INDEMNIFICATION AGREEMENT
Exhibit 10.1
THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of
[___], 2010 between CALGON CARBON CORPORATION, a Delaware corporation (the
“Company”), and [name] (“Indemnitee”).
WITNESSETH THAT:
A. Indemnitee currently performs or will perform valuable services to the Company in his or
her capacity as a director and/or officer of the Company.
B. The Company’s By-laws authorize the indemnification of directors, officers, employees and
other agents of the Company.
C. The Company’s By-laws and the Delaware General Corporation Law (the “DGCL”) permit
contracts between the Company and its directors, officers and other agents with respect to the
indemnification of such persons.
D. The Company desires to attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve as officers and directors of the Company and to indemnify its officers
and directors so as to provide them with the maximum protection permitted by law.
E. This Agreement is a supplement to and in furtherance of the By-laws of the Company and any
resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder.
F. Indemnitee does not regard the protection available under the Company’s By-laws and
insurance as adequate in the present circumstances, and may not be willing to serve as an officer
or director without adequate protection, and the Company desires Indemnitee to serve in such
capacity. 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 he or she be so indemnified as set forth herein.
NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve as an officer and/or
director after the date hereof, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Definitions.
(a) A “Change in Control” shall be deemed to occur upon the earliest to occur
after the date of this Agreement of any of the following events:
(i) the acquisition by any individual, entity or group (a “Person”) (within the
meaning of Section 13(d) (3) or 14(d) (2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 30% or more of either (A) the then outstanding shares of common stock of
the Company or (B) the combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of directors (in both cases,
“Voting Stock”); provided, however, that for purposes of this Section 1(a)(i), the
following acquisitions will not constitute a Change in Control: (A) any issuance of Voting Stock of
the Company directly from the Company that is approved by the Incumbent Board (as defined in
Section 1(a)(ii), below), (B) any acquisition by the Company of Voting Stock of the Company, (C)
any acquisition of Voting Stock of the Company by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Subsidiary, (D) any acquisition of Voting Stock of
the Company by an underwriter holding securities of the Company in connection with a public
offering thereof, or (E) any acquisition of Voting Stock of the Company by any Person pursuant to a
Business Combination that complies with clauses (A), (B) and (C) of Section 1(a)(iii) below; or
(ii) individuals who constitute the Board as of the effective date of this Agreement
(the “Incumbent Board,” as modified by this Section 1(a)(ii)), cease for any reason to
constitute at least a majority of the Board; provided, however, that any individual becoming a
Director subsequent to such date whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least two-thirds of the Directors then comprising the
Incumbent Board (either by a specific vote or by approval of the proxy statement of the Company in
which such person is named as a nominee for director, without objection to such nomination) will be
deemed to have then been a member of 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 Board; or
(iii) consummation of a reorganization, merger, statutory share exchange or
consolidation or similar transaction involving the Company or a direct or indirect wholly owned
subsidiary thereof, a sale or other disposition (whether by sale, taxable or nontaxable exchange,
formation of a joint venture or otherwise) of all or substantially all of the assets of the
Company, or the acquisition of assets or stock of another entity by the Company or any of its
subsidiaries (each, a “Business Combination”), unless, in each case, immediately following
such Business Combination, (A) all or substantially all of the individuals and entities who were
the beneficial owners of Voting Stock of the Company immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the combined voting power of the then
outstanding shares of Voting Stock of the entity resulting from such Business Combination or any
direct or indirect parent corporation thereof (including, without limitation, an entity which as a
result of such transaction owns the Company or all or substantially all of the Company’s assets
either directly or through one or more subsidiaries), (B) no Person other than the Company
beneficially owns 30% or more of the combined voting power of the then outstanding shares of Voting
Stock of the entity resulting from such Business Combination or any direct or indirect parent
corporation thereof (disregarding all “acquisitions” described in subsections (A) — (C) of Section
1 (a) (i)), and (C) at least two thirds of the members of the Board of Directors of the entity
resulting from such Business Combination or any direct or indirect parent corporation thereof were
members of the Incumbent Board at the time of the execution of the initial agreement or of the
action of the Board providing for such Business Combination; or
(iv) approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company, except pursuant to a Business Combination that complies with clauses
(A), (B) and (C) of Section 1(a)(iii).
