FORM OF INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (this “Agreement”) is made
and entered into effective as of the ___ day of ___, 20___ by and
between CHART INDUSTRIES, INC., a Delaware corporation (the
“Corporation”), and
(“Indemnitee”),
of the Corporation.
WHEREAS,
it is essential to the Corporation to retain and attract as
Directors and/or Officers the most capable persons available such
as Indemnitee; and
WHEREAS,
the prevalence of corporate litigation subjects directors and
officers to expensive litigation risks and it is the policy of the
Corporation to indemnify its Directors and/or Officers so as to
provide them with the maximum possible protection permitted by law;
and
WHEREAS,
in addition, because the statutory indemnification provisions of
the Delaware General Corporation Law (the “DGCL”)
expressly provide that such statutory indemnification provisions
are non-exclusive, it is the policy of the Corporation to indemnify
its Directors and Officers who, on behalf of the Corporation, have
entered into settlements of derivative suits provided they have not
breached the applicable statutory standard of conduct;
and
WHEREAS,
Indemnitee does not regard the protection available under the
Corporation’s Certificate of Incorporation (the
“Certificate”), By-laws (the “By-laws”),
and insurance, if any, as adequate in the present circumstances,
and considers it necessary and desirable to his or her service as a
Director and/or Officer to have adequate protection, and the
Corporation desires to provide such protection to induce Indemnitee
to serve in such capacity; and
WHEREAS,
the DGCL provides that indemnification of directors and officers of
a corporation may be authorized by agreement, and thereby
contemplates that contracts of this nature may be entered into
between the Corporation and Indemnitee.
NOW,
THEREFORE, for good and valuable consideration, the adequacy of
which is hereby acknowledged, the Corporation and Indemnitee do
hereby agree as follows:
1.
Agreement to Serve. Indemnitee agrees to serve or continue
to serve as a Director and/or Officer of the Corporation for so
long as he or she is duly elected or appointed or until such time
as he or she tenders his or her resignation in writing or is
otherwise terminated or properly removed from office.
The
Corporation expressly confirms and agrees that (i) it has
entered into this agreement and assumed the obligations imposed on
the Corporation hereby in order to induce Indemnitee to continue to
serve as a Director and/or Officer of the Corporation and
(ii) the obligations imposed on the Corporation hereby cover
service by Indemnitee during and after the period with respect to
Indemnitee’s service on the Board of Directors, or as an
Officer, of the
Corporation,
including, specifically, the period prior to the date of this
Agreement. The Corporation acknowledges that Indemnitee is relying
upon this Agreement in continuing in his or her capacity as a
Director and/or Officer of the Corporation.
2.
Definitions. As used in this Agreement:
(a) The term
“Proceeding” shall include any threatened, pending, or
completed action, suit, arbitration or proceeding, whether brought
by or in the right of the Corporation or otherwise and whether of a
civil, criminal, administrative or investigative nature, in which
Indemnitee may be or may have been involved as a party or
otherwise, by reason of the fact that Indemnitee is or was a
Director and/or Officer of the Corporation or any subsidiary of the
Corporation, by reason of any action taken by Indemnitee or of any
inaction on his or her part while acting as such a Director and/or
Officer, or by reason of the fact that he or she is or was serving
at the request of the Corporation as a director, officer, member or
manager, partner, trustee, employee, agent, or fiduciary of another
corporation (domestic or foreign, nonprofit or for profit), limited
liability company, partnership, joint venture, trust or other
enterprise; in each case whether before or after the date of this
Agreement and whether or not he or she is acting or serving in any
such capacity at the time any liability or expense is incurred for
which indemnification or reimbursement can be provided under this
Agreement.
(b) The term
“Expenses” shall include, without limitation, expenses
of investigations, settlements, judicial or administrative
proceedings or appeals, attorneys’ fees and disbursements and
any expenses of establishing a right to indemnification under
Paragraph 8 of this Agreement, but shall not include the
amount of judgments, fines or penalties against or settlements paid
by Indemnitee.
(c) References to
“other enterprise” shall include, without limitation,
employee benefit plans; references to “fines” shall
include, without limitation, any excise tax assessed with respect
to any employee benefit plan; references to “serving at the
request of the Corporation” shall include, without
limitation, any service as a Director and/or Officer of the
Corporation which imposes duties on, or involves services by, such
Director and/or Officer with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good
faith and in a manner he or she reasonably believed to be in the
best 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.
