Exhibit 10.2
DIRECTORS’ INDEMNIFICATION
AGREEMENT
AGREEMENT, effective as of
November 1, 2006, between Owens Corning, a Delaware
corporation (the “Company”), and
(the “Indemnitee”).
WHEREAS, it is essential to the
Company to retain and attract as directors the most capable persons
available;
WHEREAS, Indemnitee is a director of
the Company;
WHEREAS, both the Company and
Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors of public companies in
today’s environment;
WHEREAS, the By-Laws of the Company
require the Company to indemnify and advance expenses to its
directors to the full extent permitted by law and the Indemnitee
has agreed to serve as a director of the Company in part in
reliance on such By-Laws;
WHEREAS, in recognition of
Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service
to the Company in an effective manner and Indemnitee’s
reliance on the aforesaid By-Laws, and in part to provide
Indemnitee with specific contractual assurance that the protection
promised by such By-Laws will be available to Indemnitee
(regardless of, among other things, any amendment to or revocation
of such By-Laws or any change in the composition of the
Company’s Board of Directors or acquisition transaction
relating to the Company), the Company wishes to provide in this
Agreement for the indemnification of and the advancing of expenses
to Indemnitee to the full extent (whether partial or complete)
permitted by law and as set forth in this Agreement, and, to the
extent insurance is maintained, for the continued coverage of
Indemnitee under the Company’s directors’ and
officers’ liability insurance policies;
NOW, THEREFORE, in consideration of
the premises and of Indemnitee continuing to serve the Company
directly or, at its request, with another enterprise, and intending
to be legally bound hereby, the parties hereto agree as
follows:
1. Certain Definitions
:
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(a)
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Change in Control
: shall be deemed to have occurred
if (i) any “person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than a trustee or other fiduciary holding
securities under an employee
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benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of
stock of the Company, is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 20% or more
of the total voting power represented by the Company’s then
outstanding Voting Securities, or (ii) during any period of
two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for
election by the Company’s stockholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or
whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof, or
(iii) the stockholders of the Company approve a merger or
consolidation of the company with any other corporation, other than
a merger or consolidation which would result in the Voting
Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into Voting Securities of the surviving entity) at
least 80% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders
of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company
(in one transaction or a series of transactions) of all or
substantially all of the Company’s assets.
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(b)
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Claim : any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation, whether
conducted by the Company or any other party, that Indemnitee in
good faith believes might lead to the institution of any such
action, suit or proceeding, whether civil, criminal,
administrative, investigative or other.
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(c)
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Expenses : include attorneys’ fees and all other
costs, expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or
participate in any Claim relating to any Indemnifiable
Event.
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(d)
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Indemnifiable Event
: any event or occurrence related to
the fact that Indemnitee is or was a director, officer, employee,
agent or fiduciary of the Company, or is or was serving at the
request of
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the Company as a director,
officer, employee, trustee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan,
trust or other enterprise, or by reason of anything done or not
done by Indemnitee in any such capacity.
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(e)
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Potential
Change in Control : shall
be deemed to have occurred if (i) the Company enters into an
agreement or arrangement, the consummation of which would result in
the occurrence of a Change in Control; (ii) any person
(including the Company) publicly announces an intention to take or
to consider taking actions which if consummated would constitute a
Change in Control; (iii) any person, other than a trustee or
other fiduciary holding securities under an employee benefit plan
of the Company acting in such capacity or a corporation owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of
the Company, who is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 10% or more
of the combined voting power of the Company’s then
outstanding Voting Securities, increases his beneficial ownership
of such securities by 5% or more over the percentage so owned by
such person on the date hereof or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
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(f)
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Reviewing
Party : any appropriate
person or body consisting of a member or members of the
Company’s Board of Directors or any other person or body
appointed by the Board (including the special, independent counsel
referred to in Section 3) who is not a party to the particular
claim for which Indemnitee is seeking indemnification.
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(g)
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Voting
Securities : any
securities of the Company which vote generally in the election of
directors.
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2. Basic Indemnification
Arrangement .
(a) In the event Indemnitee was, is
or becomes a party to or witness or other participant in, or is
threatened to be made a party to or witness or other participant in
a Claim by reason of (or arising in part out of) an Indemnifiable
Event, the Company shall indemnify Indemnitee to the fullest extent
authorized by the By-Laws of the Company as in effect on the date
hereof notwithstanding that such By-Laws may subsequently be
amended, repealed or otherwise changed in any respect, as soon as
practicable but in any event no later than thirty days after
written demand is presented to the Company, against any and all
Expenses, judgments, fines, penalties and amounts paid in
settlement (including
3
all interest, assessments and other charges paid
or payable in connection with or in respect of such Expenses,
judgments, fines, penalties or amounts paid in settlement) of such
Claim. Notwithstanding anything in this Agreement to the contrary,
prior to a Change in Control Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any
Claim initiated by Indemnitee against the Company or any director
or officer of the Company unless the Company has joined in or
consented to the initiation of such Claim. If so requested by
Indemnitee, the Company shall advance (within two business days of
such request) any and all Expenses to Indemnitee (an “Expense
Advance”).
(b) Notwithstanding the foregoing,
(i) the obligations of the Company under Section 2(a)
shall be subjec
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