Exhibit 10(j)
FORM OF INDEMNIFICATION ASSURANCE AGREEMENT
[Bethlehem Steel Corporation]
[Name and Address of
Director or Officer]
Dear :
This letter will confirm the agreement and understanding between
Bethlehem Steel Corporation (the "Company") and you regarding your service as a
[Director/Officer] of the Company.
It is and has been the policy of the Company to indemnify its officers
and directors against any costs, expenses and other liabilities to which they
may become subject by reason of their service to the Company, and to insure its
directors and officers against such liabilities, as and to the extent permitted
by applicable law and in accordance with the principles of good corporate
governance. In this regard, the Company's By-laws (Article IX) require that
the Company indemnify and advance costs and expenses to (collectively,
"indemnify") its directors and officers as permitted by Delaware law. A copy
of the relevant provisions of the Company's By-laws, as amended, is attached
hereto.
In consideration of your service as a [Director/Officer] of the
Company, the Company shall indemnify you, and hereby confirms its agreement to
indemnify you, to the full extent provided by applicable law and the By-laws of
the Company as currently in effect. In particular, as provided by the By-
laws, the Company shall make any necessary determination as to your entitlement
to indemnification in respect of any liability within 60 days of receiving a
written request from you for indemnification against such liability. You have
agreed to provide the Company with such information or documentation as the
Company may reasonably request to evidence the liabilities against which
indemnification is sought or as may be necessary to permit the Company to
submit a claim in respect thereof under any applicable directors and officers
liability insurance or other liability insurance policy. You have further
agreed to cooperate with the Company in the making of any determination
regarding your entitlement to indemnification. If the Company does not make a
determination within the required 60-day period, a favorable determination will
be deemed to be made, and you shall be entitled to payment, subject only to
your written agreement to refund such payment if a contrary determination is
later made and the delay was by reason of the inability of the Company to make
such determination within the 60-day period. In the event the Company shall
determine that you are not entitled to indemnification, the Company shall give
you written notice thereof specifying the reason therefor, including any
determinations of fact or conclusions of law relied upon in reaching such
determination. Notwithstanding any determination made by the Company that you
are not entitled to indemnification, you shall be entitled to seek a de novo
judicial determination of your right to indemnification under the By-laws and
this agreement by commencing an appropriate action therefor within 180 days
after the Company shall notify you of its determination. The Company shall not
oppose any such action by reason of any prior determination made by it as to
your right to indemnification or, except in good faith, raise any objection not
specifically relating to the merits of your indemnification claim or not
considered by the Company in making its own determination. In any such
proceeding, the Company shall bear the burden of proof in showing that your
conduct did not meet the applicable standard of conduct required by the By-laws
or applicable law for indemnification. It is understood that, as provided in
Section 4 of Article IX of the By-laws, any expenses incurred by you in any
investigation or proceeding by the Company or before any court commenced for
the purpose of making any such determination shall be reimbursed by the
Company. No future amendment of the By-laws shall diminish your rights under
this agreement, unless you shall have consented to such amendment.
Your right to indemnification as aforesaid shall be in addition to any
right to remuneration to which you may from time to time be entitled as a
[Director/Officer].
It is understood and agreed that your right to indemnification shall
not entitle you to continue in your present position with the Company or any
future position to which you may be appointed or elected and that you shall be
entitled to indemnification under the By-laws only in respect to liabilities
arising out of acts or omissions or alleged acts or omissions by you as a
[Director/Officer] or as otherwise provided by the By-laws, but you shall be
entitled to such indemnification with respect to any such liability, whether
incurred or arising during or after your service as a [Director/Officer] and
whether before or after the date of this letter, in respect of any claim,
cause, action, proceeding or investigation, whether commenced, accruing or
arising during or after your service as a [Director/Officer] and whether before
or after the date of this letter.
In further consideration of your service as a [Director/Officer] of
the Company, the Company in connection with its indemnification policy has
arranged for the issuance of, and you shall be entitled to the benefits of, an
"Irrevocable Straight Standby Letter of Credit" issued by Xxxxxx Guaranty Trust
Company of New York. Said letter of credit has been arranged for the purpose
of assuring payment to you, certain other current and former directors and
officers of the Company and future directors, officers and employees of the
Company and its affiliates designated by the Board of Directors of the Company
("Indemnitees") of any amounts to which you and they may become entitled as
indemnification pursuant to the By-laws in the event that, for any reason, the
Company shall fail promptly to pay to you, upon written request therefor, any
such indemnification, said assurance for all Indemnitees being limited at any
time to $5,000,000 in aggregate amount. The Company understands that there has
been established an irrevocable trust, the Bethlehem Indemnification Trust, for
which First Valley Bank, Bethlehem, Pennsylvania, acts as trustee, for the
purpose, among other things, of administering the respective interests of the
Indemnitees in said letter of credit, and the Company has consented to the
issuance and delivery of said letter of credit to the Bethlehem Indemnification
Trust. Unless renewed or replaced by a comparable letter of credit in the
amount of $5,000,000, the full undrawn amount of said letter of credit may be
drawn upon prior to the expiration thereof. Drawings on said letter of credit
may be arranged through the Bethlehem Indemnification Trust, as provided by the
trust agreement therefor, by contacting the First Valley Bank, Xxx Xxxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000. You have agreed to repay to the
Bethlehem Indemnification Trust any amount paid to you by such trust (i) if it
shall ultimately be determined (by the Company and upon expiration of the
180-day period for commencement of a judicial proceeding for a de novo
determination or by a final judicial determination) that you are not entitled
under this agreement or otherwise to indemnification from Bethlehem in respect
of the liability for which you shall have received payment or (ii) if you shall
subsequently receive payment in respect of such liability from any liability
insurer or from Bethlehem or any successor thereto. It is agreed that, in
addition to the rights of any other person to do so, the Company shall have the
right to compel any repayment to the Bethlehem Indemnification Trust so
required.
