Exhibit 10.10.1
AMENDED & RESTATED INDEMNIFICATION AGREEMENT
This Amended and Restated Indemnification Agreement is made to be
effective as of the 6th day of December, 2005, 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 Xxxx X. Xxxxx
(the "Indemnitee"), a director and/or officer of the Corporation and amends and
restates in its entirety, the Indemnification Agreement made as of the 25th day
of August 2003, by and between the Corporation and the Indemnitee.
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.
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Amended-Restated Indemnification Agmt Xxxx Xxxxx 12-05
(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 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,
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Amended-Restated Indemnification Agmt Xxxx Xxxxx 12-05
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 the State 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 (a) an adjudication that
the Indemnitee was liable to the Corporation, (b) a plea of guilty or nolo
contendere by the Indemnitee, (c) 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 (d) with respect to any
criminal proceeding, an adjudication that the Indemnitee had reasonable cause to
believe his or her conduct was unlawful, the 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 indemnification
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
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Amended-Restated Indemnification Agmt Xxxx Xxxxx 12-05
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 (a) the employment of counsel by the Indemnitee has
been authorized by the Corporation, (b) 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 (c) 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 (b) 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 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
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Amended-Restated Indemnification Agmt Xxxx Xxxxx 12-05
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 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
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Amended-Restated Indemnification Agmt Xxxx Xxxxx 12-05
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
(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. 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. Presumption of Entitlement. In making any standard of conduct
determination, the person or persons making such determination shall presume
that the Indemnitee has satisfied the applicable standard of conduct, and that
the Corporation may overcome such presumption only by its adducing clear and
convincing evidence to the contrary. Any standard of conduct determination that
is adverse to the Indemnitee may be challenged by the Indemnitee in the Court of
Chancery of the State of Delaware. No determination by the Corporation
(including by
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Amended-Restated Indeminification Agmt Xxxx Xxxxx 12-05
its directors or any independent counsel) that the Indemnitee has not satisfied
any applicable standard of conduct shall be a defense to any claim by the
Indemnitee for indemnification or reimbursement or advance payment of Expenses
by the Corporation hereunder or create a presumption that the Indemnitee has not
met any applicable standard of conduct.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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
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Amended-Restated Indemnification Agmt Xxxx Xxxxx 12-05
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.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of it shall
together constitute one and the same instrument.
19. 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.
20. 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.
21. 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.
22. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given (a) when
delivered by hand, (b) if mailed by certified or registered mail with postage
prepaid (return receipt requested), on the third day after the date on which it
is so mailed, (c) one business day after delivery to a nationally recognized
overnight courier service for next day delivery or (d) the date when sent by
facsimile (with confirmation of receipt):
(a) if to the Indemnitee, to:
Xxxx X. Xxxxx
000 Xxxxx Xxxxx Xxxx Xxx
Xxxxxxxxxx, XX 00000
(b) if to any Corporation, to:
Safety Components International, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000)000-0000
or to such other address or facsimile number as may have been furnished to the
Indemnitee by the Corporation or to the Corporation by the Indemnitee, as the
case may be.
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Amended-Restated Indemnification Agmt Xxxx Xxxxx 12-05
23. 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.
24. 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.
25. 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 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.
26. 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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Amended-Restated Indemnification Agmt Xxxx Xxxxx 12-05
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: /s/ Xxxxx Xxxxxxx
----------------------------
Name/Title: Xxxxx Xxxxxxx, CFO
AUTOMOTIVE SAFETY COMPONENTS
INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name/Title: Xxxxx Xxxxxxx, CFO
SAFETY COMPONENTS FABRIC
TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name/Title: Xxxxx Xxxxxxx, CFO
INDEMNITEE:
/s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
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Amended-Restated indemnification Agmt Xxxx Xxxxx 12-05
AMENDED & RESTATED INDEMNIFICATION AGREEMENT
This Amended and Restated Indemnification Agreement is made to be
effective as of the 6th day of December, 2005, 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 Xxxxx X. Xxxxxxx
(the "Indemnitee"), a director and/or officer of the Corporation and amends and
restates in its entirety, the Indemnification Agreement made as of the 25th day
of August 2003, by and between the Corporation and the Indemnitee.
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.