(v) Other Events. Any other event of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on
any similar schedule or form) promulgated under the Securities Exchange Act of 1934, as amended,
whether or not the Company is then subject to such reporting requirement.
(vi) “Corporate Status” describes the status of a person who is or was a
director, trustee, general partner, managing member, joint venturer, officer, employee, agent or
fiduciary of the Company.
- 2 -
(b) “Disinterested Director” means a director of the Company who is not and was
not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(c) “Expenses” include all reasonable attorneys’ fees, retainers, court
costs, transcript costs, fees and costs of experts, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in,
or otherwise participating in, a Proceeding. Expenses also include (i) Expenses incurred in
connection with any appeal resulting from any Proceeding, including without limitation the premium,
security for, and other costs relating to any cost bond, supersedeas bond or other appeal bond or
their equivalent, and (ii) for purposes of Section 12(d), Expenses incurred by Indemnitee in
connection with the interpretation, enforcement or defense of Indemnitee’s rights under this
Agreement or under any D&O Insurance policies maintained by the Company. Expenses, however, shall
not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against
Indemnitee.
(d) “Independent Counsel” means a law firm, or a partner or member of a law
firm, that is experienced in matters of corporation law and neither presently is, nor in the past
five years has been, retained to represent (i) the Company or Indemnitee in any matter material to
either such party (other than as Independent Counsel with respect to matters concerning Indemnitee
under this Agreement or as Independent Counsel with respect to matters concerning other indemnitees
under other indemnification agreements), or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder. 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.
(e) “Interested Shareholder” means any person (other than the Company or any
subsidiary of the Company and other than any profit sharing, employee stock ownership, or other
employee benefit plan of the Company or any subsidiary of the Company or any trustee of or
fiduciary with respect to any such plan when acting in such capacity) who or which:
(i) is at such time the beneficial owner, directly or indirectly, of more then
fifteen percent (15%) of the voting power of the outstanding common stock of the Company;
(ii) was at any time within the two-year period immediately prior to such time the
beneficial owner, directly or indirectly, of more than fifteen percent (15%) of the voting power of
the then outstanding common stock of the Company; or
(iii) is at such time an assignee of or has otherwise succeeded to the beneficial
ownership of any shares of common stock of the Company which were at any time within the two-year
period immediately prior to such time beneficially owned by any Interested Shareholder, if such
assignment or succession has occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act of 1933, as amended.
(f) A “Potential Change of Control” shall occur if:
(i) the Company enters into an agreement or arrangement the consummation of which
would result in the occurrence of a Change of Control;
(ii) any Person (including the Company) publicly announces an intention to take or
to consider taking actions which if consummated would constitute a Change in Control; or
- 3 -
(iii) the Board of Directors of the Company adopts a resolution to the effect that,
for purposes of this Agreement, a Potential Change of Control has occurred.
(g) “Proceeding” means any threatened, pending or completed action, suit,
arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or proceeding, whether brought in the right of the Company or otherwise and
whether of a civil, criminal, administrative or investigative nature, including any appeal
therefrom and including without limitation any such Proceeding pending as of the date of this
Agreement, in which Indemnitee was, is or will be involved as a party, a potential party, a
non-party witness or otherwise by reason of (i) the fact that Indemnitee is or was a director or
officer of the Company, (ii) any action taken by Indemnitee or any action or inaction on
Indemnitee’s part while acting as a director or officer of the Company, or (iii) the fact that he
or she is or was serving at the request of the Company as a director, trustee, general partner,
managing member, officer, employee, agent or fiduciary of another corporation, partnership, joint
venture, trust, limited liability company or other enterprise, in each case whether or not serving
in such capacity at the time any liability or Expense is incurred for which indemnification or
advancement of expenses can be provided under this Agreement.
(h) “Unaffiliated Director” means any member of the Board of Directors of
the Company who is unaffiliated with, and not a representative of, an Interested Shareholder and
who was a member of the Board of Directors prior to the time that the Interested Shareholder became
an Interested Shareholder or became a member subsequently to fill a vacancy created by an increase
in the size of the Board of Directors and did receive the favorable vote of two-thirds (2/3) of the
Disinterested Directors in connection with being nominated for election by the shareholders to fill
such vacancy or in being elected by the Board of Directors to fill such vacancy, and any successor
of a Disinterested Director who is unaffiliated with, and not a representative of, the Interested
Shareholder and is recommended or elected to succeed a Disinterested Director by a majority of the
Disinterested Directors then on the Board of Directors.
