EXHIBIT 10(AA)
FORM OF DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
Goodrich Corporation ("Goodrich") entered into a Director and Officer
Indemnification Agreement identical to the form attached hereto with each of the
following Goodrich directors and executive officers on the dates indicated:
Date Name
---- ----
08/30/01 Diane C. Creel
08/30/01 George A. Davidson, Jr.
08/30/01 Harris E. DeLoach, Jr.
08/30/01 James J. Glasser
02/12/03 James W. Griffith
08/30/01 William R. Holland
08/30/01 Douglas E. Olesen
08/30/01 Richard de J. Osborne
08/30/01 Alfred M. Rankin, Jr.
08/30/01 James R. Wilson
08/30/01 A. Thomas Young
08/30/01 Marshall O. Larsen
08/30/01 Terrence G. Linnert
08/30/01 Ulrich Schmidt
08/30/01 Stephen R. Huggins
08/30/01 Jerry S. Lee
02/12/03 John J. Carmola
02/12/03 Cynthia M. Egnotovich
02/12/03 John J. Grisik
08/30/01 Robert D. Koney, Jr.
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DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, dated as of ___________ (this
"Agreement"), is made by and between Goodrich Corporation, a New York
corporation (the "Company"), and _______________ ("Indemnitee").
RECITALS
A. It is important to the Company to attract and retain as directors
and officers the most capable persons reasonably available.
B. Indemnitee is a director and/or officer of the Company.
C. Both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors and officers of
companies in today's environment.
D. The Company's By-laws (together with the Company's Restated
Certificate of Incorporation, the "Constituent Documents") provide that the
Company will indemnify its directors and officers and will advance expenses in
connection therewith, and Indemnitee's willingness to serve as a director and/or
officer of the Company, or at the Company's request to serve another entity in
any capacity, is based in part on Indemnitee's reliance on such provisions.
E. In recognition of Indemnitee's need for substantial protection
against personal liability in order to encourage Indemnitee's continued service
to the Company or, at the Company's request, another entity, in an effective
manner, and Indemnitee's reliance on the aforesaid provisions of the Constituent
Documents, and to provide Indemnitee with express contractual indemnification
(regardless of, among other things, any amendment to or revocation of such
provisions or any change in the composition of the Company's Board of Directors
(the "Board") or any acquisition, disposition or other business combination
transaction relating to the Company), the Company wishes to provide in this
Agreement for the indemnification of Indemnifiable Losses (as defined in Section
1(d)) and the advancement of Expenses (as defined in Section 1(c)) to Indemnitee
as set forth in this Agreement and, to the extent insurance is maintained, for
the continued coverage of Indemnitee under the Company's directors' and
officers' liability insurance policies.
NOW, THEREFORE, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. In addition to terms defined elsewhere
herein, the following terms have the following meanings when used in
this Agreement with initial capital letters:
(a) "AFFILIATE" has the meaning given to that term in
Rule 405 under the Securities Act of 1933, provided, however,
that for purposes of this Agreement the Company and its
subsidiaries will not be deemed to constitute Affiliates of
Indemnitee or the Indemnitee.
(b) "CLAIM" means any threatened, pending or completed
action, suit or proceeding (whether civil, criminal,
administrative, arbitrative, investigative or
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other), whether instituted by the Company or any other party
(including, without limitation, any governmental entity), or
any inquiry or investigation, whether instituted by the
Company or any other party (including, without limitation, any
governmental entity) that Indemnitee in good faith believes
might lead to the institution of any such action, suit or
proceeding.
(c) "EXPENSES" includes all attorneys' and experts' fees,
expenses and charges and all other costs, expenses and
obligations paid or incurred in connection with investigating,
defending, or participating (as a party, a witness, or
otherwise) in (including on appeal), or preparing to defend or
participate in, any Claim.
(d) "INDEMNIFIABLE LOSSES" means any and all Expenses,
damages, losses, liabilities, judgments, fines, penalties and
amounts paid or payable in settlement (including, without
limitation, all interest, assessments and other charges paid
or payable in connection with or in respect of any of the
foregoing) relating to, resulting from or arising out of any
act or failure to act by the Indemnitee, or his or her status
as any person referred to in clause (i) of this sentence, (i)
in his or her capacity as a director, officer, employee or
agent of the Company, any of its Affiliates or any other
entity as to which the Indemnitee is or was serving at the
request of the Company as a director, officer, employee,
member, manager, trustee, agent or any other capacity of
another corporation, limited liability company, partnership,
joint venture, trust or other entity or enterprise, whether or
not for profit and (ii) in respect of any business,
transaction or other activity of any entity referred to in
clause (i) of this sentence.
