Exhibit 10.30
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is made as of the 25th day of August, 2003,
by and between Safety Components International, Inc., Automotive Safety
Components International, Inc., and Safety Components Fabric Technologies, Inc.,
each a Delaware corporation (individually and collectively referred to herein as
the "Corporation"), and _________________ (the "Indemnitee"), a director and/or
officer of the Corporation.
Recitals:
A. It is essential that each Corporation be able to retain and attract as
directors and officers the most capable persons available.
B. The substantial increase in corporate litigation and other
investigative, regulatory and enforcement actions subjects directors and
officers to expensive risks at the same time that the availability of directors'
and officers' liability insurance has been severely limited.
C. It is now and has always been the express policy of each Corporation to
indemnify its directors and officers.
D. The Indemnitee does not regard the protection available under the
respective certificates of incorporation and insurance of each Corporation as
adequate in the present circumstances, and may not be willing to serve or
continue to serve as a director and/or officer without adequate protection.
E. Each Corporation desires the Indemnitee to serve, or continue to serve,
as a director and/or officer of the Corporation.
NOW, THEREFORE, each Corporation, jointly and severally with each other
Corporation, and the Indemnitee do hereby agree as follows:
1. Agreement to Serve. The Indemnitee agrees to serve or continue to serve
as a director and/or officer of the Corporation for so long as the Indemnitee is
duly elected or appointed or until such time as the Indemnitee tenders a
resignation in writing.
2. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit, audit, arbitration, alternative dispute resolution
proceeding, administrative hearing or other proceeding, whether brought by or in
the right of the Corporation or otherwise and whether of a civil, criminal,
administrative, investigative,
regulatory or enforcement nature, including without limitation actions involving
the U.S. Securities and Exchange Commission, state securities commissions, the
U.S. Department of Justice, the Federal Transportation Safety Board, the
Internal Revenue Service and state and local taxing authorities, and any appeal
therefrom.
(b) The term "Corporate Status" shall mean the status of a person
who is or was a director, officer, partner, employee, agent or trustee of, or in
a similar capacity with, the Corporation, or is or was serving, or has agreed to
serve, at the request of the Corporation, as a director, officer, partner,
employee, agent or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust, limited liability company or
other enterprise.
(c) The term "Expenses" shall include, without limitation,
attorneys' fees, retainers, court costs, transcript costs, fees and expenses of
experts, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees and other disbursements and
expenses reasonably incurred by or on behalf of the Indemnitee, but shall not
include the amount of judgments, fines or penalties against Indemnitee or
amounts paid in settlement in connection with such matters.
(d) References to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any excise tax assessed with respect
to any employee benefit plan; references to "serving at the request of the
Corporation" shall include any service as a director, officer, partner,
employee, agent or trustee of, or in a similar capacity with, the Corporation
which imposes duties on, or involves services by, such director, officer,
partner, employee, agent or trustee with respect to an employee benefit plan or
its participants or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the 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 Corporation" as
referred to in this Agreement.
3. Indemnification in Third-Party Proceedings. The Corporation shall
indemnify the Indemnitee in accordance with the provisions of this Section 3 if
the Indemnitee was or is a party to or is threatened to be made a party to or
otherwise involved in any Proceeding (other than a Proceeding by or in the right
of the Corporation to procure a judgment in its favor) by reason of the
Indemnitee's Corporate Status or by reason of any action alleged to have been
taken or omitted in connection therewith, against all Expenses, judgments,
fines, penalties and amounts paid in settlement actually and reasonably incurred
by or on behalf of the Indemnitee in connection with such Proceeding, if the
Indemnitee acted in good faith and in a manner which the Indemnitee 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 that
his or her conduct was unlawful. The termination of any Proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Indemnitee did
not act in good faith and in a manner which the Indemnitee reasonably believed
to be in, or not opposed to, the best interests of
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the Corporation, and, with respect to any criminal Proceeding, had reasonable
cause to believe that his or her conduct was unlawful.
