeding or Claim without the Company’s
prior written consent or if such indemnification is prohibited under the MBCA.
The Company shall not settle any Proceeding or Claim in any manner that would
impose any fine or other obligation on Indemnitee without Indemnitee’s prior
written consent. Neither the Company nor Indemnitee shall unreasonably withhold
their consent to any proposed settlement.

       

      Section
6.4    Duration of
Agreement. This
Agreement shall continue for so long as Indemnitee serves as a director,
officer, employee, agent or fiduciary of the Company or, at the request of the
Company, as a director, officer, partner, member, venturer, proprietor, trustee,
employee, agent, fiduciary or similar functionary of another foreign or domestic
corporation, partnership, limited liability company, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise, and thereafter
shall survive until and terminate upon the later to occur of: (a) the final
termination of all pending Proceedings in respect of which Indemnitee is granted
rights of indemnification or advancement of Expenses hereunder and of any
proceeding commenced by Indemnitee pursuant to Article IV relating thereto; or
(b) the expiration of all statutes of limitation applicable to possible Claims
arising out of Indemnitee’ s Corporate Status.

       

      Section
6.5     Notice by Each
Party.
Indemnitee shall promptly notify the Company in writing upon being served with
any summons, citation, subpoena, complaint, indictment information or other
document or communication relating to any Proceeding or Claim for which
Indemnitee may be entitled to indemnification or advancement of Expenses
hereunder; provided, however, that any failure of Indemnitee to so notify the
Company shall not adversely affect Indemnitee’s rights under this Agreement
except to the extent the Company shall have been materially prejudiced as a
direct result of such failure. The Company shall promptly notify Indemnitee in
writing as to the pendency of any Proceeding or Claim that may involve a claim
against Indemnitee for which Indemnitee may be entitled to indemnification or
advancement of Expenses hereunder.

       

      Section
6.6    Amendment. This
Agreement may not be modified or amended except by a written instrument executed
by or on behalf of each of the parties hereto.

       

      
        
           


        

        
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      Section
6.7   Waivers. The
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) by the party
entitled to enforce such term only by a writing signed by the party against
which such waiver is to be asserted. Unless otherwise expressly provided herein,
no delay on the part of any party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party hereto of any right, power or privilege hereunder operate
as a waiver of any other right, power or privilege hereunder nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder.

       

      Section
6.8    Entire
Agreement. This
Agreement and the documents expressly referred to herein constitute the entire
agreement between the parties hereto with respect to the matters covered hereby,
and any other prior or contemporaneous oral or written understandings or
agreements with respect to the matters covered hereby, including without
limitation any prior indemnification agreements, are expressly superseded by
this Agreement.

       

      Section
6.9   Severability. If any
provision of this Agreement (including any provision within a single section,
paragraph or sentence) or the application of such provision to any Person or
circumstance, shall be judicially declared to be invalid, unenforceable or void,
such decision will not have the effect of invalidating or voiding the remainder
of this Agreement or affect the application of such provision to other Persons
or circumstances, it being the intent and agreement of the parties that this
Agreement shall be deemed amended by modifying such provision to the extent
necessary to render it valid, legal and enforceable while preserving its intent,
or if such modification is not possible, by substituting therefor another
provision that is valid, legal and unenforceable and that achieves the same
objective. Any such finding of invalidity or unenforceability shall not prevent
the enforcement of such provision in any other jurisdiction to the maximum
extent permitted by applicable law.

       

      Section
6.10   Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed given upon (a) transmitter’s confirmation of a receipt of a facsimile
transmission if during normal business hours of the recipient, otherwise on the
next business day, (b) confirmed delivery of a standard overnight courier or
when delivered by hand or (c) the expiration of five business days after the
date mailed by certified or registered mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other addresses
for a party as shall be specified by like notice):

       

      If to the
Company, to it at:     1150 Elijah McCoy
Drive

      
        	
                Detroit,
      MI 48226

              
	
                Attn:   Jitendra
      N. Doshi, Chief Executive Officer

              


      

       

      If to
Indemnitee, to Indemnitee at:    5528 Nakoma

      
        	
                Dallas,
      TX 75209

              
	
                Attn:   F.
      Folsom Bell

              


      

       

      
        
           


        

        
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      or to
such other address or to such other individuals as any party shall have last
designated by notice to the other parties. All notices and other communications
given to any party in accordance with the provisions of this Agreement shall be
deemed to have been given when delivered or sent to the intended recipient
thereof in accordance with and as provided in the provisions of this Section
6.10.

       

      Section
6.11                      Governing
Law. This
Agreement shall be construed in accordance with and enforced and governed by the
laws of the State of Michigan without regard to the principles of conflict of
laws.

       

      Section
6.12                      Certain Construction
Rules.

       

      (a)           The
article and section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. As used in this Agreement, unless otherwise provided to the
contrary, (1) all references to days shall be deemed references to calendar days
and (2) any reference to a “Section” or “Article” shall be deemed to refer to a
section or article of this Agreement. The words “hereof,” “herein” and
“hereunder” and words of similar import referring to this Agreement refer to
this Agreement as a whole and not to any particular provision of this Agreement,
Whenever the words “include,” “includes” or “including” are used in this
Agreement, they shall be deemed to be followed-by the words “without
limitation.” Unless otherwise specifically provided for herein, the term “or”
shall not be deemed to be exclusive. Whenever the context may require, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa.

