Exhibit 10.1
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made the ________ day of _________, 2005 by and between
Dresser-Rand Group Inc., a Delaware corporation (the "Corporation"), and
_____________________, who currently is serving as a member of the Board of
Directors of the Corporation (the "Director").
WHEREAS, the Director is currently serving in the capacity described above;
WHEREAS, the Corporation wishes the Director to continue to serve in such
capacity and the Director is willing, under certain circumstances, to continue
in such capacity;
WHEREAS, the Corporation has agreed to provide the Director with the benefits
contemplated in this Agreement.
NOW, THEREFORE, in consideration of the Director's continued and future service
to the Corporation, the parties agree as follows:
1. INDEMNIFICATION. The Corporation agrees to indemnify the Director to the
full 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 Director, subject to the provisions of this
Agreement. If the Director is entitled under any provision of this
Agreement to indemnification by the Company for a portion of any Expenses
(as defined below), losses, liabilities, judgments, fines, penalties and
amounts paid in settlement incurred by the Director, but not for the total
amount thereof, the Corporation shall nevertheless indemnify the Director
for such portion.
2. 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:
(a) indemnify the Director 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 Director is, was or at any
time becomes a party, or is threatened to be made a party, by reason
of the fact that the Director 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, and
(b) pay all costs, charges and other expenses, including, but not limited
to, attorneys' fees, costs of appearance, attachment and similar bonds
(hereinafter referred to as "Expenses" incurred in connection with the
investigation and defense of any action, suit or proceeding described
in Section 2(a).
(c) The Corporation intends that the Director shall be indemnified to the
fullest extent permitted by law as provided in Section 1 and that to
the fullest extent consistent therewith no determination that
indemnification is permissible (a "Determination") shall be required
in connection with such indemnification. In no event shall a
Determination be required in connection with advancement of Expenses
pursuant to Section 5 or in connection with indemnification for
Expenses incurred as a witness or incurred in connection with any
Proceeding or portion thereof with respect to which the Director 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 Director's written request
for indemnification. At the Director's request, such Determination
shall be made by independent legal counsel in a written opinion to the
Corporation and such Director, and such counsel shall: (a) be
competent to deliver such opinion, (b) not otherwise have performed
any services for the Corporation or any of its affiliates or for the
Director 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 Director, such
consent not to be unreasonably withheld. The Corporation shall pay the
fees and expenses of such independent legal counsel. Subject to
Section 8, If a Determination unfavorable to a Director is made, the
Director shall have the right to challenge such Determination before a
court of competent jurisdiction.
3. MAINTENANCE OF D&O INSURANCE. The Corporation currently maintains
directors' and officers' liability insurance with a limit of coverage of
$40,000,000 for individual directors (the "D&O Policies").
(a) So long as the Director shall continue to serve in any capacity
described in Section 2 and thereafter so long as the Director shall be
subject to any possible action, suit or proceeding by reason of the
fact that the Director served in any of said capacities, the
Corporation will purchase and maintain in effect for the benefit of
the Director 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) 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.
(c) 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 Director to the full
extent of the coverage which would otherwise have been provided by the
D&O Policies.
4. DEFENSE OF CLAIM. With respect to any action, suit or proceeding described
in Section 2, the Corporation may elect to assume the investigation and
defense of such action, suit or proceeding with counsel it selects with the
consent of the Director, which consent shall not be unreasonably withheld.
After notice to the Director from the Corporation of its election to assume
the investigation and defense, the Corporation shall not be liable to the
Director under this Agreement for any expenses subsequently incurred by the
Director in connection with the investigation and defense other than for
services requested by the Corporation or the counsel it selected. The
Director shall have the right to employ his own counsel, but the Expenses
incurred by the Director after notice from the Corporation of its
assumption of the investigation and defense shall be at the expense of the
Director. Notwithstanding the foregoing, however, the Director shall be
entitled to separate counsel in any action, suit or proceeding brought by
or on behalf of the Corporation or as to which counsel for the director
reasonably concludes that there is a conflict of interest between the
Corporation and the Director, provided that the Corporation shall not be
required to pay the expenses of more than one such separate counsel for
persons it is indemnifying in any one action, suit or proceeding.
5. ADVANCE PAYMENT OF EXPENSE. The Director's reasonable Expenses incurred in
connection with any action, suit or proceeding described in Section 2 shall
be paid by the Corporation as they accrue, and, in any event, within 30
days after the Corporation has received written request therefor from or on
behalf of the Director. 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 Director is not entitled to be
indemnified for such Expenses under this Agreement.
6. DIRECTOR'S REIMBURSEMENT. The Director 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 Director is not entitled to
be so indemnified or to have such Expenses paid by the Corporation.
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7. 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:
(a) to the extent that payment is actually made, or for which payment is
available, to or on behalf of the Director 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;
(b) to the extent that payment has or will be made to the Director by the
Corporation otherwise than pursuant to this Agreement;
(c) to the extent that there was a final adjudication by the court of
competent jurisdiction that the Director derived an improper personal
benefit or otherwise breached his duty of loyalty to the Corporation
or its stockholders; or
(d) to the extent that there was a final adjudication by a court of
competent jurisdiction that the Director committed acts or omissions
other than in good faith or which involved fraudulent, dishonest or
intentional misconduct or knowing violation of law.
8. ENFORCEMENT OF DIRECTOR'S RIGHTS. The Director 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 Director 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
Director. The Director'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.
9. SETTLEMENT. The Corporation shall not be liable to indemnify the Director
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 Director
without the Director'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 director, 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. 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 Director against any person
or organization and the Director shall execute all papers required and
shall do everything that may be reasonably necessary to secure such rights.
11. NON-EXCLUSIVE. Nothing in this Agreement shall diminish or otherwise
restrict, and this Agreement shall not be deemed exclusive of, the
Director's rights to indemnification or advancement of Expenses under any
provision of the Delaware General Corporation Law or the Certificate of
Incorporation or By-Laws of the Corporation or otherwise. This Agreement
shall not constitute an employment agreement, supersede any employment
agreement to which the Director is a party or create any right of the
Director to continued employment or appointment. No resignation or
termination of the Director's position as such shall affect Director's
rights under this Agreement.
12. NOTICE TO THE CORPORATION. The Director will promptly notify the
Corporation of any threatened, pending or completed action, suit or
proceeding against the Director 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 Director otherwise than under
this Agreement, and shall relieve the Corporation from liability hereunder
only to the extent the Corporation has been prejudiced.
13. 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:
If to the Corporation:
Dresser-Rand Group Inc.
Xxxx Xxxxx Xxxxx
Xxxxx, XX 00000
Attn: General Counsel
If to the Director:
Or at such other address as the party may furnish to the other party by ten
(10) days' prior written notice.
14. 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. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
16. BINDING EFFECT. This Agreement shall be binding upon the Director and upon
the Corporation, its successors and assigns, and shall inure to the benefit
of the Director, his heirs, personal representatives and assigns and to the
benefit of the Corporation, its successors and assigns.
17. AMENDMENT AND TERMINATION. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed
by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement.
Director: Dresser-Rand Group Inc.
By:
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Its:
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