Indemnity in Third-Party Proceedings. The Corporation shall
indemnify Indemnitee in accordance with the provisions of this
Paragraph 3 if Indemnitee is a party to or 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 fact that Indemnitee is or
was a Director and/or Officer of the Corporation or a subsidiary of
the Corporation, or is or was serving at the request of the
Corporation as a director, officer, member or manager, partner,
trustee, employee, agent, or fiduciary of another corporation
(domestic or foreign, nonprofit or for profit), limited liability
company, partnership, joint venture, trust or other enterprise, in
each case whether before or after the date of this
Agreement,
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against all
Expenses, judgments (including for punitive damages), settlements,
fines and penalties, actually and reasonably incurred by Indemnitee
in connection with the defense or settlement of such Proceeding,
but only if Indemnitee acted in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best
interests of the Corporation and, in the case of a criminal
proceeding, had no reasonable cause to believe that his or her
conduct was unlawful. The termination of any such Proceeding by
judgment, order of court, settlement, conviction or upon a plea of
nolo contendere, or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith and in a
manner which he or she reasonably believed to be in or not opposed
to the best interests of the Corporation, and with respect to any
criminal proceeding, that such person had reasonable cause to
believe that his or her conduct was unlawful.
4.
Indemnity for Expenses in Proceedings by or in the Right of the
Corporation. The Corporation shall indemnify Indemnitee in
accordance with the provisions of this Paragraph 4 if
Indemnitee is a party to or threatened to be made a party to any
Proceeding by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that Indemnitee is or
was a Director and/or Officer of the Corporation or a subsidiary of
the Corporation, or is or was serving at the request of the
Corporation as a director, officer, member or manager, partner,
trustee, employee, agent, or fiduciary of another corporation
(domestic or foreign, nonprofit or for profit), limited liability
company, partnership, joint venture, trust or other enterprise, in
each case whether before or after the date of this Agreement,
against all Expenses actually and reasonably incurred by Indemnitee
in connection with the defense or settlement of such Proceeding,
but only if he or she acted in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification for
Expenses shall be made under this Paragraph 4 in respect of
any claim, issue or matter as to which Indemnitee shall have been
adjudged by court order or judgment to be liable to the
Corporation, unless and only to the extent that any court in which
such Proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such Expenses as such court shall deem
proper.
5.
Indemnity for Amounts Paid in Settlement in Proceedings by or in
the Right of the Corporation. The Corporation shall indemnify
Indemnitee in accordance with the provisions of this
Paragraph 5 if Indemnitee is a party to or threatened to be
made a party to any Proceeding by or in the right of the
Corporation to procure a judgment in its favor by reason of the
fact that Indemnitee is or was a Director and/or Officer of the
Corporation or a subsidiary of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
member or manager, partner, trustee, employee, agent, or fiduciary
of another corporation (domestic or foreign, nonprofit or for
profit), limited liability company, partnership, joint venture,
trust or other enterprise, in each case whether before or after the
date of this Agreement, against all amounts actually and reasonably
paid in settlement by Indemnitee in connection with any such
Proceeding, but only if he or she acted in good faith and in a
manner which he or she reasonably believed to be in or not opposed
to the best interests of the Corporation.
6.
Indemnification of Expenses of Successful Party.
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been successful on the merits or
otherwise in defense of any Proceeding or in defense of any claim,
issue or matter
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therein,
including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection
therewith.
7.
Advances of Expenses. Any Expenses incurred by or on behalf
of Indemnitee pursuant to Paragraphs 3 or 4 in any Proceeding shall
be paid by the Corporation in advance upon the written request of
Indemnitee if Indemnitee shall undertake to (a) repay such
amount to the extent that it is ultimately determined that
Indemnitee is not entitled to indemnification hereunder, and (b)
reasonably cooperate with the Corporation concerning the action,
suit or proceeding giving rise to the Expenses. Any advances to be
made under this Paragraph 7 shall be paid by the Corporation
to Indemnitee within 30 days following delivery of a written
request therefor by Indemnitee to the Corporation.
8.
Procedure . Any indemnification and advances provided for in
Paragraph 3, 4, 5, 6 and 7 shall be made no later than
30 days after receipt of the written request of Indemnitee. If
a claim under this Agreement, under any statute, or under any
provision of th
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