INDEMNIFICATION AGREEMENT
THIS
AGREEMENT is made the __ day of ____, ____, by and between Dresser-Rand Group
Inc., a Delaware corporation (the "Corporation"), and ______________________
(the “Indemnitee”), who serves as [a director/an officer/ an employee] of the
Corporation.
WHEREAS,
the Indemnitee has been appointed to serve in the capacity described
above;
WHEREAS,
the Corporation wishes the Indemnitee to continue to serve in such capacity
and
the Indemnitee is willing, under certain circumstances, to continue in such
capacity;
WHEREAS,
the Corporation has agreed to provide the Indemnitee with the benefits
contemplated in this Agreement.
NOW,
THEREFORE, in consideration of the Indemnitee's continued and future service
to
the Corporation, the parties agree as follows:
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1.
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INDEMNIFICATION.
The Corporation agrees to indemnify the Indemnitee to the fullest
extent
permitted by Delaware General Corporation Law, as it exists now and
as it
may be amended in the future to provide additional indemnification
for the
Indemnitee, subject to the provisions of this Agreement. If the Indemnitee
is entitled under any provision of this Agreement to indemnification
by
the Corporation for a portion of any Expenses (as defined below),
losses,
liabilities, judgments, fines, penalties and amounts paid in settlement
incurred by the Indemnitee, but not for the total amount thereof,
the
Corporation shall nevertheless indemnify the Indemnitee for such
portion.
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2.
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ADDITIONAL
INDEMNIFICATION AND PAYMENT OF EXPENSES. Without limiting the
indemnification provided in Section 1 and subject to the limitations,
terms and conditions of this Agreement, including, but not limited
to, the
limitations in Section 7, the Corporation agrees
to:
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(a)
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indemnify
the Indemnitee against all judgments for both compensatory and punitive
damages, fines, penalties and settlements incurred in connection
with any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (including, but
not
limited to, any action by or in the right of the Corporation) (a
"Proceeding"), to which the Indemnitee is, was or at any time becomes
a
party, or is threatened to be made a party, by reason of the fact
that the
Indemnitee is, was or at any time becomes a director, officer, employee,
agent or fiduciary of the Corporation, or is or was serving or at
any time
serves at the request of the Corporation as a director, officer,
employee,
agent, or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise or with respect to any employee benefit
plan (or
its participants or beneficiaries) of the Corporation or any such
other
enterprise, in each case if Indemnitee acted in good faith and in
a manner
he reasonably believed to be in or not opposed to the best interests
of
the Corporation, and with respect to any criminal Proceeding, had
no
reasonable cause to believe his or her conduct was unlawful; provided,
however, that with respect to a Proceeding by or in the right of
the
Corporation, no such indemnification shall be made in respect of
any
claim, issue, or matter as to which Delaware law expressly prohibits
such
indemnification by reason of any adjudication of liability of Indemnitee
to the Corporation, unless and only to the extent that the Court
of
Chancery of the State of Delaware or the court in which such action
or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the
case, Indemnitee is entitled to indemnification for such costs, judgments,
penalties, fines, liabilities and Expenses as such court shall deem
proper,
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(b)
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pay
all costs, charges and other expenses, including, but not limited
to,
attorneys' fees, costs of appearance, attachment and similar bonds
(herein
referred to as "Expenses") incurred in connection with the investigation
and defense of any action, suit or proceeding for which indemnification
would be available under Section 2(a),
and
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(c)
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pay
all Expenses actually and reasonably incurred or suffered by Indemnitee
or
on Indemnitee's behalf if Indemnitee appears as a witness or otherwise
incurs legal expenses as a result of or related to Indemnitee's service
as
a director or officer of the Corporation, in any threatened, pending
or
completed legal, administrative, investigative or other proceeding
or
matter to which Indemnitee neither is, nor is threatened to be made,
a
party.