Reference to “other enterprises” shall include employee benefit plans and
administrative committees thereof; 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, officer, employee or
agent with respect to an employee benefit plan, its participants or beneficiaries; a person who
acted in good faith and in a manner he or she reasonably believed to be in the best 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 interests of the Company” as referred to in this Agreement;
references to “to the fullest extent permitted by applicable law” shall include, but not be
limited to: (i) the fullest extent permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding provision of any
amendment to or replacement of the DGCL and (ii) the fullest extent authorized or permitted by any
amendments to or replacements of the DGCL adopted after the date of this Agreement that increase
the extent to which a corporation may indemnify its officers and directors.
2. Indemnity in Third-Party Proceedings. The Company shall indemnify Indemnitee
in accordance with the provisions of this Section 2 if Indemnitee is, or is threatened to be made,
a party to or
a participant in any Proceeding, other than a Proceeding by or in the right of the Company to
procure a judgment in its favor. Pursuant to this Section 2, Indemnitee shall be indemnified to the
fullest extent permitted by applicable law against all Expenses, judgments, 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, if Indemnitee acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to the best interests
of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to
believe that his or her conduct was unlawful.
- 4 -
3. Indemnity in Proceedings by or in the Right of the Company. The Company shall
indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is
threatened to be made, a party to or a participant in any Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law against all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or
any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the Company. No
indemnification for Expenses shall be made under this Section 3 in respect of any claim, issue or
matter as to which Indemnitee shall have been adjudged by a court of competent jurisdiction to be
liable to the Company, unless and only to the extent that the Delaware Court of Chancery or any
court in which the Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnification for such expenses as the Delaware Court of Chancery or
such other court shall deem proper.
4. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. To
the extent that Indemnitee is a party to or a participant in and is successful (on the merits or
otherwise) in defense of any Proceeding or any claim, issue or matter therein, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. To the extent permitted by applicable law, if
Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, in defense of one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable
law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection with each successfully resolved claim, issue or matter. For purposes of this Section,
the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
5. Indemnification for Expenses of a Witness. Notwithstanding any other provision
of this Agreement, to the extent that Indemnitee, by reason of his or her Corporate Status, is to
be a witness or to be interviewed in any threatened, pending or completed action, suit,
arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or proceeding to which Indemnitee is not a party, Indemnitee shall be
indemnified to the fullest extent permitted by applicable law against all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
6. Additional Indemnification. In the event that applicable law permits
indemnification in addition to the indemnification provided in Sections 2, 3 and 4, the Company
shall indemnify Indemnitee to the fullest extent permitted by applicable law if Indemnitee is, or
is threatened to be made, a party to or a participant in any Proceeding (including a Proceeding by
or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on his or
her behalf in connection with the Proceeding or any claim, issue or matter therein. To the extent
that a change in Delaware law, whether by statute or judicial decision, permits greater
indemnification or advancement of Expenses than would be afforded currently under the Company’s
certificate of incorporation and By-laws and this Agreement, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
such change, subject to the restrictions expressly set forth herein or therein. If the Indemnitee
is entitled under any provision of this Agreement to indemnification by the Company for some or a
portion of Expenses, but not, however, for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Expenses to which the Indemnitee is entitled.
7. Contribution. To the fullest extent permissible under applicable law, if the
indemnification
- 5 -
provided for in this Agreement is unavailable to Indemnitee, then in respect of any
actual or threatened proceeding in which the Company is jointly liable with Indemnitee (or would be
if joined in such proceeding) the Company, in lieu of indemnifying Indemnitee, shall contribute to
the amount incurred by Indemnitee, whether for Expenses, judgments, fines or amounts paid or to be
paid in settlement, in connection with any claim relating to an indemnifiable event under this
Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances
of such Proceeding in order to reflect (i) the relative benefits received by the Company and
Indemnitee as a result of the event(s) and transaction(s) giving rise to such Proceeding; and (ii)
the relative fault of Indemnitee and the Company (and its other directors, officers, employees and
agents) in connection with such event(s) and transaction(s).
