Exhibit 10.3
POLYMER GROUP, INC.
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of this 11th day of May, 2002, by
and between Polymer Group, Inc., a Delaware corporation (the "Corporation"), and
_________________ (the "Indemnitee").
WHEREAS, Indemnitee currently serves as a director or an
officer of the Corporation, or both, or as a director of another enterprise at
the request of the Corporation, and, as such, may be subjected to claims, suits
or proceedings arising as a result of such service;
WHEREAS, as an inducement to Indemnitee to continue to serve
as such director or officer, the Corporation has agreed to indemnify Indemnitee
against expenses and costs incurred by Indemnitee in connection with any such
claims, suits or proceedings, in accordance with, and to the fullest extent
authorized by, the General Corporation Law of the State of Delaware as it may be
in effect from time to time (the "Delaware Law");
WHEREAS, the parties desire to set forth the terms and
conditions of such indemnification.
NOW, THEREFORE, in consideration of the promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Section 1. AGREEMENT TO INDEMNITY. The Corporation hereby
agrees to indemnify, keep indemnified and hold harmless, Indemnitee (which shall
include any legal representatives of such person) to the fullest extent
authorized by the Delaware Law, including, without limitation, Section 145(f)
thereof, and other applicable law as in effect from time to time, from and
against any expenses (including expenses of investigation and preparation and
reasonable fees and disbursements of counsel, accountants and other experts),
judgments, fines, liability, losses and amounts paid in settlement, actually and
reasonably incurred by Indemnitee in connection with any threatened, pending or
completed action, suit, claim or proceeding (hereinafter, a "proceeding"),
whether civil, criminal, administrative or investigative, by reason of the fact
that Indemnitee is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee,
fiduciary or agent of another corporation, partnership, joint venture, trust or
other enterprise, and whether or not the cause of such proceeding occurred
before or after the date of this Agreement. Notwithstanding the foregoing, but
except as provided in Section 8 hereof, the Corporation shall indemnify the
Indemnitee in connection with a proceeding (or part thereof) initiated by the
Indemnitee only if such proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation. For purposes of this Agreement, the terms
"corporation," "other enterprise," "fines" and "serving at the request of the
Corporation" shall have the meanings provided in Section 145 of the Delaware
Law.
Section 2. PROCEDURE FOR INDEMNIFICATION. Any indemnification
under Section 1 of this Agreement or advance of expenses under Section 5 of this
Agreement shall be made
promptly, and in any event within 15 days, upon the written request of the
Indemnitee. If a determination by the Corporation that the Indemnitee is
entitled to indemnification pursuant to this Agreement is required, and the
Corporation fails to respond within 30 days to a written request for indemnity,
the Corporation shall be deemed to have approved the request. If the Corporation
denies a written request for indemnification or advancement of expenses, in
whole or in part, or if payment in full pursuant to such request is not made
within 15 days after response (or deemed response) by the Corporation, the right
to indemnification or advances as granted by this Agreement shall be enforceable
by the Indemnitee in any court of competent jurisdiction. The Indemnitee's costs
and expenses incurred in connection with successfully establishing his or her
right to indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation, in accordance with Section 8 of this Agreement.
It shall be a defense by the Corporation to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any, has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under applicable law for the
Corporation to indemnify the Indemnitee for the amount claimed, but the burden
of proving such defense shall be on the Corporation and the Indemnitee shall be
presumed to have acted in accordance with such standard unless it shall be
determined that the Indemnitee has not met such standard. Neither the failure of
the Corporation to have made a determination prior to the commencement of any
such action that indemnification of the Indemnitee is proper because the
applicable standard of conduct has been met, nor an actual determination by the
Corporation, shall be a defense to such action or create a presumption that the
Indemnitee has not met the applicable standard of conduct. Determinations
required to be made pursuant to this Agreement shall be made by any of the
following, the final identification of which shall be at the sole discretion of
Indemnitee, to be made after request by the Corporation: (i) the Board of
Directors of the Corporation, by a majority vote of a quorum consisting of
directors who are not parties to the proceeding, (ii) independent legal counsel
in a written opinion, which counsel shall be acceptable to the Indemnitee and
such quorum of the Board of Directors, or (iii) a court of competent
jurisdiction.
Section 3. NOTICE TO CORPORATION. Indemnitee shall notify the
Corporation in writing of any matter with respect to which Indemnitee intends to
seek indemnification hereunder as soon as reasonably practicable following the
receipt by Indemnitee of written notice thereof, provided that delay in
notifying the Corporation shall not constitute a waiver by Indemnitee of his or
her rights hereunder.
Section 4. INDEMNITEE TO CONTROL DEFENSE. Indemnitee shall
control the defense (including the selection of qualified counsel) of any
proceeding against him or her which may give rise to a right of indemnification
hereunder, PROVIDED, however that (a) if the insurance carrier which shall have
supplied any D&O Coverage (as defined in Section 6 hereof) shall be willing to
conduct such defense without any reservation as to coverage, then unless on
written application by Indemnitee concurred in by the Board of Directors of the
Corporation, Indemnitee and the Board of Directors deem it undesirable, such
insurance carrier shall select counsel to conduct such defense; and (b) in any
case involving two or more defendants who are entitled to indemnification by the
Corporation, separate counsel may be used by Indemnitee only to the extent
necessary to avoid conflicts of interest.