4. Indemnification in Proceedings by or in the Right of the Corporation.
The Corporation shall indemnify the Indemnitee in accordance with the provisions
of this Section 4 if the Indemnitee was or is a party to or is threatened to be
made a party to or otherwise involved in any Proceeding by or in the right of
the Corporation to procure a judgment in its favor by reason of the Indemnitee's
Corporate Status or by reason of any action alleged to have been taken or
omitted in connection therewith, against all Expenses and, to the extent
permitted by law, amounts paid in settlement actually and reasonably incurred by
or on behalf of the Indemnitee in connection with such Proceeding, if the
Indemnitee acted in good faith and in a manner which the Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
except that no indemnification shall be made under this Section 4 in respect of
any claim, issue, or matter as to which the Indemnitee shall have been adjudged
to be liable to the Corporation, unless, and only to the extent, that the Court
of Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such Expenses as the Court of
Chancery or such other court shall deem proper.
5. Exceptions to Right of Indemnification. Notwithstanding anything to the
contrary in this Agreement: (a) except as set forth in Section 10, the
Corporation shall not indemnify the Indemnitee in connection with a Proceeding
(or part thereof) initiated by the Indemnitee unless the initiation thereof was
approved by the Board of Directors of the Corporation; (b) the Corporation shall
not indemnify the Indemnitee to the extent the Indemnitee is reimbursed from the
proceeds of insurance, and in the event the Corporation makes any
indemnification payments to the Indemnitee and the Indemnitee is subsequently
reimbursed for such indemnification payments from the proceeds of insurance, the
Indemnitee shall promptly refund such indemnification payments to the
Corporation to the extent of such insurance reimbursement; and (c) the
Corporation shall not indemnify the Indemnitee hereunder to the extent that such
indemnification is prohibited in the Corporation's certificate of incorporation.
6. Indemnification of Expenses of Successful Party. Notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee has been
successful, on the merits or otherwise, in defense of any Proceeding or in
defense of any claim, issue or matter therein, the Indemnitee shall be
indemnified against all Expenses incurred by or on behalf of the Indemnitee in
connection therewith. Without limiting the foregoing, if any Proceeding or any
claim, issue or matter therein is disposed of, on the merits or otherwise
(including a disposition without prejudice), without (i) an adjudication that
the Indemnitee was liable to the Corporation, (ii) a plea of guilty or nolo
contendere by the Indemnitee, (iii) an adjudication that the Indemnitee did not
act in good faith and in a manner the Indemnitee reasonably believed to be in or
not opposed to the best interests of the Corporation and (iv) with respect to
any criminal proceeding, an adjudication that the Indemnitee had reasonable
cause to believe his or her conduct was unlawful, the
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Indemnitee shall be considered for the purposes hereof to have been wholly
successful with respect thereto.
7. Notification and Defense of Claim. As a condition precedent to the
Indemnitee's right to be indemnified, the Indemnitee must notify the Corporation
in writing as soon as practicable of any Proceeding for which indemnity will or
could be sought; provided, however, that the failure to provide such notice to
the Corporation shall not relieve the Corporation of any liability which it may
have to the Indemnitee except to the extent the Corporation is actually
prejudiced by such failure. With respect to any Proceeding of which the
Corporation is so notified, the Corporation will be entitled to participate
therein at its own expense and/or to assume the defense thereof at its own
expense, with legal counsel reasonably acceptable to the Indemnitee. After
notice from the Corporation to the Indemnitee of its election so to assume such
defense, the Corporation shall not be liable to the Indemnitee for any legal or
other expenses subsequently incurred by the Indemnitee in connection with such
Proceeding, other than as provided below in this Section 7. The Indemnitee shall
have the right to employ his or her own counsel in connection with such
Proceeding, but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof shall be at the expense
of the Indemnitee unless (i) the employment of counsel by the Indemnitee has
been authorized by the Corporation, (ii) counsel to the Indemnitee shall have
reasonably concluded that there may be a conflict of interest or position on any
significant issue between the Corporation and the Indemnitee in the conduct of
the defense of such Proceeding or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such Proceeding, in each of which
cases the fees and expenses of counsel for the Indemnitee shall be at the
expense of the Corporation, except as otherwise expressly provided by this
Agreement. The Corporation shall not be entitled, without the consent of the
Indemnitee, to assume the defense of any claim brought by or in the right of the
Corporation or as to which counsel for the Indemnitee shall have reasonably made
the conclusion provided for in clause (ii) above. The Corporation shall not be
required to indemnify the Indemnitee under this Agreement for any amounts paid
in settlement of any Proceeding effected without its written consent. The
Corporation shall not settle any Proceeding in any manner which would impose any
penalty or limitation on the Indemnitee without the Indemnitee's written
consent. Neither the Corporation nor the Indemnitee will unreasonably withhold
or delay their consent to any proposed settlement.