8. Notification and Defense of Claim.
(a) Indemnitee shall notify the Company in writing of any matter with respect to
which Indemnitee intends to seek indemnification or advancement of Expenses as soon as reasonably
practicable following the receipt by Indemnitee of written notice thereof. The written notification
to the Company shall include a description of the nature of the Proceeding and the facts underlying
the Proceeding. The failure by Indemnitee to notify the Company will not relieve the Company from
any liability which it may have to Indemnitee hereunder or otherwise than under this Agreement, and
any delay in so notifying the Company shall not constitute a waiver by Indemnitee of any rights.
With respect to any Proceeding as to which the Indemnitee has so notified the Company:
(i) The Company will be entitled to participate therein at its own expense; and
(ii) Except as otherwise provided below, the Company may assume the defense thereof,
with counsel reasonably satisfactory to the Indemnitee. After the Company notifies the Indemnitee
of its election to so assume the defense, the Company will not be liable to the Indemnitee under
this Agreement for any legal Expenses subsequently incurred by the Indemnitee in connection with
the defense, other than legal Expenses relating to the reasonable costs of investigation, including
an investigation in connection with determining whether there exists a conflict of interest of the
type described in clause (ii) of this paragraph, or as otherwise provided in this paragraph. The
Indemnitee shall have the right to employ his or her counsel in such action, suit or proceeding but
the fees and expenses of such counsel incurred after the Company notifies the Indemnitee of its
assumption of the defense shall be at the expense of the Indemnitee unless (i) the Company
authorizes the Indemnitee’s employment of counsel, provided, that following a Change of Control,
the Indemnitee shall be entitled to employ his or her own counsel at the Company’s expense after
giving not less than 30 days’ notice to the Company unless the Company has Disinterested Directors
and a majority of the Disinterested Directors determine that the Indemnitee’s interests are
adequately represented by the counsel employed by the Company; (ii) the Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the Company and the
Indemnitee in the conduct of the defense or (iii) the Company shall not have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses of counsel shall be
at the expense of the Company. The Company shall not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of the Company or as to which the Indemnitee
shall have made the conclusion described in clause (ii) of this paragraph.
(b) The Company shall not be obligated to indemnify the Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected without its written
consent. The Company shall not settle any action or claim in any manner which would impose any
penalty or limitation on the Indemnitee without the Indemnitee’s written consent. Neither the
Company nor the Indemnitee shall unreasonably withhold their consent to any proposed settlement.
- 6 -
9. Procedure for Indemnification.
(a) To obtain indemnification, Indemnitee shall submit to the Company a written
request, including therein or therewith such documentation and information as is reasonably
available to Indemnitee and as is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification following the final disposition of such Proceeding. The
Company shall, as soon as reasonably practicable after receipt of such a request for
indemnification, advise the board of directors that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to Section 9(a),
a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto
shall be made in the specific case (i) if a Change in Control shall have occurred, by Independent
Counsel in a written opinion to the Company’s board of directors, a copy of which shall be
delivered to Indemnitee or (ii) if a Change in Control shall not have occurred, (A) by a majority
vote of the Disinterested Directors, even though less than a quorum of the Company’s board of
directors, (B) by a committee of Disinterested Directors designated by a majority vote of the
Disinterested Directors, even though less than a quorum of the Company’s board of directors, (C) if
there are no such Disinterested Directors or, if such Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Company’s board of directors, a copy of which shall
be delivered to Indemnitee or (D) if so directed by the Company’s board of directors, by the
stockholders of the Company. If it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten (10) days after such determination.
Indemnitee shall cooperate with the person, persons or entity making such determination with
respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons
or entity upon reasonable advance request any documentation or information which is not privileged
or otherwise protected from disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and
disbursements) reasonably incurred by Indemnitee in so cooperating with the person, persons or
entity making such determination shall be borne by the Company, to the extent permitted by
applicable law.
(c) In the event the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Section 9(b), the Independent Counsel shall be selected as
provided in this Section 9(c). If a Change in Control shall not have occurred, the Independent
Counsel shall be selected by the Company’s board of directors, and the Company shall give written
notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. If
a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the Company’s board of directors,
in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the
Company advising it of the identity of the Independent Counsel so selected. In either event,
Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice
of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a
written objection to such selection; provided, however, that such objection may be asserted only on
the ground that the Independent Counsel so selected does not meet the requirements of “Independent
Counsel” as defined in Section 1 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and timely objection, the person
so selected shall act as Independent Counsel. If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless
and until such objection is withdrawn or a court has determined that such objection is without
merit. If, within twenty (20) days after the later of (i) submission by Indemnitee of a written
request for indemnification pursuant to Section 9(a) hereof and (ii) the final disposition of the
Proceeding, the parties have not agreed upon an Independent Counsel, either the Company or
Indemnitee may petition a court of competent jurisdiction for resolution of any objection which
shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel
and for the appointment as Independent Counsel of a person selected by the court or by such other
person as the court shall designate, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent Counsel under
- 7 -
Section 9(b) hereof.
Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 12(a) of
this Agreement, the Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of professional conduct then
prevailing).
(d) The Company agrees to pay the reasonable fees and expenses of any Independent
Counsel and to fully indemnify such counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant hereto.
10. Advancement of Expenses; Procedure for Advances. The Company shall advance,
to the extent not prohibited by law, the Expenses incurred by Indemnitee in connection with any
Proceeding. Advances shall be unsecured and interest free and made without regard to Indemnitee’s
ability to repay such advances. Indemnitee hereby undertakes to repay any advance to the extent
that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company.
To obtain advances of Expenses, Indemnitee shall submit from time to time to the Company a written
request requesting such advances and shall provide copies of invoices received by Indemnitee in
connection with such Expenses but, in the case of invoices in connection with legal services, any
references to legal work performed or to expenditure made that Indemnitee’s lawyers believe would
likely cause Indemnitee to waive any privilege accorded by applicable law may be redacted from the
copy of the invoice submitted to the Company (in which case, Indemnitee shall also submit a letter
addressed to the Company from such lawyers to the effect that they believe submission of the
redacted information would likely cause Indemnitee to waive a privilege accorded by applicable
law). Upon receipt of a such a request for an advance of Expenses along with copies of the related
invoices (and, if applicable, a letter from Indemnitee’s lawyers with respect to redactions on the
legal invoice(s)), Company shall advance the Expenses to Indemnitee as soon as reasonably
practicable, but in any event no later than sixty (60) days, after such receipt by the Company.
This Section 10 shall not apply to any claim made by Indemnitee for which indemnity is excluded
pursuant to Section 16 of this Agreement.
11. Maintenance of Insurance; Funding.
(a) The Company represents that a summary of the terms of the D&O Insurance in
effect as of the date of this Agreement has been made available to the Indemnitee (the
“Insurance Policies”). Subject only to the provisions of Section 11(b) hereof, the Company
agrees that, so long as Indemnitee shall continue to serve as an officer or director of the Company
(or shall continue at the request of the Company to serve as a director, officer, employee, trustee
or representative of another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan) and thereafter so long as Indemnitee
shall be subject to any possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal or investigative, by reason of the fact that Indemnitee was a
director or officer of the Company (or served in any of said other capacities), the Company shall
purchase and maintain in effect for the benefit of Indemnitee one or more valid, binding and
enforceable policy or policies of D&O Insurance providing coverage at least comparable to that
provided pursuant to the Insurance Policies.
(b) The Company shall not be required to maintain said policy or policies of D&O
Insurance in effect if, in the reasonable, good faith business judgment of the then Board of
Directors of the Company (i) the premium cost for such insurance is substantially disproportionate
to the amount of coverage, (ii) the coverage provided by such insurance is so limited by exclusions
that there is insufficient benefit from such insurance or (iii) said insurance is not otherwise
reasonably available; provided, however, that in the event the then Board of Directors makes such a
judgment, the Company shall purchase and maintain in force a policy or policies of D&O Insurance in
the amount and with such coverage as the then Board of Directors determines to be reasonably
available. Notwithstanding the general provisions of this Section 11(b), following a Change of
Control, any decision not to maintain any policy or policies of D&O Insurance or to reduce the
amount or coverage under any such policy or
- 8 -
policies shall be effective only if there are
Disinterested Directors (as defined in Section 1(c) hereof) and shall require the concurrence of a
majority of the Disinterested Directors.
(c) If and to the extent the Company, acting under Section 11(b), does not purchase
and maintain in effect the policy or policies of D&O Insurance described in Section 11(a), the
Company shall indemnify and hold harmless the Indemnitee to the full extent of the coverage which
would otherwise have been provided by such policies. The rights of the Indemnitee hereunder shall
be in addition to all other rights of Indemnitee under the remaining provisions of this Agreement.