1
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
(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 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,
2
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
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 the State 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 (a) an adjudication that
the Indemnitee was liable to the Corporation, (b) a plea of guilty or nolo
contendere by the Indemnitee, (c) 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 (d) with respect to any
criminal proceeding, an adjudication that the Indemnitee had reasonable cause to
believe his or her conduct was unlawful, the 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 indemnification
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
3
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
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 (a) the employment of counsel by the Indemnitee has
been authorized by the Corporation, (b) 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 (c) 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 (b) 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 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
4
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
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 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
5
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
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
(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. 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. Presumption of Entitlement. In making any standard of conduct
determination, the person or persons making such determination shall presume
that the Indemnitee has satisfied the applicable standard of conduct, and that
the Corporation may overcome such presumption only by its adducing clear and
convincing evidence to the contrary. Any standard of conduct determination that
is adverse to the Indemnitee may be challenged by the Indemnitee in the Court of
Chancery of the State of Delaware. No determination by the Corporation
(including by
6
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
its directors or any independent counsel) that the Indemnitee has not satisfied
any applicable standard of conduct shall be a defense to any claim by the
Indemnitee for indemnification or reimbursement or advance payment of Expenses
by the Corporation hereunder or create a presumption that the Indemnitee has not
met any applicable standard of conduct.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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
7
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
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.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of it shall
together constitute one and the same instrument.
19. 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.
20. 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.
21. 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.
22. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given (a) when
delivered by hand, (b) if mailed by certified or registered mail with postage
prepaid (return receipt requested), on the third day after the date on which it
is so mailed, (c) one business day after delivery to a nationally recognized
overnight courier service for next day delivery or (d) the date when sent by
facsimile (with confirmation of receipt):
(a) if to the Indemnitee, to:
Xxxxx X. Xxxxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
(b) if to any Corporation, to:
Safety Components International, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000)000-0000
or to such other address or facsimile number as may have been furnished to the
Indemnitee by the Corporation or to the Corporation by the Indemnitee, as the
case may be.
8
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
23. 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.
24. 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.
25. 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 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.
26. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
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: /s/ Xxxx X. Xxxxx
----------------------------
Name/Title: Xxxx X. Xxxxx, President & CEO
AUTOMOTIVE SAFETY COMPONENTS
INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------
Name/Title: Xxxx X. Xxxxx, President & CEO
SAFETY COMPONENTS FABRIC
TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------
Name/Title: Xxxx X. Xxxxx, President & CEO
INDEMNITEE:
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
10
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
AMENDED & RESTATED INDEMNIFICATION AGREEMENT
This Amended and Restated Indemnification Agreement is made to be
effective as of the 6th day of December, 2005, 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 Xxxxxxx X. Xxxxx
(the "Indemnitee"), a director and/or officer of the Corporation and amends and
restates in its entirety, the Indemnification Agreement made as of the 25th day
of August 2003, by and between the Corporation and the Indemnitee.
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.
1
Amended-Restated Indemnification Agmt SBD 12-05
(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 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,
2
Amended-Restated Indemnification Agmt SBD 12-05
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 the State 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 (a) an adjudication that
the Indemnitee was liable to the Corporation, (b) a plea of guilty or nolo
contendere by the Indemnitee, (c) 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 (d) with respect to any
criminal proceeding, an adjudication that the Indemnitee had reasonable cause to
believe his or her conduct was unlawful, the 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 indemnification
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
3
Amended-Restated Indemnification Agmt SBD 12-05
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 (a) the employment of counsel by the Indemnitee has
been authorized by the Corporation, (b) 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 (c) 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 (b) 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 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
4
Amended-Restated Indemnification Agmt SBD 12-05
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 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
5
Amended-Restated Indemnification Agmt SBD 12-05
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
(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. 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. Presumption of Entitlement. In making any standard of conduct
determination, the person or persons making such determination shall presume
that the Indemnitee has satisfied the applicable standard of conduct, and that
the Corporation may overcome such presumption only by its adducing clear and
convincing evidence to the contrary. Any standard of conduct determination that
is adverse to the Indemnitee may be challenged by the Indemnitee in the Court of
Chancery of the State of Delaware. No determination by the Corporation
(including by
6
Amended-Restated Indemnification Agmt SBD 12-05
its directors or any independent counsel) that the Indemnitee has not satisfied
any applicable standard of conduct shall be a defense to any claim by the
Indemnitee for indemnification or reimbursement or advance payment of Expenses
by the Corporation hereunder or create a presumption that the Indemnitee has not
met any applicable standard of conduct.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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
7
Amended-Restated Indemnification Agmt SBD 12-05
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.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of it shall
together constitute one and the same instrument.