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Upon
written request by Indemnitee for indemnification under clause 2(a) or 2(b),
the
entitlement of Indemnitee to indemnification (unless ordered by a court order)
shall be determined by the following person or persons who shall be empowered
to
make such determination (a “Determination”): (a) the Board of Directors of the
Corporation by a majority vote of the directors who are not party to such
action, suit or proceeding (the “Disinterested Directors”), whether or not such
majority constitutes a quorum; (b) a committee of Disinterested Directors
designated by a majority vote of such directors, whether or not such majority
constitutes a quorum; (c) if there are no Disinterested Directors, or if the
Disinterested Directors so direct, by Independent Counsel (defined below) in
a
written opinion to the Board of Directors, a copy of which shall be delivered
to
Indemnitee; or (d) the stockholders of the Corporation. Any Expenses incurred
by
Indemnitee in connection with a request for indemnification or payment of
Expenses hereunder, under any other agreement, any provision of the
Corporation's By-laws or any directors' and officers' liability insurance,
shall
be borne by the Corporation. The Corporation hereby indemnifies Indemnitee
for
any such Expense and agrees to hold Indemnitee harmless therefrom irrespective
of the outcome of the determination of Indemnitee’s entitlement to
indemnification. In no event shall a Determination be required in connection
with advancement of Expenses pursuant to Section 5, in connection with
indemnification for Expenses incurred as a witness pursuant to clause 2(c),
or
incurred in connection with any Proceeding or portion thereof with respect
to
which the Indemnitee has been successful on the merits or otherwise. Any
decision that a Determination is required by law in connection with any other
indemnification of Indemnitee, and any such Determination, shall be made within
30 days after receipt of the Indemnitee's written request for indemnification.
“Independent Counsel” shall: (a) be competent to deliver the opinion required,
(b) not otherwise have performed any services for the Corporation or any of
its
affiliates or for the Indemnitee within the past three years (other than with
respect to matters concerning the rights of a director or officer of the
Corporation under this Agreement or a similar agreement), and (c) be selected
by
the Corporation with the consent of the Indemnitee, such consent not to be
unreasonably withheld. The Corporation shall pay the fees and expenses of such
independent legal counsel. Upon failure of the Board so to select such
Independent Counsel or upon failure of Indemnitee so to approve, such
Independent Counsel shall be selected upon application to a court of competent
jurisdiction. Subject to Section 8, If a Determination unfavorable to a
Indemnitee is made, the Indemnitee shall have the right to challenge such
Determination before a court of competent jurisdiction.
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3.
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MAINTENANCE
OF D&O INSURANCE. The Corporation currently maintains directors' and
officers' liability insurance with a limit of coverage of $__________
for
individual directors (the "D&O
Policies").
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(a)
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So
long as the Indemnitee shall continue to serve in any capacity described
in Section 2 and thereafter so long as the Indemnitee shall be subject
to
any possible action, suit or proceeding by reason of the fact that
the
Indemnitee served in any of said capacities, the Corporation will
purchase
and maintain in effect for the benefit of the Indemnitee one or more
valid, binding and enforceable policies of directors' and officers'
liability insurance providing, in all respects, (i) coverage and
amounts
at least comparable to that provided pursuant to the D&O Policies and
(ii) the same rights and benefits accorded to the most favorably
insured
of the Corporation's and its subsidiaries' then current directors
and
officers.
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(b)
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Notwithstanding
Section 3(a), the Corporation shall not be required to maintain directors'
and officers' liability insurance in effect if such insurance is
not
reasonably available or if, in the reasonable business judgment of
the
Board of Directors of the Corporation as it may exist from time to
time,
either (i) the premium cost for such insurance is substantially
disproportionate to the amount of insurance or (ii) the coverage
is so
limited by exclusions that there is insufficient benefit provided
by such
insurance.
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(c)
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If
the Corporation, acting under Section 3(b), does not purchase and
maintain
in effect directors' and officers' liability insurance, the Corporation
shall indemnify and hold harmless the Indemnitee to the full extent
of the
coverage which would otherwise have been provided by the D&O
Policies.
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4.
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DEFENSE
OF CLAIM. With respect to any action, suit or proceeding described
in
Section 2, the Corporation may participate therein at its own expense,
and
may elect to assume the investigation and defense of such action,
suit or
proceeding with counsel it selects with the consent of the Indemnitee,
which consent shall not be unreasonably withheld. After notice to
the
Indemnitee from the Corporation of its election to assume the
investigation and defense, the Corporation shall not be liable to
the
Indemnitee under this Agreement for any expenses subsequently incurred
by
the Indemnitee in connection with the investigation and defense other
than
for services requested by the Corporation or the counsel it selected.
The
Indemnitee shall have the right to employ his own counsel, but the
Expenses incurred by the Indemnitee after notice from the Corporation
of
its assumption of the investigation and defense shall be at the expense
of
the Indemnitee, unless (i) the employment of counsel by Indemnitee
has been authorized by the Corporation, (ii) there is a conflict of
interest between the Corporation and Indemnitee in the conduct of
the
defense of such action or (iii) the Corporation shall not within 60
calendar days of receipt of notice from Indemnitee in fact have employed
counsel to assume the defense of the action, in each of which cases
the
fees and expenses of Indemnitee's counsel shall be at the expense
of the
Corporation.
