EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
This Agreement is made as of the 5th day of March,
2004, by and among Graham Corporation, a Delaware corporation
(the "Company"), and the undersigned (the "Director") with
reference to the following facts:
The Director is currently serving as a member of the
Board of Directors of the Company (the "Board") and the Company
wishes the Director to continue in such capacity. The Director
is willing, under certain circumstances, to continue in such
capacity.
In addition to the indemnification to which the
Director is entitled pursuant to the Certificate of Incorporation
of the Company, and as additional consideration for the
Director's service, the Company has, in the past, furnished at
its expense directors' and officers' liability insurance
protecting the Director in connection with such service.
In order to induce the Director to continue to serve as
a member of the Board and in consideration for his continued
service, the Company hereby agrees to indemnify the Director as
follows:
1. The Company will pay on behalf of the Director and
his executors, administrators or assigns, any amount which he is
or becomes legally obligated to pay because of any claim or
claims made against him because of any act or omission or neglect
or breach of duty, including any actual or alleged error or mis
statement or misleading statement, which he commits or suffers
while acting in his capacity as a Director of the Company and
solely because of his being a Director. The payments which the
Company will be obligated to make hereunder shall include, inter
alia, damages, judgments, settlements and costs, cost of investi
gation (excluding salaries of officers or employees of the Compa
ny) and costs of defense of legal actions, claims or proceedings
and appeals therefrom, and costs of attachment or similar bonds;
provided however, that the Company shall not be obligated to pay
fines or other obligations or fees imposed by law or otherwise
which it is prohibited by applicable law from paying as indemnity
or for any other reason.
2. If a claim under this Agreement is not paid by the
Company, or on its behalf, within ninety days after a written
claim has been received by the Company, the claimant may at any
time thereafter bring suit against the Company to recover the
unpaid amount of the claim and if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of
prosecuting such claim.
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3. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all
of the rights of recovery of the Director, who shall execute all
papers required and shall 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 en
force such rights.
4. The Company shall not be liable under this Agree
ment to make any payment in connection with any claim made
against the Director;
(a) for which payment is actually made to the
Director under a valid and collectible insurance policy, except
in respect of any excess beyond the amount of payment under such
insurance;
(b) for which the Director is entitled to
indemnity and/or payment by reason of having given notice of any
circumstance which might give rise to a claim under any policy of
insurance, the terms of which have expired prior to the effective
date of this Agreement;
(c) for which the Director is indemnified by the
Company otherwise than pursuant to this Agreement;
(d) based upon or attributable to the Director
gaining in fact any personal profit or advantage to which he was
not legally entitled;
(e) for an accounting of profits made from the
purchase or sale by the Director of securities of the Company
within the meaning of Section 16(b) of the Securities Exchange
Act of 1934 and amendments thereto or similar provisions of any
state statute or common law; or
(f) brought about or contributed to by illegal or
dishonest conduct on the part of the Director seeking payment
hereunder; however, notwithstanding the foregoing, the Director
shall be protected under this Agreement as to any claims upon
which suit may be brought against him by reason of any alleged
dishonest conduct on his part, unless a judgment or other final
adjudication thereof adverse to the Director shall establish that
he committed (i) acts of active and deliberate dishonesty, (ii)
with actual dishonest purpose and intent, which acts were
material to the cause of action so adjudicated.
5. No costs, charges or expenses for which indemnity
shall be sought hereunder shall be incurred without the Company's
consent, which consent shall not be unreasonably withheld.
6. The Director, as a condition precedent to his
right to be indemnified under this Agreement, shall give to the
Company notice in writing as soon as practicable of any claim
made against him for which indemnity will or could be sought
under this Agreement. Notice to the Company shall be directed to
the Secretary of the Company at Graham Corporation, 20 Florence
Avenue, Batavia, New York 14020 (or to such other address as to
the Company may designate in writing to the Director); notice
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shall be deemed received if sent by prepaid mail properly
addressed, the date of such notice being the date postmarked. In
addition, the Director shall give the Company such information
and cooperation as it may reasonably require and as shall be
within the Director's power.
7. Costs and expenses (including attorneys' fees)
incurred by the Director in defending or investigating any
action, suit, proceeding or investigation shall be paid by the
Company as they are incurred in advance of the final disposition
of such matter; provided, however that the Director must pay to
the Company the amount of any such costs and expenses for which
the Director has been indemnified with respect to such matter, if
it is ultimately determined by a court of final adjudication that
the Director is not entitled to indemnification under the terms
of this Agreement. Notwithstanding the foregoing or any other
provision of this Agreement, no indemnification for costs and
expenses shall be made by the Company if a determination is
reasonably and promptly made (1) by the Board, by a majority vote
of a quorum of disinterested directors, or alternatively, (2) if
so directed by a majority vote of a quorum of disinterested direc
tors, by independent legal counsel; or (3) if a quorum of
disinterested directors is not obtainable, by independent legal
counsel, that, based upon the facts known to the Board or such
independent counsel at the time such determination is made, (a)
the Director acted in bad faith or in a manner that he or she did
not believe to be in or not opposed to the best interest of the
Company, or (b) with respect to any criminal proceeding, the
Director believed or had reasonable cause to believe his conduct
was unlawful, or (c) the Director deliberately breached his duty
to the Company or its stockholders.
8. In the event that the indemnification provided for
herein is held by a court of competent jurisdiction to be un
available to the Director in whole or part, the Company shall con
tribute to the payment of the Director's liabilities in an amount
that is just and equitable in the circumstances, taking into ac
count, among other things, payments by other directors and offi
cers of the Company for their respective liabilities in conse
quence of the event or events which gave rise to the Director's
liability. The Company and the Director agree that, in the
absence of personal enrichment, acts of intentional fraud or
dishonesty or criminal conduct on the part of the Director, it
would not be just and equitable for the Director to contribute to
the payment of Losses arising out of any action, suit, proceeding
or investigation in an amount greater than: (i) in a case where
the Director is a director of the Company, but not an officer of
the Company, the amount of fees paid to the Director for serving
as a director during the 12 months preceding the commencement of
such action, suit, proceeding or investigation; or (ii) in a case
where the Director is a director of the Company and is an officer
of the Company, the amount set forth in clause (i) plus 5% of the
aggregate cash compensation paid to the Director for service in
such office(s) during the 12 months preceding the commencement of
such action, suit, proceeding or investigation.
9. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
document.
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10. Nothing herein shall be deemed to diminish or oth
erwise restrict the Director's right to indemnification under any
provision of the certificate of incorporation or by-laws of the
Company or under Delaware law.
11. This Agreement shall be governed by and construed
in accordance with the law of the State of Delaware, without
regard to the conflict of laws provisions thereof.
12. This Agreement shall be binding upon all succes
sors and assigns of the Company (including any transferee of all
or substantially all of its assets and any successor by merger or
operation of law) and shall inure to the benefit of the heirs,
personal representatives and estate of Director.
13. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any
reason whatsoever (i) the remaining provisions of this Agreement
(including without limitation, all portions of any paragraphs of
this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not by themselves invalid,
illegal or unenforceable) shall 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) shall be
construed so as to give effect to the intent of the parties that
the Company provide protection to Director to the fullest enforce
able extent.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and signed as of the day and year
first above written.
GRAHAM CORPORATION
By:_____________________________
________________________________
Director