8. Advancement of Expenses. Subject to the provisions of Section 9 of this
Agreement, to the extent that the Corporation does not assume the defense
pursuant to Section 7 of this Agreement of any Proceeding of which the
Corporation receives notice under this Agreement or to the extent that the
Corporation is required to pay the expenses of the Indemnitee's own counsel
pursuant to Section 7, any Expenses incurred by or on behalf of the Indemnitee
in defending such Proceeding shall be paid by the Corporation in advance of the
final disposition of such Proceeding; provided, however, that the payment of
such Expenses incurred by or on behalf of the Indemnitee in advance of the final
disposition of such Proceeding shall be made only upon receipt of an undertaking
by or on behalf of the Indemnitee to repay all amounts so advanced in the event
that it shall
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ultimately be determined that the Indemnitee is not entitled to be indemnified
by the Corporation as authorized in this Agreement. Such undertaking shall be
accepted without reference to the financial ability of the Indemnitee to make
repayment.
9. Procedure for Indemnification and Advancement of Expenses.
(a) In order to obtain indemnification or advancement of Expenses
pursuant to Sections 3, 4, 6 or 8 of this Agreement, the Indemnitee shall submit
to the Corporation a written request, including in such request such
documentation and information as is reasonably available to the Indemnitee and
is reasonably necessary to determine whether and to what extent the Indemnitee
is entitled to indemnification or advancement of expenses.
(b) Any such indemnification shall be made promptly, and in any
event within 30 days after receipt by the Corporation of the written request of
the Indemnitee, unless with respect to requests for indemnification under
Section 3 or 4 the Corporation determines within such 30-day period that the
Indemnitee did not meet the applicable standard of conduct set forth in Section
3 or 4, as the case may be. Such determination, and any determination that
advanced Expenses must be repaid to the Corporation, shall be made in each
instance (i) by a majority vote of the directors of the Corporation consisting
of persons who are not at that time parties to the Proceeding ("disinterested
directors"), whether or not a quorum, (ii) by a majority vote of a committee of
disinterested directors designated by a majority vote of disinterested
directors, whether or not a quorum, (iii) if there are no disinterested
directors, or if the disinterested directors so direct, by independent legal
counsel (who may, to the extent permitted by applicable law, be regular legal
counsel to the Corporation) in a written opinion or (iv) by the stockholders of
the Corporation; provided, however, that following any Change in Control (as
defined below) the Indemnitee shall have the right, by notice to the
Corporation, to require that any such determination, and any determination that
advanced Expenses must be repaid to the Corporation, shall be made only by
independent legal counsel selected by the Indemnitee and approved by the
Corporation (which approval shall not be unreasonably withheld). Such counsel
shall render its written opinion to the Corporation and the Indemnitee as to
whether and to what extent the Indemnitee is permitted to be indemnified or have
expenses advanced hereunder and/or under applicable law and the Corporation
agrees to abide by such opinion. The Corporation agrees to pay the reasonable
fees of the independent legal counsel and to indemnify such counsel against any
and all expenses (including reasonable attorneys fees), claims, liabilities and
damages arising out of or relating to its engagement pursuant hereto.