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5.
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ADVANCE
PAYMENT OF EXPENSE. The Indemnitee's reasonable Expenses incurred
in
connection with any action, suit or proceeding described in Section
2(a)
shall be paid by the Corporation within 30 days after the Corporation
has
received written statement from or on behalf of the Indemnitee requesting
such payment or payments from time to time. Such statement or statements
shall reasonably evidence the expenses and costs incurred by Indemnitee
in
connection therewith and shall include or be accompanied by an
undertaking, in substantially the form attached as Exhibit 1, by
or on
behalf of Indemnitee confirming Indemnitee’s obligation under Section 6 to
reimburse such amounts, if required thereunder. Indemnitee's undertaking
to reimburse any such amounts is not required to be secured. The
Corporation shall continue to make such payments unless and until
there
has been a final adjudication by a court of competent jurisdiction
establishing that the Indemnitee is not entitled to be indemnified
for
such Expenses under this Agreement.
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6.
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INDEMNITEE'S
REIMBURSEMENT. The Indemnitee agrees to reimburse the Corporation
for all
amounts paid by the Corporation pursuant to Sections 1, 2, 3(c),
4, and 5
of this Agreement in the event and to the extent, but only in the
event
and only to the extent that there is a final adjudication by a court
of
competent jurisdiction establishing that the Indemnitee is not entitled
to
be so indemnified or to have such Expenses paid by the Corporation.
Indemnitee’s entitlement to such Expenses shall include those incurred in
connection with any Proceeding by Indemnitee seeking a judgment in
court
pursuant to this Agreement (including the enforcement of this provision).
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7.
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LIMITATIONS
ON INDEMNIFICATION AND ADVANCEMENT. Notwithstanding anything in the
foregoing to the contrary, the Corporation shall not be liable under
this
Agreement to make any indemnity payment or advancement of Expenses
in
connection with any action, suit or proceeding or part thereof (including
claims and counterclaims):
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(a)
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to
the extent that payment is actually made, or for which payment is
available, to or on behalf of the Indemnitee under an insurance policy,
except in respect of any amount in excess of the limits of liability
of
such policy or any applicable deductible for such policy; [For
Director’s Form:
or]
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(b)
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to
the extent that payment (other than a payment described in paragraph
11
(c)) has or will be made to the Indemnitee by the Corporation otherwise
than pursuant to this Agreement[For
Director’s Form:
.][For
all others:
;
or
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(c)
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initiated
by Indemnitee[For
Form in which the officer also serves as a director:
in
[his/her] capacity as an officer or employee of the Corporation],
except a
judicial proceeding pursuant to Section 8 to enforce rights under
this
Agreement, unless the action, suit or proceeding (or part thereof)
was
authorized by the Board of Directors of the Corporation.]
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8.
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ENFORCEMENT
OF INDEMNITEE'S RIGHTS. The Indemnitee shall have the right to enforce
this Agreement only in the state courts of the State of Delaware
if the
Corporation either fails to Indemnify the Indemnitee pursuant to
Section
1, 2 or 3(c) or fails to advance Expenses pursuant to Section 5 within
30
days of the receipt of written request to do so from or on behalf
of the
Indemnitee. The Indemnitee's Expenses incurred in successfully
establishing his right to indemnification or advancement of Expenses,
in
whole or in part, in any such action (or settlement thereof) (including
any challenge to an unfavorable Determination pursuant to Section
2) shall
be paid by the Corporation.
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9.
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SETTLEMENT.
The Corporation shall not be liable to indemnify the Indemnitee under
this
Agreement for any amounts paid in settlement of any action, suit
or
proceeding without its written consent, which consent shall not be
unreasonably withheld. The Corporation shall not settle any action,
suit
or proceeding which would impose any penalty or limitation on the
Indemnitee without the Indemnitee's written consent, which consent
shall
not be unreasonably withheld, conditioned or delayed. In the event
that
consent is not given and the parties hereto are unable to agree on
a
proposed settlement, independent legal counsel shall be retained
by the
Corporation, at its expense, with the consent of the Indemnitee,
which
consent shall not be unreasonably withheld, conditioned or delayed
for the
purpose of determining whether or not the proposed settlement is
reasonable under all the circumstances, and if independent legal
counsel
determines the proposed settlement is reasonable, the settlement
may be
consummated without the consent of the other
party.