Section 5. EXPENSES. In the event of any proceeding against
Indemnitee which may give rise to a right of indemnification pursuant to this
Agreement, following written request to the Corporation by Indemnitee, the
Corporation shall advance to Indemnitee amounts equal to
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reasonable expenses incurred by Indemnitee in defending such proceeding in
advance of the final disposition thereof upon receipt of (i) an undertaking by
or on behalf of Indemnitee to repay such amount if it shall ultimately be
determined by final judgment of a court of competent jurisdiction that he or she
is not entitled to be indemnified by the Corporation hereunder, in reasonably
customary form and (ii) satisfactory documentation as to the amount of such
expenses. Indemnitee's written certification together with a copy of the
statement paid or to be paid by Indemnitee shall constitute satisfactory
documentation for purposes of subparagraph (ii) hereof absent manifest error.
Section 6. INSURANCE. The Corporation shall use all reasonable
efforts to provide Indemnitee with Directors and Officers insurance coverage
("D&O Coverage") providing to Indemnitee coverage no less advantageous than that
currently in effect for directors and officers of the Corporation generally. In
the event such coverage is not available to the Corporation at reasonable cost,
the Corporation shall so notify the Board of Directors as promptly as reasonably
practicable and shall obtain the best coverage then available in the insurance
industry for such cost. The Indemnitee shall not settle any matter for which he
has sought or intends to seek indemnification hereunder without first attempting
to obtain any approval required with respect to such settlement by the insurance
carrier of any applicable D&O Coverage. If the Indemnitee seeks such approval
but such approval is not granted by such insurance carrier, the Indemnitee shall
be entitled to indemnification from the Corporation to the fullest extent
provided by such D&O Coverage or to the fullest extent otherwise provided by
this Agreement, whichever shall be greater. The provision of D&O Coverage by an
insurance carrier at the expense of the Corporation or the failure to so provide
D&O Coverage shall in no way limit or diminish the obligation of the Corporation
to indemnify Indemnitee as provided elsewhere in this Agreement, which
obligation shall be absolute, provided that any amounts actually recovered by
Indemnitee from the insurance carrier providing D&O Coverage shall be applied in
reduction of amounts otherwise owing by the Corporation by reason of its
indemnification under this Agreement.
Section 7. SETTLEMENT. Neither the Corporation nor Indemnitee
shall settle or compromise any proceeding covered by this Agreement without
first obtaining written consent to such settlement or compromise from the other,
which consent in no event shall be unreasonably withheld.
Section 8. COLLECTION COSTS. In the event Indemnitee is
required to bring any action to enforce rights or to collect amounts due under
this Agreement and is successful in such action, the Corporation shall reimburse
Indemnitee for all of Indemnitee's reasonable fees and expenses (including
reasonable fees and disbursements of counsel) in bringing and pursuing such
action.
Section 9. NATURE OF RIGHT. All agreements and obligations of
the Corporation contained herein shall continue during the period Indemnitee is
a director or officer of the Corporation or is or was serving at the request of
the Corporation as a director of another corporation, partnership, joint
venture, trust or other enterprise and shall continue thereafter so long as
Indemnitee shall be subject to any possible claim or threatened, pending or
completed proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that Indemnitee was a director or officer of the
Corporation or serving in any other capacity referred to herein. The
indemnification rights and the rights to payment of expenses granted to
Indemnitee under this Agreement shall not be deemed exclusive of, or in
limitation of, any rights to which Indemnitee may be or hereafter become
entitled under any statute or agreement, the Corporation's
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Certificate of Incorporation or By-laws, a vote of stockholders or disinterested
directors, or otherwise. The amounts to which Indemnitee is entitled under this
Agreement in connection with a proceeding shall be reduced by the amount of any
other indemnification or reimbursement of such liability and expense to such
person in connection with the same proceeding.
Section 10. SUCCESSORS AND ASSIGNS. The rights granted to
Indemnitee hereunder shall inure to the benefit of Indemnitee, his personal
representative, heirs, executors, administrators and beneficiaries, and this
Agreement shall be binding upon the Corporation, its successors and assigns.
Section 11. AMENDMENT AND WAIVER. The provisions of this
Agreement may be amended and waived only with the prior written consent of the
Corporation and the Indemnitee.
Section 12. MISCELLANEOUS. This Agreement and the rights and
obligations of the parties hereunder shall be governed by the internal laws, and
not the laws of conflict, of the State of Delaware. To the extent permitted by
applicable law, the parties hereby waive any provision of law which renders any
provision in this Agreement unenforceable in any respect. Whenever possible,
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision shall be held to
be prohibited by or invalid under applicable law, such provision shall be deemed
amended to accomplish the objectives of the provision as originally written to
the fullest extent permitted by law and all other provisions shall remain in
full force and effect. The captions used in this Agreement are for convenience
only, do not constitute a part of this Agreement and shall not be deemed to
limit, characterize or affect in any way any of the provisions of this
Agreement, and all of the provisions of this Agreement shall be enforced and
construed as if no captions had been used in this Agreement. This Agreement may
be executed in two or more counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
indemnification Agreement as of the date first above written.
POLYMER GROUP, INC.
By:
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Its:
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Indemnitee
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