For purposes of this Agreement, a "Change in Control" shall mean:
(w) the acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person"), of beneficial ownership of any
capital stock of the Corporation if, after such acquisition, such Person
beneficially owns (within
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the meaning of Rule 13d-3 promulgated under the Exchange Act) 50% or more of
either (i) the then-outstanding shares of common stock of the Corporation (the
"Common Stock") or (ii) the combined voting power of the then-outstanding
securities of the Corporation entitled to vote generally in the election of
directors (the "Voting Securities"); provided, however, that the following
acquisitions shall not constitute a Change in Control: (i) any acquisition of
Common Stock or Voting Securities directly from the Corporation (excluding an
acquisition pursuant to the exercise, conversion or exchange of any security
exercisable for, convertible into or exchangeable for common stock or voting
securities of the Corporation, unless the Person exercising, converting or
exchanging such security acquired such security directly from the Corporation or
an underwriter or agent of the Corporation), (ii) any acquisition by the
Corporation or any employee benefit plan (or related trust) sponsored or
maintained by the Corporation or any corporation controlled by the Corporation
or (iii) any acquisition by any corporation pursuant to a Merger Combination (as
defined below) that meets the Ownership Requirement (as defined below); or
(x) individuals who, as of the date hereof, constitute the
members of the Corporation's Board of Directors (the "Incumbent Directors")
cease for any reason to constitute at least a majority of the Corporation's
Board of Directors (or, if applicable, the Board of Directors of a successor
corporation to the Corporation); provided, however, that any individual becoming
a director of the Corporation subsequent to the date hereof who was nominated or
elected by at least a majority of the Incumbent Directors at the time of such
nomination or election or whose election to the Corporation's Board of Directors
was recommended or endorsed by at least a majority of the directors who were the
Incumbent Directors at the time of such nomination or election shall be deemed
to be the Incumbent Directors (except that this proviso shall not apply to any
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 Corporation's Board of Directors); or
(y) the consummation of a merger, consolidation,
reorganization, recapitalization or share exchange involving the Corporation or
a sale or other disposition of all or substantially all of the assets of the
Corporation (a "Merger Combination"), unless immediately following such Merger
Combination, all or substantially all of the individuals and entities who were
the beneficial owners of Common Stock and Voting Securities immediately prior to
such Merger Combination beneficially own, directly or indirectly, more than 50%
of the shares of common stock and the combined voting power of the securities
entitled to vote generally in the election of directors, respectively, of the
resulting or acquiring corporation in such Merger Combination (which shall
include, without limitation, a corporation which as a result of such transaction
owns the Corporation or substantially all of the Corporation's assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Merger Combination
(the "Ownership Requirement"); or
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(z) approval by the stockholders of the Corporation of a
complete liquidation or dissolution of the Corporation.
(c) Any such advancement of Expenses shall be made promptly, and in
any event within 30 days after receipt by the Corporation of the written request
of the Indemnitee, unless within such 30-day period (i) the Corporation
determines that the Indemnitee did not meet the applicable standard of conduct
set forth in Section 3 or 4, as the case may be, or (ii) independent legal
counsel (who may, to the extent permitted by applicable law, be regular legal
counsel to the Corporation) determines that the advancement of Expenses would
violate applicable law.
10. Remedies. The right to indemnification or advancement of Expenses as
provided by this Agreement shall be enforceable by the Indemnitee in any court
of competent jurisdiction. Unless otherwise required by law, the burden of
proving that indemnification or advancement of Expenses is not appropriate shall
be on the Corporation. Neither the failure of the Corporation to have made a
determination prior to the commencement of such action that indemnification is
proper in the circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination pursuant to Section 9 that the
Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that the Indemnitee has not met the
applicable standard of conduct. The Indemnitee's expenses (of the type described
in the definition of "Expenses" in Section 2(c)) reasonably incurred in
connection with successfully establishing the Indemnitee's right to
indemnification, in whole or in part, in any such Proceeding shall also be
indemnified by the Corporation.
11. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines, penalties or amounts paid in
settlement actually and reasonably incurred by or on behalf of the Indemnitee in
connection with any Proceeding but not, however, for the total amount thereof,
the Corporation shall nevertheless indemnify the Indemnitee for the portion of
such Expenses, judgments, fines, penalties or amounts paid in settlement to
which the Indemnitee is entitled.
12. Subrogation. 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, who shall execute all papers required and
take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Corporation to bring suit to enforce
such rights.
13. Term of Agreement. This Agreement shall continue in effect
indefinitely regardless of when or if the Indemnitee shall cease to serve as a
director or officer of the Corporation or, at the request of a Corporation, as a
director, officer, partner, employee, agent or trustee of, or in a similar
capacity with, another corporation, partnership, joint venture, trust, limited
liability company or other enterprise.