(d) In the event of a Potential Change of Control and if and to the extent the
Company is not required to maintain in effect the policy or policies of D&O Insurance described in
Section 11(a) pursuant to the provisions of Section 11(b), the Company shall, upon written request
of Indemnitee, create a “Trust” for the benefit of Indemnitee, and from time to time, upon written
request by Indemnitee, shall fund such Trust in an amount sufficient to pay any and all Expenses
and any and all liability and loss, including judgments, fines, ERISA excise taxes or penalties and
amounts paid or to be paid in settlement actually and reasonably incurred by him or on his behalf
for which the Indemnitee is entitled to indemnification or with respect to which indemnification is
claimed, reasonably anticipated or proposed to be paid in accordance with the terms of this
Agreement or otherwise; provided that in no event shall more than $100,000 be required to be
deposited in any Trust created hereunder in excess of the amounts deposited in respect of
reasonably anticipated Expenses. The amounts to be deposited in the Trust pursuant to the
foregoing funding obligation shall be determined by a majority of the Unaffiliated Directors whose
determination shall be final and conclusive. At all times the Trust shall remain as an asset of
the Company and subject to the claims of the Company’s creditors.
The terms of the Trust shall provide that upon a Change of Control (i) the Trust shall not be
revoked or the principal thereof invaded, without the written consent of the Indemnitee except as
set forth in the preceding paragraph, (ii) the procedures set forth in Section 10 regarding
advancement of expenses with respect to the Company shall apply to the Trust, (iii) the Trust shall
continue to be funded by the Company in accordance with the funding obligation set forth above (and
in the event that there are no Unaffiliated Directors, the decision regarding the amount to fund
shall be made by Independent Counsel selected as provided in Section 9(c)), (iv) the Trustee shall
promptly pay to the Indemnitee all amounts for which the Indemnitee shall be entitled to
indemnification pursuant to this Agreement or otherwise, and (v) all unexpended funds in such Trust
shall revert to the Company upon a final determination by a majority of the Unaffiliated Directors
or by Independent Counsel or a court of competent jurisdiction, as the case may be, that the
Indemnitee has been fully indemnified under the terms of this Agreement. The Trustee shall be a
bank or trust company or other individual or entity chosen by the Indemnitee and reasonably
acceptable and approved of by the Company.
12. Remedies of Indemnitee.
(a) Subject to Section 12(d), in the event that (i) a determination is made pursuant
to Section 9 of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 10 or 12(d) of this Agreement,
(iii) no determination of entitlement to indemnification shall have been made pursuant to Section 9
of this Agreement within ninety (90) days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification pursuant to this Agreement is not made (A) within
ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or
(B) with respect to indemnification pursuant to Sections 4, 5 or 12(d) of this Agreement, within
thirty (30) days after receipt by the Company of a written request therefor, or (v) the Company or
any other person or entity 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, Indemnitee the benefits provided or intended to be provided to Indemnitee hereunder,
Indemnitee shall be entitled to an adjudication by the Delaware Court of Chancery of Indemnitee’s
right to such indemnification or advancement of Expenses.
- 9 -
Alternatively, Indemnitee, at his or her
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. The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration in accordance with this
Agreement.
(b) The failure of the Company, its board of directors, any committee or subgroup of
the board of directors, Independent Counsel or stockholders to have made a determination that
indemnification is proper in the circumstances because Indemnitee has met the applicable standard
of conduct shall not be a defense to the action or create a presumption that Indemnitee has or has
not met the applicable standard of conduct. In the event that a determination shall have been made
pursuant to Section 9 of this Agreement that Indemnitee is not entitled to indemnification, any
judicial proceeding or arbitration commenced pursuant to this Section 12 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 that adverse determination. In any judicial proceeding or arbitration commenced
pursuant to this Section 12, the Company shall, to the fullest extent not prohibited by law, have
the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as
the case may be.
(c) To the fullest extent not prohibited by law, the Company shall be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the
procedures and presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that the Company is bound by all the
provisions of this Agreement. If a determination shall have been made pursuant to Section 9 of this
Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to this Section 12,
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee’s statements not materially misleading, in connection with the request
for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) The Company shall indemnify Indemnitee against any and all Expenses and, if
requested by Indemnitee, shall (as soon as reasonably practicable, but in any event no later than
sixty (60) days, after receipt by the Company of a written request therefor) advance such Expenses
to Indemnitee, that are incurred by Indemnitee in connection with any action for indemnification or
advancement of Expenses from the Company under this Agreement or under any directors’ and officers’
liability insurance policies maintained by the Company, to the extent Indemnitee is successful in
such action and to the extent not prohibited by law.