2. BASIC INDEMNIFICATION ARRANGEMENT. The Company will indemnify
and hold harmless Indemnitee to the fullest extent permitted by the
laws of the State of New York in effect on the date hereof or as such
laws may from time to time hereafter be amended to increase the scope
of such permitted indemnification (but in no case less than the extent
permitted under the laws in effect as of the date hereof) against all
Indemnifiable Losses relating to, resulting from or arising out of any
Claim. The failure by Indemnitee to notify the Company of such Claim
will not relieve the Company from any liability hereunder unless, and
only to the extent that, the Company did not otherwise learn of the
Claim and such failure results in forfeiture by the Company of
substantial defenses, rights or insurance coverage. Except as provided
in Sections 4 and 18, Indemnitee will not be entitled to
indemnification pursuant to this Agreement in connection with any Claim
initiated by Indemnitee against the Company or any director or officer
of the Company unless the Company has joined in or consented to the
initiation of such Claim.
3. ADVANCEMENT OF EXPENSES. The Indemnitee's right to
indemnification in Section 2 of this Agreement shall include the right
of Indemnitee to be advanced by the Company any Expenses. If so
requested by Indemnitee, the Company will advance within two business
days of such request any and all Expenses to Indemnitee which
Indemnitee reasonably determines likely to be payable; provided,
however, that Indemnitee will return, without interest, any such
advance which remains unspent at the final conclusion of the Claim to
which the advance related; and provided, further, that, except as
provided in Section 18, all amounts advanced in respect of such
Expenses shall be repaid to the
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Company by Indemnitee if it shall ultimately be determined in a final
judgment that Indemnitee is not entitled to be indemnified for such
Expenses.
4. INDEMNIFICATION FOR ADDITIONAL EXPENSES. Without limiting the
generality or effect of the foregoing, the Company will indemnify
Indemnitee against and, if requested by Indemnitee, will within two
business days of such request advance to Indemnitee, any and all
attorneys' fees and other Expenses paid or incurred by Indemnitee in
connection with any Claim asserted or brought by Indemnitee for (i)
indemnification or advance payment of Expenses by the Company under
this Agreement or any other agreement or under any provision of the
Company's Constituent Documents now or hereafter in effect relating to
Claims for Indemnifiable Losses and/or (ii) recovery under any
directors' and officers' liability insurance policies maintained by the
Company, regardless of whether Indemnitee ultimately is determined to
be entitled to such indemnification, advance expense payment or
insurance recovery, as the case may be.
5. PARTIAL INDEMNITY, ETC. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some
or a portion of any Indemnifiable Loss but not for all of the total
amount thereof, the Company will 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 relating in whole or in part to an
Indemnifiable Loss or in defense of any issue or matter therein,
including, without limitation, dismissal without prejudice, Indemnitee
will be indemnified against all Expenses incurred in connection
therewith. In connection with any determination as to whether
Indemnitee is entitled to be indemnified hereunder, there will be a
presumption that Indemnitee is so entitled, and the burden of proof
shall, to the extent permitted by law, be on the Company to establish
that Indemnitee is not so entitled.
6. NO OTHER PRESUMPTION. For purposes of this Agreement, the
termination of any Claim by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of nolo
contendere or its equivalent, will not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification
is not permitted by applicable law.
7. NON-EXCLUSIVITY, ETC. The rights of Indemnitee hereunder will
be in addition to any other rights Indemnitee may have under the
Constituent Documents, or the substantive laws of the Company's
jurisdiction of incorporation, any other contract or otherwise
(collectively, "Other Indemnity Provisions"); provided, however, that
(i) to the extent that Indemnitee otherwise would have any greater
right to indemnification under any Other Indemnity Provision,
Indemnitee will be deemed to have such greater right hereunder and (ii)
to the extent that any change is made to any Other Indemnity Provision
which permits any greater right to indemnification than that provided
under this Agreement as of the date hereof, Indemnitee will be deemed
to have such greater right hereunder. The Company will not adopt any
amendment to any of the Constituent Documents the effect of which would
be to deny, diminish or encumber Indemnitee's right to indemnification
under this Agreement or any Other Indemnity Provision.