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10.
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CORPORATE
SUBROGATION RIGHTS. In the event of any payment under this Agreement,
the
Corporation shall be subrogated to the extent of such payment to
all of
the rights of recovery of the Indemnitee against any person or
organization and the Indemnitee shall execute all papers required
and
shall do everything that may be reasonably necessary to secure such
rights.
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11.
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NON-EXCLUSIVE.
Nothing in this Agreement shall diminish or otherwise restrict, and
this
Agreement shall not be deemed exclusive of, the Indemnitee's rights
to,
(a) indemnification, (b) advancement of Expenses under (i) any provision
of the Delaware General Corporation Law, (ii) the Certificate of
Incorporation, (iii) By-Laws of the Corporation, or (iv) otherwise,
or (c)
compensation, whether cash or equity, paid by the Corporation as
consideration for the Indemnitee serving as a Indemnitee of the
Corporation. This Agreement shall not constitute an employment agreement,
supersede any employment agreement to which the Indemnitee is a party
or
create any right of the Indemnitee to continued employment or appointment.
No resignation or termination of the Indemnitee's position as such
shall
affect Indemnitee's rights under this
Agreement.
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12.
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NOTICE
TO THE CORPORATION. The Indemnitee will promptly notify the Corporation
of
any threatened, pending or completed action, suit or proceeding against
the Indemnitee described in Section 2. The failure to notify or promptly
notify the Corporation shall not relieve the Corporation from any
liability which it may have to the Indemnitee otherwise than under
this
Agreement, and shall relieve the Corporation from liability hereunder
only
to the extent the Corporation has been
prejudiced.
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13.
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NOTICES.
Any notice that is required or permitted to be given under this Agreement
shall be in writing and shall be personally delivered or deposited
in the
United States mail, certified or registered mail with proper postage
prepaid and addressed:
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If
to the Corporation:
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0000
Xxxx Xxx Xxxxxxx Xxxx. X.
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Xxxxxxx,
Xxxxx 00000
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Attn:
General Counsel
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If
to the Indemnitee:
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Or at such other address as the party may furnish to the other party by ten (10) days' prior written notice.
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14.
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SEPARABILITY.
Each of the provisions of this Agreement is a separate and distinct
agreement and independent of the others, so that if any provision
shall be
held to be invalid or unenforceable for any reason, such invalidity
or
unenforceability shall not affect the validity or enforceability
of the
other provisions.
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15.
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GOVERNING
LAW. This Agreement shall be governed by and construed in accordance
with
the laws of the State of Delaware.
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16.
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BINDING
EFFECT. This Agreement shall be binding upon the Indemnitee and upon
the
Corporation, its successors and assigns, and shall inure to the benefit
of
the Indemnitee, his heirs, personal representatives and assigns and
to the
benefit of the Corporation, its successors and
assigns.
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17.
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AMENDMENT
AND TERMINATION. No amendment, modification, termination or cancellation
of this Agreement shall be effective unless in writing signed by
both
parties.
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18.
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ENTIRE
AGREEMENT. This Agreement, having an effective date as first written
above, contains the entire agreement and understanding of the parties
with
respect to the subject matter hereof and supersedes all prior
understandings, arrangements, representations, warranties and agreements
between the parties, whether oral or written, with respect to the
subject
matter of this Agreement. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all
of which
shall collectively constitute one and the same instrument. Faxed
copies
shall be given the full force and effect as an
original.
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IN
WITNESS WHEREOF, the parties have executed this Agreement.
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Indemnitee
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By:
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Its:
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EXHIBIT
1
UNDERTAKING
TO REPAY INDEMNIFICATION EXPENSES
I
___________________________________________________, agree to reimburse the
Corporation for all expenses paid to me by the Corporation in connection with
any Proceeding (as defined in the Indemnification Agreement dated as of
___________ between me and the Corporation), in the event, and to the extent
that it shall finally be determined after all appeals by a court of competent
jurisdiction that I am not entitled to be indemnified by the Corporation for
such expenses.
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Signature
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Typed Name
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Office
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)
ss:
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Before
me
______________________,
on this
day personally appeared ___________________,
known
to me to be the person whose name is subscribed to the foregoing instrument,
and
who, after being duly sworn, stated that the contents of said instrument is
to
the best of his/her knowledge and belief true and correct and who acknowledged
that he/she executed the same for the purpose and consideration therein
expressed.
GIVEN
under my hand and official seal at ________, this _______
day of
___________,
200__.
My
commission expires:
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