(e) Notwithstanding anything in this Agreement to the contrary, no determination as
to entitlement to indemnification shall be required to be made prior to the final disposition of
the Proceeding.
13. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification
hereunder, the person, persons or entity making such determination shall, to the fullest extent not
prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if
Indemnitee has submitted a request for indemnification in accordance with Section 9 of this
Agreement, and the Company shall, to the fullest extent not prohibited by law, have the burden of
proof to overcome that presumption in connection with the making by such person, persons or entity
of any determination contrary to that presumption.
(b) The termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the
right of Indemnitee to
- 10 -
indemnification or create a presumption that Indemnitee 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, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his or her conduct was unlawful.
(c) For purposes of any determination of good faith, Indemnitee shall be deemed to
have acted in good faith to the extent Indemnitee relied in good faith on (i) the records or books
of account of the Company, including financial statements, (ii) information supplied to Indemnitee
by the officers of the Company in the course of their duties, (iii) the advice of legal counsel for
the Company or its board of directors or counsel selected by any committee of the board of
directors or (iv) information or records given or reports made to the Company by an independent
certified public accountant, an appraiser, investment banker or other expert selected with
reasonable care by the Company or its board of directors or any committee of the board of
directors. The provisions of this Section 13(c) shall not be deemed to be exclusive or to limit in
any way the other circumstances in which Indemnitee may be deemed to have met the applicable
standard of conduct set forth in this Agreement.
(d) Neither the knowledge, actions nor failure to act of any other director,
officer, agent or employee of the Company shall be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
14. Subrogation; No Duplication of Payments. In the event that the Company pays
any Expenses under this Agreement, the Company shall be subrogated to the extent of such payment to
all of the rights of recovery of the Indemnitee, 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 enforce such rights. The Company
shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable
hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has
otherwise actually received payment from a third party for such amounts under any insurance policy,
contract, agreement or otherwise; provided, however, that if the Indemnitee repays any of these
payments to such third party (whether due to a reservation of rights or otherwise), the Company
shall again be obligated to Indemnitee under this Agreement with respect to such payments.
15. Services to Company. Indemnitee agrees to serve as a director or officer of
the Company for so long as Indemnitee is duly elected or appointed or until Indemnitee tenders his
or her resignation. This Agreement shall not be deemed an employment contract between the Company
(or any of its subsidiaries) and Indemnitee. Indemnitee specifically acknowledges that any
employment with the Company (or any of its subsidiaries) is at will, and Indemnitee may be
discharged at any time for any reason, with or without cause, with or without notice, except as may
be otherwise expressly provided in any executed, written employment contract between Indemnitee and
the Company (or any of its subsidiaries), any existing formal severance policies adopted by the
Company’s board of directors or, with respect to service as a director or officer of the Company,
the Company’s certificate of incorporation or By-laws or the DGCL.
16. Exclusions. Notwithstanding the foregoing, the Company shall not be liable
under this Agreement to pay any Expenses in connection with any Proceeding:
(a) for any reimbursement of the Company by Indemnitee of any bonus or other
incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale
of securities of the Company, as required in each case under the Securities Exchange Act of 1934,
as amended (including any such reimbursements that arise from an accounting restatement of the
Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx
Act”), or the payment to the Company of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act), if Indemnitee is
held liable therefor (including pursuant to any settlement arrangements);
- 11 -
(b) for a disgorgement of profits made from the purchase and sale by the Indemnitee
of securities pursuant to Section 16(b) of the Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any state statutory law or common law;
(c) initiated by Indemnitee, including any Proceeding (or any part of any
Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees,
agents or other indemnitees, unless (i) the Company’s board of directors authorized the Proceeding
(or the relevant part of the Proceeding) prior to its initiation, (ii) otherwise authorized in
Section 12(d) or (iii) otherwise required by applicable law; or
(d) if prohibited by applicable law.
17. Amendments. The entitlement to payment hereunder of an Indemnitee shall not
be affected or diminished by any amendment, termination or repeal of the General Corporation Law of
the State of Delaware or the By-laws of the Company with respect to any Proceeding arising out of or
relating to any actions, transactions or facts occurring prior to the final adoption of any such
amendment, termination or repeal. This Agreement may not be modified or altered except by a formal
writing signed by both parties that specifically refers to this Agreement.