       

      (b)           For
purposes of this Agreement, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes
assessed on a person with respect to any employee benefit plan; references to
“serving at the request of the Company” shall include any service as a director,
officer, employee or agent of the Company which imposes duties on, or involves
services by, such director, nominee, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner the person reasonably believed to be in the
interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner “not opposed to the best interest of
the Company” for purposes of this Agreement and the MBCA.

       

      Section
6.13  Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which together shall be deemed to be one and
the same instrument, notwithstanding that both parties are not signatories to
the original or same counterpart.

       

      Section
6.14  Certain Persons Not Entitled
to Indemnification. The
Company shall not be obligated pursuant to the terms of this Agreement to
indemnify Indemnitee for the payment to the Company of profits pursuant to
Section 16(b) of the Exchange Act, or Expenses incurred by Indemnitee for
Proceedings in connection with such payment under Section 16(b) of the Exchange
Act.

       

      
        
           


        

        
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      Section
6.15   Indemnification for
Negligence, Gross Negligence, etc. Without
limiting the generality of any other provision hereunder, it is the express
intent of this Agreement that Indemnitee be indemnified and Expenses be advanced
regardless of Indemnitee’s acts of negligence or gross negligence, intentional
or willful misconduct, to the extent that indemnification and advancement of
Expenses is allowed pursuant to the terms of this Agreement and under applicable
law.

       

      Section
6.16   Mutual
Acknowledgments. Both
the Company and Indemnitee acknowledge that in certain instances, applicable law
(including applicable federal law that may preempt or override applicable state
law) or public policy may prohibit the Company from indemnifying the directors,
officers, employees, agents or fiduciaries of the Company under this Agreement
or otherwise. For example, the Company and Indemnitee acknowledge that the U.S.
Securities and Exchange Commission has taken the position that indemnification
of directors, officers and controlling Persons of the Company for liabilities
arising under federal securities laws is against public policy and, therefore,
unenforceable. Indemnitee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the Securities and
Exchange Commission to submit the question of indemnification to a court in
certain circumstances for a determination of the Company’s right under public
policy to indemnify Indemnitee. In addition, the Company and Indemnitee
acknowledge that federal law prohibits indemnifications for certain violations
of the Employee Retirement Income Security Act of 1974, as amended.

       

      Section
6.17  Enforcement. The
Company and Indemnitee agree that their respective execution of this Agreement
shall constitute a stipulation by which each shall be irrevocably bound in any
Michigan court or arbitration pursuant to Section 6.19 in which a proceeding by
Indemnitee for enforcement of Indemnitee’s rights or a proceeding by Company
against Indemnitee hereunder shall have been commenced, continued or appealed,
that their respective obligations set forth in this Agreement are unique and
special, and that failure of the Company or Indemnitee, as applicable, to comply
with the provisions of this Agreement will cause irreparable and irremediable
injury to Indemnitee and Company, respectively, for which a remedy at law will
be inadequate. As a result, in addition to any other right or remedy Company or
Indemnitee may have at law or in equity with respect to breach of this
Agreement, Company and Indemnitee shall be entitled to injunctive or mandatory
relief directing specific performance by the Company or Indemnitee, as
applicable, of their respective obligations under this Agreement. The Company
and Indemnitee each agree not to seek, and agrees to waive any requirement for
the securing or posting of, a bond in connection with the other’s seeking or
obtaining such relief:

       

      Section
6.18   Successors and
Assigns. All of
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the parties hereto and their
respective successors, assigns, heirs, executors, administrators, legal
representatives.

       

      Section
6.19   Consent to Jurisdiction.
Company and Indemnitee hereby submit to the exclusive jurisdiction of the
courts of the State of Michigan or arbitration in the State of Michigan in
respect of the interpretation and enforcement of the provisions of this
Agreement, and hereby waive, and agree not to assert, as a defense in any
action, suit or proceeding for the interpretation or enforcement of this
Agreement, that they are not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in such court or
arbitration, that the suit, action or proceeding is brought in an inconvenient
forum, or that the venue of the suit, action or proceeding is
improper.  Service of process with respect thereto may be made upon
Company and Indemnitee by mailing a copy thereof by registered or certified
mail, postage prepaid, to such party at its address provided in Section 6.10
hereof.

       

      
        
           


        

        
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      IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered to be
effective as of the date first above written.

       

      
        	 
      	
                INDEMNITEE:

              
	 
      	 
      
	 
      	 
      
	 
      	
                /s/ F. Folsom Bell

              
	 
      	
                F.
      Folsom Bell

              
	 
      	 
      
	 
      	 
      
	 
      	
                COMPANY:

              
	 
      	 
      
	 
      	
                By:   /s/ Jitendra N.
      Doshi

              
	 
      	
                        Jitendra
      N. Doshi

              
	 
      	
                Its:   Chief
      Executive Officer

              


      

       

       

    

    15