19. 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.
20. 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.
21. 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.
22. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given (a) when
delivered by hand, (b) if mailed by certified or registered mail with postage
prepaid (return receipt requested), on the third day after the date on which it
is so mailed, (c) one business day after delivery to a nationally recognized
overnight courier service for next day delivery or (d) the date when sent by
facsimile (with confirmation of receipt):
(a) if to the Indemnitee, to:
Xxxxxxx X. Xxxxx
000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
(b) if to any Corporation, to:
Safety Components International, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000)000-0000
or to such other address or facsimile number as may have been furnished to the
Indemnitee by the Corporation or to the Corporation by the Indemnitee, as the
case may be.
8
Amended-Restated Indemnification Agmt SBD 12-05
23. 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.
24. 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.
25. 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 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.
26. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
Amended-Restated Indemnification Agmt SBD 12-05
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: /s/ Xxxxx Xxxxxxx
----------------------------
Name/Title: Xxxxx Xxxxxxx, CFO
AUTOMOTIVE SAFETY COMPONENTS
INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name/Title: Xxxxx Xxxxxxx, CFO
SAFETY COMPONENTS FABRIC
TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name/Title: Xxxxx Xxxxxxx, CFO
INDEMNITEE:
/s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
10
Amended-Restated Indemnification Agmt SBD 12-05
AMENDED & RESTATED INDEMNIFICATION AGREEMENT
This Amended and Restated Indemnification Agreement is made to be
effective as of the 6th day of December, 2005, 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 R. Xxxx Xxxxxxx
(the "Indemnitee"), a director and/or officer of the Corporation and amends and
restates in its entirety, the Indemnification Agreement made as of the 25th day
of August 2003 by and between the Corporation and the Indemnitee.
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.
1
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
(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 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,
2
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
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 the State 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 (a) an adjudication that
the Indemnitee was liable to the Corporation, (b) a plea of guilty or nolo
contendere by the Indemnitee, (c) 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 (d) with respect to any
criminal proceeding, an adjudication that the Indemnitee had reasonable cause to
believe his or her conduct was unlawful, the 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 indemnification
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
3
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
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 (a) the employment of counsel by the Indemnitee has
been authorized by the Corporation, (b) 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 (c) 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 (b) 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 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
4
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
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 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
5
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
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
(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. 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. Presumption of Entitlement. In making any standard of conduct
determination, the person or persons making such determination shall presume
that the Indemnitee has satisfied the applicable standard of conduct, and that
the Corporation may overcome such presumption only by its adducing clear and
convincing evidence to the contrary. Any standard of conduct determination that
is adverse to the Indemnitee may be challenged by the Indemnitee in the Court of
Chancery of the State of Delaware. No determination by the Corporation
(including by
6
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
its directors or any independent counsel) that the Indemnitee has not satisfied
any applicable standard of conduct shall be a defense to any claim by the
Indemnitee for indemnification or reimbursement or advance payment of Expenses
by the Corporation hereunder or create a presumption that the Indemnitee has not
met any applicable standard of conduct.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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
7
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
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.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of it shall
together constitute one and the same instrument.
19. 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.
20. 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.
21. 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.
22. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given (a) when
delivered by hand, (b) if mailed by certified or registered mail with postage
prepaid (return receipt requested), on the third day after the date on which it
is so mailed, (c) one business day after delivery to a nationally recognized
overnight courier service for next day delivery or (d) the date when sent by
facsimile (with confirmation of receipt):
(a) if to the Indemnitee, to:
R. Xxxx Xxxxxxx
000 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000
(b) if to any Corporation, to:
Safety Components International, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000)000-0000
or to such other address or facsimile number as may have been furnished to the
Indemnitee by the Corporation or to the Corporation by the Indemnitee, as the
case may be.
23. 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
8
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
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.
24. 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.
25. 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 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.
26. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
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: /s/ Xxxxx Xxxxxxx
----------------------------
Name/Title: Xxxxx Xxxxxxx, CFO
AUTOMOTIVE SAFETY COMPONENTS
INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name/Title: Xxxxx Xxxxxxx, CFO
SAFETY COMPONENTS FABRIC
TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name/Title: Xxxxx Xxxxxxx, CFO
INDEMNITEE:
/s/ R. Xxxx Xxxxxxx
--------------------------------
R. Xxxx Xxxxxxx
10
Amended-Restated Indemnification Agmt X. Xxxxxxx 12-05
AMENDED & RESTATED INDEMNIFICATION AGREEMENT
This Amended and Restated Indemnification Agreement is made to be
effective as of the 6th day of December, 2005, 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 Xxxxxx X. Xxxxxxx
(the "Indemnitee"), a director and/or officer of the Corporation and amends and
restates in its entirety, the Indemnification Agreement made as of the 20th day
of May, 2005, by and between the Corporation and the Indemnitee.
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.
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Amended-Restated Indemnification Agmt Xxx Xxxxxxx 12-05
(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 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,
2
Amended-Restated Indemnification Agmt Xxx Xxxxxxx 12-05
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 the State 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 (a) an adjudication that
the Indemnitee was liable to the Corporation, (b) a plea of guilty or nolo
contendere by the Indemnitee, (c) 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 (d) with respect to any
criminal proceeding, an adjudication that the Indemnitee had reasonable cause to
believe his or her conduct was unlawful, the 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 indemnification
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
3
Amended-Restated Indemnification Agmt Xxx Xxxxxxx 12-05
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 (a) the employment of counsel by the Indemnitee has
been authorized by the Corporation, (b) 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 (c) 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 (b) 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 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
4
Amended-Restated Indemnification Agmt Xxx Xxxxxxx 12-05
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 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
5
Amended-Restated Indemnification Agmt Xxx Xxxxxxx 12-05
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
(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. 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. Presumption of Entitlement. In making any standard of conduct
determination, the person or persons making such determination shall presume
that the Indemnitee has satisfied the applicable standard of conduct, and that
the Corporation may overcome such presumption only by its adducing clear and
convincing evidence to the contrary. Any standard of conduct determination that
is adverse to the Indemnitee may be challenged by the Indemnitee in the Court of
Chancery of the State of Delaware. No determination by the Corporation
(including by
6
Amended-Restated Indemnification Agmt Xxx Xxxxxxx 12-05
its directors or any independent counsel) that the Indemnitee has not satisfied
any applicable standard of conduct shall be a defense to any claim by the
Indemnitee for indemnification or reimbursement or advance payment of Expenses
by the Corporation hereunder or create a presumption that the Indemnitee has not
met any applicable standard of conduct.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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
7
Amended-Restated Indemnification Agmt Xxx Xxxxxxx 12-05
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.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of it shall
together constitute one and the same instrument.
19. 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.
20. 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.
21. 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.
22. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given (a) when
delivered by hand, (b) if mailed by certified or registered mail with postage
prepaid (return receipt requested), on the third day after the date on which it
is so mailed, (c) one business day after delivery to a nationally recognized
overnight courier service for next day delivery or (d) the date when sent by
facsimile (with confirmation of receipt):
(a) if to the Indemnitee, to:
Xxxxxx X. Xxxxxxx and to Xxxxxx X. Xxxxxxx
000 Xxxx Xxxxx Xxxxx 0 Xxxxx Xxxx
Xxxx 0000 Xxxxxxxxx, XX 00000
Xxxxxx, Xxxxxxx 00000
(b) if to any Corporation, to:
Safety Components International, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000)000-0000
or to such other address or facsimile number as may have been furnished to the
Indemnitee by the Corporation or to the Corporation by the Indemnitee, as the
case may be.
8
Amended-Restated Indemnification Agmt Xxx Xxxxxxx 12-05
23. 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.
24. 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.
25. 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 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.
26. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
Amended-Restated Indemnification Agmt Xxx Xxxxxxx 12-05
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: /s/ Xxxxx Xxxxxxx
----------------------------
Name/Title: Xxxxx Xxxxxxx, CFO
AUTOMOTIVE SAFETY COMPONENTS
INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name/Title: Xxxxx Xxxxxxx, CFO
SAFETY COMPONENTS FABRIC
TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name/Title: Xxxxx Xxxxxxx, CFO
INDEMNITEE:
/s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
10
Amended-Restated Indemnification Agmt Xxx Xxxxxxx 12-05