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8. LIABILITY INSURANCE. To the extent the Company maintains an
insurance policy or policies providing directors' and officers'
liability insurance (the "D&O Insurance"), 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 any director or
officer of the Company. Notwithstanding the foregoing, the Company
shall not be required to cover the Indemnitee under its D&O Insurance
to the same extent as other directors or officers of the Company, or at
all, if the Company determines in good faith that such insurance is not
available, or the premium costs (or increases in premium costs of other
directors or officers of the Company as a result of such coverage) for
such insurance is materially disproportionate to the amount of coverage
provided.
9. SUBROGATION. In the event of payment under this Agreement, the
Company will be subrogated to the extent of such payment to all of the
related rights of recovery of Indemnitee against other persons or
entities (other than Indemnitee's successors). The Indemnitee will
execute all papers reasonably required to evidence such rights (all of
Indemnitee's reasonable Expenses, including attorneys' fees and
charges, related thereto to be reimbursed by or, at the option of
Indemnitee, advanced by the Company).
10. NO DUPLICATION OF PAYMENTS. The Company will not be liable
under this Agreement to make any payment in connection with any
Indemnifiable Loss made against Indemnitee to the extent Indemnitee has
otherwise actually received payment (net of Expenses incurred in
connection therewith) under any insurance policy, the Constituent
Documents and Other Indemnity Provisions or otherwise of the amounts
otherwise indemnifiable hereunder provided that, if Indemnitee for any
reason is required to disgorge any payment actually received by him,
the Company shall be obligated to pay such amount to Indemnitee in
accordance with the other terms of this Agreement (i.e., disregarding
the terms of this Section 10).
11. DEFENSE OF CLAIMS. The Company will be entitled to participate
in the defense (including, without limitation, the negotiation and
approval of any settlement) of any Claim in respect of which Indemnitee
may seek indemnification from the Company hereunder, or to assume the
defense thereof, with counsel reasonably satisfactory to the
Indemnitee, provided that in the event that (i) the use of counsel
chosen by the Company to represent Indemnitee would present such
counsel with an actual or potential conflict, (ii) the named parties in
any such Claim (including any impleaded parties) include both the
Company and Indemnitee and Indemnitee shall conclude that there may be
one or more legal defenses available to him or her that are different
from or in addition to those available to the Company, or (iii) any
such representation by the Company would be precluded under the
applicable standards of professional conduct then prevailing, then
Indemnitee will be entitled to retain separate counsel (but not more
than one law firm plus, if applicable, local counsel in respect of any
particular Claim) at the Company's expense. Notwithstanding the
preceding sentence, in any event the Company shall be liable to
Indemnitee under this Agreement for the reasonable costs of
investigation and preparation for the defense of any Claim (including,
without limitation, appearing as a witness and reasonable fees and
expenses of counsel in connection therewith). The Company will not,
without the prior written consent of the Indemnitee, effect any
settlement of any threatened or pending Claim that the Indemnitee is or
could have been a
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party to unless such settlement solely involves the payment of money
and includes an unconditional release of the Indemnitee from all
liability on any claims that are the subject matter of such Claim.
12. SUCCESSORS AND BINDING AGREEMENT. (a) The Company will require
any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all
of the business or assets of the Company (a "Successor"), by agreement
in form and substance satisfactory to Indemnitee and his or her
counsel, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent the Company would be required to
perform if no such succession had taken place. This Agreement will be
binding upon and inure to the benefit of the Company and may be
assigned to a Successor, but will not otherwise be assignable or
delegatable by the Company.
(b) This Agreement will inure to the benefit of and be
enforceable by the Indemnitee's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, legatees and other successors.
(c) This Agreement is personal in nature and neither of
the parties hereto will, without the consent of the other,
assign or delegate this Agreement or any rights or obligations
hereunder except as expressly provided in Sections 12(a) and
12(b). Without limiting the generality or effect of the
foregoing, Indemnitee's right to receive payments hereunder
will not be assignable, whether by pledge, creation of a
security interest or otherwise, other than by a transfer by
the Indemnitee's will or by the laws of descent and
distribution, and, in the event of any attempted assignment or
transfer contrary to this Section 12(c), the Company will have
no liability to pay any amount so attempted to be assigned or
transferred.