18. Counterparts. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one instrument.
19. Indemnification Hereunder Not Exclusive. Nothing herein shall be deemed to
diminish or otherwise restrict the Indemnitee’s right to indemnification under any provision of the
Restated Certificate of Incorporation or the By-laws of the Company and amendments thereto or under
law. Except as expressly set forth herein, no right or remedy herein conferred is intended to be
exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other right or remedy. It is the
intention of the parties in entering into this Agreement that the insurers under any D&O Insurance
policy shall be obligated ultimately to pay any claims by Indemnitee which are covered by such
policy and not to give such insurers any rights against the Company under or with respect to this
Agreement, including, without limitation, any right to be subrogated to any of Indemnitee’s rights
hereunder, unless otherwise expressly agreed to by the Company in writing, and the obligation of
such insurers to the Company or Indemnitee shall not be deemed reduced or impaired in any respect
by virtue of the provisions of this Agreement.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with Delaware law.
21. Saving Clause. Wherever there is conflict between any provision of this
Agreement and any applicable present or future statute, law or regulation contrary to which the
Company and the Indemnitee have no legal right to contract, the latter shall prevail but (a) the
validity, legality and enforceability of the remaining provisions of this Agreement (including
without limitation, each portion of any Section of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest
extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any Section of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested thereby but in such event the
affected
- 12 -
provisions of this Agreement shall be curtailed and restricted only to the extent
necessary to bring them within applicable legal requirements.
22. Coverage; Continuation of Indemnity. The provisions of this Agreement shall
apply with respect to the Indemnitee’s service as a Director or officer of the Company prior to the
date of this Agreement (if any) and with respect to all periods of such service after the date of
this Agreement, even though the Indemnitee may have ceased to be a Director or officer of the
Company and shall inure to the benefit of the heirs, executors and administrators of Indemnitee.
All agreements and obligations of the Company contained in this Agreement shall continue during the
period the Indemnitee is a director or officer of the Company (or is or was serving at the request
of the Company as a director, trustee, general partner, managing member, officer, employee, agent
or fiduciary of another corporation, partnership, joint venture, trust, limited liability company
or other enterprise) and shall continue thereafter so long as the Indemnitee shall be subject to
any possible claim or threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that the Indemnitee was a director or officer of
the Company or serving in any other capacity referred to herein.
23. Successors. This Agreement shall be binding upon the Company and its
successors and assigns, including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the Company,
and shall inure to the benefit of Indemnitee and Indemnitee’s heirs, executors and administrators.
The Company shall require and cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or assets of the Company,
by written agreement, expressly to assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform if no such succession had
taken place.
- 13 -
24. Miscellaneous.
(a) All notices and other communications given or made pursuant to this Agreement
shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party
to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal
business hours of the recipient, and if not so confirmed, then on the next business day, (c) five
(5) days after having been sent by registered or certified mail, return receipt requested, postage
prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All communications shall be
sent:
(i) To Indemnitee at the address set forth below Indemnitee signature hereto.
(ii) To the Company at:
or to such other address as may have been furnished to Indemnitee by the Company or to the Company
by Indemnitee, as the case may be.
(b) No amendment, modification, termination or cancellation of this Agreement shall
be effective unless in writing signed by both of the parties hereto; provided, however, that the
Company may amend this Agreement from time to time without Indemnitee’s consent to the extent
deemed necessary or appropriate, in its sole discretion, to effect compliance with Section 409A of
the Code, including regulations and interpretations thereunder, which amendments may result in a
reduction of benefits provided hereunder and/or other unfavorable changes to Indemnitee.
(c) This Agreement is intended to provide for the indemnification of, and/or
purchase of insurance policies providing for payments of, expenses and damages incurred with
respect to bona fide claims against the Indemnitee, as a service provider, or the Company, as the
service recipient, in accordance with Treas. Reg. Section 1.409A-1(b)(10), pursuant to which the
Agreement shall not provide for the deferral of compensation. The Agreement shall be construed
consistently, and limited in accordance with, the provisions of such regulation.
[remainder of page intentionally left blank]
- 14 -
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.
| CALGON CARBON CORPORATION | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| INDEMNITEE | ||||||
| Sign: | ||||||
| Print Name: | ||||||
| Address: | ||||||
- 15 -
