Exhibit 10
THE C. R. GIBSON COMPANY
Form of Indemnification Agreement
INDEMNIFICATION AGREEMENT dated as of July 14, 1995, between
THE C. R. GIBSON COMPANY, a Delaware corporation (the "COMPANY"), and
[NAME OF DIRECTOR] (the "INDEMNITEE").
Section 145 of the Delaware General Corporation Law empowers
corporations to indemnify persons serving as a director, officer,
employee or agent of such corporation or persons who serve at the
request of such corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, and Section 145(f) of such law further specifies that the
indemnification set forth in said Section shall not be deemed exclusive
of any other rights to which those seeking indemnification may be
entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
The Company desires to have the Indemnitee serve or continue to
serve as an officer and/or director of the Company free from undue
concern for unpredictable, inappropriate or unreasonable claims for
damages by reason of the Indemnitee's being an officer and/or director
of the Company or by reason of the Indemnitee's decisions or actions on
its behalf; and the Indemnitee desires to serve, or to continue to
serve, in such capacity. Accordingly, in consideration of the
Indemnitee's serving or continuing to serve as an officer and/or
director of the Company, the parties agree as follows:
1. INDEMNIFICATION. (a) The Company shall indemnify, defend
and hold harmless the Indemnitee against all expenses, losses, claims,
damages and liabilities, including, without limitation, attorneys' fees,
judgments, fines and amounts paid in settlement (all such expenses,
collectively, "COSTS"), actually and reasonably incurred by the
Indemnitee in connection with the investigation, defense or appeal of
any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, to which the
Indemnitee is a party or threatened to be made a party (all such
actions, collectively, "PROCEEDINGS") (i) by reason of the fact that the
Indemnitee is or was a director, officer, employee or agent of the
Company or of any other corporation, partnership, joint venture, trust
or other enterprise (collectively, "AFFILIATES") of which the Indemnitee
has been or is serving at the request of, for the convenience of or to
represent the interest of the Company or (ii) by reason of anything done
or not done by the Indemnitee in any such capacity referred to in the
foregoing clause (i). Notwithstanding the foregoing, "Costs" shall not
include any amounts for which the Indemnitee is actually
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indemnified pursuant to any directors and officers liability insurance
or otherwise than pursuant to this Agreement.
2. CULPABLE ACTION.
(a) Notwithstanding the provisions of Section 1., the
Indemnitee shall not be entitled to indemnification if the Indemnitee
failed to act in good faith and in a manner the Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company
and, with respect to any criminal action or proceeding, the Indemnitee
had no reasonable cause to believe the Indemnitee's conduct was unlawful
(any such action, a "CULPABLE ACTION").
(b) The existence or occurrence of a Culpable Action shall be
conclusively determined by (i) a non-appealable, final decision of the
court having jurisdiction over the applicable Proceeding or (ii) a non-
appealable, final decision of the Court of Chancery of the State of
Delaware (or if such a decision is appealable, by the court in such
State which has jurisdiction to render a non-appealable, final
decision). Such determination shall be final and binding upon the
parties hereto.
(c) If a Proceeding involves more than one claim, issue or
matter, the determination as to whether there exists or has occurred a
Culpable Action shall be severable as to each and every claim, issue and
matter.
(d) The termination of any Proceeding by judgment, order,
settlement or conviction, or upon a plea of NOLO CONTENDRE or its
equivalent does not change the presumption of Section 2. that the
Indemnitee is entitled to indemnification hereunder and does not create
a presumption that there exists a Culpable Action.
3. PAYMENT OF COSTS. The Costs incurred by the Indemnitee in
connection with any Proceeding, including any Proceeding brought
pursuant to Section 2.(b), shall be paid by the Company on an "as
incurred" basis; PROVIDED, HOWEVER, that if it shall ultimately be
determined that there exists or has occurred a Culpable Action with
respect to such Proceeding, the Indemnitee shall repay to the Company
the amount (or the appropriate portion thereof as contemplated by
Section 2.(d)) so advanced, including the costs of obtaining a
determination pursuant to Section 2.(b).
4. NOTICE TO THE COMPANY BY THE INDEMNITEE; DEFENSE OF
PROCEEDING; SETTLEMENT.
(a) The Indemnitee shall give to the Company notice in writing
as soon as practicable of any Proceeding for which indemnity will or
could be sought under this Agreement; PROVIDED, HOWEVER, that the
failure by the Indemnitee to give notice as
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provided herein shall not relieve the Company of its obligations
hereunder except to the extent that the Company is actually prejudiced
by such failure to give notice; PROVIDED, FURTHER, that the failure by
the Indemnitee to give notice as provided herein shall not relieve the
Company from any liability it might have to the Indemnitee otherwise
than under this Agreement.
(b) With respect to any Proceeding as to which the Indemnitee
has given notice pursuant to Section 4.(a) hereof, the Company shall
have the right to participate therein and to assume the defense thereof;
PROVIDED, that the Company shall not be entitled to assume the defense
of any Proceeding (i) brought by or on behalf of the Company or (ii) as
to which independent counsel for the Company shall have concluded that
there may be a conflict of interest between the Company and the
Indemnitee in the conduct of the defense of such Proceeding.
(c) The Company shall not be liable to the Indemnitee pursuant
to this Agreement for any amounts paid in settlement of any Proceeding
unless the Company gives its written approval of such settlement. The
Company shall not settle any proceeding in any manner that would impose
any penalty or limitation on the Indemnitee without the Indemnitee's
written consent. Neither the Company nor the Indemnitee shall
unreasonably withhold approval of, or consent to, any proposed
settlement.
5, SEVERABILITY. If any provision of this Agreement shall be
determined to be illegal and unenforceable by any court of law, the
remaining provisions shall be severable and enforceable in accordance
with their terms.
6. NO RIGHT TO EMPLOYMENT OR DIRECTORSHIP. This Agreement
shall not entitle the Indemnitee to any right or claim to be retained as
an employee, officer and/or director of the Company or limit the right
of the Company to terminate the employment, officership and/or
directorship of the Indemnitee or to change the terms of such
employment, officership and/or directorship.
7. OTHER RIGHTS AND REMEDIES. This Agreement shall not be
deemed exclusive as to any other non-contractual rights to
indemnification to which the Indemnitee may be entitled under any
provision of law, the Certificate of Incorporation of the Company, any
By-law of the Company or otherwise.
8. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, and each such counterpart shall be deemed to be
an original instrument, but all such counterparts together shall
constitute but one agreement.
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9. DESCRIPTIVE HEADINGS. Descriptive headings are for
convenience only and shall not control or affect the meaning or
construction or any provision of this Agreement.
10. MODIFICATION. This Agreement shall not be altered or
otherwise amended except pursuant to an instrument in writing signed by
each of the parties.
11. NOTICES. All notices, requests, consents and other
communications hereunder to either party shall be deemed to be
sufficient if contained in a written instrument delivered in person or
by facsimile transmission with electronic confirmation of receipt or if
sent by air courier or first class registered or certified mail, postage
prepaid, addressed to such party at the address set forth below or such
other address as may hereafter be designated in writing by notice given
pursuant to this Section 11.:
(i) if to the Company, to
The C. R. Gibson Company
32 Knight Street
Norwalk, Connecticut 06856
Attention: President and Chief
Executive Officer
(ii) if to the Indemnitee, to:
[ADDRESS FOR DIRECTOR]
12. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the
benefit of the Indemnitee and his spouse, heirs, executors and
administrators.
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IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed as of the date first above written.
THE C. R. GIBSON COMPANY
By____________________________
Title:
___________________________
[NAME OF DIRECTOR]