This agreement shall terminate upon the later of (i) the tenth
anniversary of the date on which you shall cease to be a director or officer of
the Company or (ii) the final termination or resolution of all actions, suits,
proceedings or investigations commenced within such ten-year period and
relating to the Company or any of its affiliates or your services thereto to
which you may be or become a party and of all claims for indemnification by you
under this agreement or against the Bethlehem Indemnification Trust asserted
within such ten-year period. This agreement supersedes any and all prior
agreements between the Company and you relating to the subject matter hereof.
It is understood and agreed that this agreement is binding upon the Company and
its successors and shall inure to your benefit and that of your heirs,
distributees and legal representatives.
2
This agreement, and the interpretation and enforcement hereof, shall
be governed by the laws of the State of Delaware. In confirmation of the
provisions of the Company's By-laws, the Company hereby agrees to pay, and you
shall be held harmless from and indemnified against, any costs and expenses
(including attorneys' fees) which you may reasonably incur in connection with
any challenge to the validity of, or the performance and enforcement of, this
agreement, in the same manner as provided by the Company's By-laws.
If the foregoing is in accordance with your understanding of our
agreement, kindly countersign the enclosed copies of this letter, whereupon
this letter shall become a binding agreement in accordance with the laws of the
State of Delaware.
Very truly yours,
BETHLEHEM STEEL CORPORATION
By:
------------------------
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[Signature of Director/Officer]
3
Schedule A
ADDITIONAL INDEMNITEES
----------------------
Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxx 0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxx
00 Xxxxx Xxxx 0000 Xxxxx Xxxxx Xxxx
Xxxxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxx
0000 Xxxxx Xxxx 0000 Xxxx Xxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxxxxxx X. Boylston Xxxxxx X. Xxxx
0000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxxx 0 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Xxxxxxxx X. Xxxxxxxxx Xxxxx X. Xxx
00 Xxxxxx Xxxx Xxx 0000
Xxxxxxxxx, XX 00000 Xxxxx Xxxxx Xxxxx, XX 00000
Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxx 0 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx, Xx. Xxxxxxx X. Xxxxxxxxx
The Meadow at Lonleaf 00 Xxxxxxx Xxx
000 Xxxxxxxx Xxxx Xxxxxxxxxx, XX 00000
Xxxxxxxx Xxxxx, XX 00000
Xxxxxx X. Xxxxxxx, Xx. X. Xxxx Xxxxxxxxxx
000 Xxxxx Xxxxx Xxxx 0000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
Xxxx X. Xxxxxx Xxxxxx X. Xxxxxx
0 Xxx Xxxxx 0 Xxxxxxxx Xxxxxx, 0X
Xx. Xxxxxx Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx Xxxxxx X. Xxxx
00 Xxxxxxxx Xxxxx 000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000
2
Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxx 0 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
211 Central Park West 0000 Xxxxxxx Xxxx
Xxx Xxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxx Xxxxxxx X. Xxxxxxxx
000 Xxxx Xxxxxx, Xxx. 0X 0000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxxxxxx, XX 00000
Xxxx X. Xxxxxx Xxxxxxx X. Xxxxx
0000 Xxxxxx Xxxxx 0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx Xxxxx X. Post
000 Xxxxx Xxxxxx 000 Xxxxxxxxx Xxxx
Xxxxxxxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxx Van X. Xxxxxx
0000 Xxxxxxxxxx Xxxxxx 000 Xxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxx Xxxxxxx, XX 00000
Xxxxxx XxXxxxxxxx, Xx. Xxxxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxx 0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxxx Xxxxxx X. Xxxxxx
000 Xxxx Xxxxxx Xxxx 0000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000 Xxxxx Xx. Xxxxx, XX 00000
Xxxxxx X. Xxxxxx, Xx. Xxxx X. Ruffle
00 Xxxxx Xxxxxxxx Xxxx Xxxxxxxxxxxxx Xxxx
P. O. Xxx 0000 Xxx Xxxxxx, XX 00000
Xxxxxxxx, XX 00000
Xxxxxxxxx X. Xxxxxxx, Xx. Xxxxxxx X. Xxxxxxxxxx
000 Xxxxxxxxx Xxxx 000 X. Xxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxx, Xx.
000 Xxxxxxx Xxxxxx X. X. Xxx 000
Xxxxxxxx, XX 00000 Xxxxx Xxxxx, XX 00000