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14. Indemnification Hereunder Not Exclusive. The indemnification and
advancement of Expenses provided by this Agreement shall not be deemed exclusive
of any other rights to which the Indemnitee may be entitled under the
Certificate of Incorporation or By-Laws of any Corporation, any other agreement,
any vote of stockholders or disinterested directors, the General Corporation Law
of Delaware, any other law (common or statutory), or otherwise, both as to
action in the Indemnitee's official capacity and as to action in another
capacity while holding office for a Corporation. Nothing contained in this
Agreement shall be deemed to prohibit a Corporation from purchasing and
maintaining insurance, at its expense, to protect itself or the Indemnitee
against any expense, liability or loss incurred by it or the Indemnitee in any
such capacity, or arising out of the Indemnitee's status as such, whether or not
the Indemnitee would be indemnified against such expense, liability or loss
under this Agreement; provided that no Corporation shall be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that the Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.
15. No Special Rights. Nothing herein shall confer upon the Indemnitee any
right to continue to serve as an officer or director of a Corporation for any
period of time or at any particular rate of compensation.
16. Savings Clause. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify the Indemnitee as to Expenses,
judgments, fines, penalties and amounts paid in settlement with respect to any
Proceeding to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated and to the fullest extent
permitted by applicable law.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
18. Successors and Assigns, This Agreement shall be binding upon each
Corporation and its successors and assigns and shall inure to the benefit of the
estate, heirs, executors, administrators and personal representatives of the
Indemnitee.
19. Headings. The headings of the paragraphs or sections of this Agreement
are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction thereof.
20. Modification and Waiver. This Agreement may be amended from time to
time to reflect changes in Delaware law or for other reasons. No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by each of the parties hereto. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall any such waiver constitute a continuing waiver.
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21. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given (i) when
delivered by hand or (ii) if mailed by certified or registered mail with postage
prepaid, on the third day after the date on which it is so mailed:
(a) if to the Indemnitee, to:
_________________________
_________________________
_________________________
(b) if to any Corporation, to:
Safety Components International, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
or to such other address as may have been furnished to the Indemnitee by the
Corporation or to the Corporation by the Indemnitee, as the case may be.
22. Applicable Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware. The Indemnitee
may elect to have the right to indemnification or reimbursement or advancement
of Expenses interpreted on the basis of the applicable law in effect at the time
of the occurrence of the event or events giving rise to the applicable
Proceeding, to the extent permitted by law, or on the basis of the applicable
law in effect at the time such indemnification or reimbursement or advancement
of Expenses is sought. Such election shall be made, by a notice in writing to
the Corporation, at the time indemnification or reimbursement or advancement of
Expenses is sought; provided, however, that if no such notice is given, and if
the General Corporation Law of Delaware is amended, or other Delaware law is
enacted, to permit further indemnification of the directors and officers, then
the Indemnitee shall be indemnified to the fullest extent permitted under the
General Corporation Law of Delaware, as so amended, or by such other Delaware
law, as so enacted.
23. Enforcement. Each Corporation expressly confirms and agrees that it
has entered into this Agreement in order to induce the Indemnitee to continue to
serve as an officer or director of the Corporation, acknowledges that the
Indemnitee is relying upon this Agreement in continuing in such capacity and
that its obligations hereunder are joint and several.
24. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supercedes all prior agreements, whether oral or written, by any officer,
employee or representative of any party hereto in respect of the subject matter
contained herein; and any prior agreement of the parties hereto in respect of
the subject matter contained herein is hereby terminated
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and cancelled. For avoidance of doubt, the parties confirm that the foregoing
does not apply to or limit the Indemnitee's rights under Delaware law or the
Certificate of Incorporation or By-Laws of any Corporation.
25. Consent to Suit. In the case of any dispute under or in connection
with this Agreement, the Indemnitee may only bring suit against a Corporation in
the Court of Chancery of the State of Delaware. The Indemnitee hereby consents
to the exclusive jurisdiction and venue of the courts of the State of Delaware,
and the Indemnitee hereby waives any claim the Indemnitee may have at any time
as to forum non conveniens with respect to such venue. A Corporation shall have
the right to institute any legal action arising out of or relating to this
Agreement in any court of competent jurisdiction. Any judgment entered against
either of the parties in any proceeding hereunder may be entered and enforced by
any court of competent jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SAFETY COMPONENTS INTERNATIONAL, INC.
By:__________________________________
Title: ______________________________
AUTOMOTIVE SAFETY COMPONENTS
INTERNATIONAL, INC.
By:__________________________________
Title: ______________________________
SAFETY COMPONENTS FABRIC
TECHNOLOGIES, INC.
By:__________________________________
Title: ______________________________
INDEMNITEE:
_____________________________________
____________________
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