13. NOTICES. For all purposes of this Agreement, all
communications, including without limitation notices, consents,
requests or approvals, required or permitted to be given hereunder will
be in writing and will be deemed to have been duly given when hand
delivered or dispatched by electronic facsimile transmission (with
receipt thereof orally confirmed), or five business days after having
been mailed by United States registered or certified mail, return
receipt requested, postage prepaid or one business day after having
been sent for next-day delivery by a nationally recognized overnight
courier service, addressed to the Company (to the attention of the
Secretary of the Company) and to the Indemnitee at the addresses shown
on the signature page hereto, or to such other address as any party may
have furnished to the other in writing and in accordance herewith,
except that notices of changes of address will be effective only upon
receipt.
14. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York, without
giving effect to the principles of conflict of laws of such State. Each
party consents to non-exclusive jurisdiction of any New York state or
federal court for purposes of any action, suit or proceeding hereunder,
waives any objection to venue therein or any defense based on forum non
conveniens or similar theories and agrees that service of process may
be effected in any such action, suit or proceeding by notice given in
accordance with Section 13.
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15. VALIDITY. If any provision of this Agreement or the
application of any provision hereof to any person or circumstance is
held invalid, unenforceable or otherwise illegal, the remainder of this
Agreement and the application of such provision to any other person or
circumstance will not be affected, and the provision so held to be
invalid, unenforceable or otherwise illegal will be reformed to the
extent, and only to the extent, necessary to make it enforceable, valid
or legal.
16. MISCELLANEOUS. No provision of this Agreement may be waived,
modified or discharged unless such waiver, modification or discharge is
agreed to in writing signed by Indemnitee and the Company. No waiver by
either party hereto at any time of any breach by the other party hereto
or compliance with any condition or provision of this Agreement to be
performed by such other party will be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise,
expressed or implied with respect to the subject matter hereof have
been made by either party that are not set forth expressly in this
Agreement. References to Sections are to references to Sections of this
Agreement.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original but all of
which together will constitute one and the same agreement.
18. LEGAL FEES AND EXPENSES. It is the intent of the Company that
the Indemnitee not be required to incur legal fees and or other
Expenses associated with the interpretation, enforcement or defense of
Indemnitee's rights under this Agreement by litigation or otherwise
because the cost and expense thereof would substantially detract from
the benefits intended to be extended to the Indemnitee hereunder.
Accordingly, without limiting the generality or effect of any other
provision hereof, 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 or
threatens to take any action to declare this Agreement void or
unenforceable, or institutes any litigation or other action or
proceeding designed to deny, or to recover from, the Indemnitee the
benefits provided or intended to be provided to the Indemnitee
hereunder, the Company irrevocably authorizes the Indemnitee from time
to time to retain counsel of Indemnitee's choice, at the expense of the
Company as hereafter provided, to advise and represent the Indemnitee
in connection with any such interpretation, enforcement or defense,
including without limitation the initiation or defense of any
litigation or other legal action, whether by or against the Company or
any director, officer, stockholder or other person affiliated with the
Company. 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 agree that a confidential relationship
shall exist between the Indemnitee and such counsel. Without respect to
whether the Indemnitee prevails, in whole or in part, in connection
with any of the foregoing, the Company will pay and be solely
financially responsible for any and all attorneys' and related fees and
expenses incurred by the Indemnitee in connection with any of the
foregoing.
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19. RIGHT OF INDEMNITEE TO INDEMNIFICATION UPON APPLICATION;
PROCEDURE UPON APPLICATION. Except as provided in Section 3, any
indemnification under this Agreement shall be made as soon as
practicable but in any event no later than 30 days after receipt of the
written request of the Indemnitee for such indemnification (such
request to be accompanied by reasonable supporting documentation of the
Indemnifiable Losses), unless a determination is made within said 30
day period by (a) the Board by a majority vote of a quorum thereof
consisting of directors who were not parties to such proceedings, or
(b) independent legal counsel in a written opinion (which counsel shall
be appointed if such a quorum is not obtainable), that the Indemnitee
has not met the relevant standards for indemnification set forth in
this Agreement. In the case of either (a) or (b) above, the Company
shall send prompt written notice to the Indemnitee of such
determination.
20. CERTAIN INTERPRETIVE MATTERS. No provision of this Agreement
will be interpreted in favor of, or against, either of the parties
hereto by reason of the extent to which any such party or its counsel
participated in the drafting thereof or by reason of the extent to
which any such provision is inconsistent with any prior draft hereof or
thereof.
IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly
authorized representative to execute this Agreement as of the date first above
written.
GOODRICH CORPORATION
Four Coliseum Centre
2730 West Tyvola Road
Charlotte, North Carolina 28217
By:____________________________________
Name:
Title:
[name and address]
_______________________________________
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