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Exhibit 10.30.0
INDEMNIFICATION
AGREEMENT
AGREEMENT , dated as
of February , 2008 (this “
Agreement ”), by and between GrafTech International
Ltd., a Delaware corporation (the “ Company ”),
and
(“ Indemnitee ”).
WHEREAS , it is
essential to the Company to retain and attract as directors and
officers the most capable persons available;
WHEREAS , Indemnitee
is a director and/or officer of the Company;
WHEREAS , both the
Company and Indemnitee recognize the increased risk of litigation
and other claims being asserted against directors and officers of
public companies in today’s environment;
WHEREAS , basic
protection against undue risk of personal liability of directors
and officers heretofore has been provided through insurance
coverage providing reasonable protection at reasonable cost, and
Indemnitee has relied on the availability of such coverage; but as
a result of substantial changes in the marketplace for such
insurance it has become increasingly more difficult to obtain such
insurance on terms providing reasonable protection at reasonable
cost;
WHEREAS , the Amended
and Restated By-laws of the Company require the Company to
indemnify and advance expenses to its directors and officers to the
full extent permitted by the Delaware General Company Law, as
amended (the “DGCL”) in certain circumstances and the
Indemnitee has been serving and continues to serve as a director
and/or officer of the Company in part in reliance on such Amended
and Restated By-laws and the DGCL;
WHEREAS , the current
difficulty in obtaining adequate director and officer liability
insurance coverage at a reasonable cost and uncertainties as to the
availability of indemnification created by recent court decisions
have increased the risk that the Company will be unable to retain
and attract as directors and officers the most capable persons
available;
WHEREAS , the Board of
Directors of the Company has determined that the inability of the
Company to retain and attract as directors and officers the most
capable persons would be detrimental to the interests of the
Company and that the Company therefore should seek to assure such
persons that indemnification and insurance coverage will be
available in the future; and
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, the
increasing difficulty in obtaining satisfactory director and
officer liability insurance coverage, and Indemnitee’s
reliance on the Company’s Amended and Restated By-laws, and
in part to provide Indemnitee with specific contractual assurance
that the protection promised by such Amended and Restated By-laws
will be available to Indemnitee (regardless of, among other things,
any amendment to or revocation of such Amended and Restated 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 fullest
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, another enterprise, and
intending to be legally bound hereby, the parties hereto agree as
follows:
1. Certain Definitions
. In addition to terms defined elsewhere herein, the following
terms have the following meanings when used in this
Agreement:
“ 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 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 15% 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 85% 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
of (in one transaction or a series of transactions) all or
substantially all the Company’s assets.
“ Claim
” means any threatened, asserted, pending or completed
action, suit or proceeding, or appeal thereof, or any inquiry or
investigation, whether instituted by the Company or any
governmental agency 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, including any arbitration or other
alternative dispute resolution mechanism.
“ Expenses
” include attorneys’ fees and all other costs, expenses
and obligations (including, without limitation, experts’
fees, court costs, retainers, transcript fees, duplicating,
printing and binding costs, as well as telecommunications, postage
and courier charges) paid or incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal), or preparing to investigate, defend, be a
witness in or participate in, any Claim relating to any
Indemnifiable Event.
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“
Indemnifiable Amounts ” means any and all Expenses,
damages, judgments, fines, penalties, ERISA excise taxes and
amounts paid in settlement (including all interest, assessments and
other charges paid or payable in connection with or in respect of
such Expenses, judgments, fines, penalties, excise taxes or amounts
paid in settlement) arising out of or resulting from any Claim
relating to an Indemnifiable Event.
“
Indemnifiable Event ” means any event or occurrence,
whether occurring before, on or after the date of this Agreement,
related to the fact that Indemnitee is or was a director and/or
officer, employee, agent or fiduciary of the Company, or is or was
serving at the request of the Company as a director, officer,
employee, trustee, agent or fiduciary of another corporation,
limited liability company, partnership, joint venture, employee
benefit plan, trust or other entity or enterprise, or by reason of
anything done or not done by Indemnitee in any such
capacity.
“ Independent
Legal Counsel ” means an attorney or firm of attorneys,
selected in accordance with the provisions of Section 3
hereof, who is experienced in matters of corporate law and who
shall not have otherwise performed services for the Company or
Indemnitee within the last five years (other than with respect to
matters concerning the rights of Indemnitee under this Agreement,
or of other indemnitees under similar indemnity
agreements).
“ Reviewing
Party ” means 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 who is not a party
to the particular Claim for which Indemnitee is seeking
indemnification, or Independent Legal Counsel.
“ Voting
Securities ” means any securities of the Company which
vote generally in the election of directors.
2. Basic Indemnification
Arrangement; Advancement of Expenses .
(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 permitted by law 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 Indemnifiable
Amounts.
(b) If so requested by
Indemnitee, the Company shall advance (within five business days of
such request) any and all Expenses incurred by Indemnitee (an
“ Expense Advance ”). The Company shall, in
accordance with such request (but without duplication), either
(i) pay such Expenses on behalf of Indemnitee, or
(ii) reimburse Indemnitee for such Expenses.
Indemnitee’s right to an Expense Advance is absolute and
shall not be subject to any prior determination by the Reviewing
Party that the Indemnitee has satisfied any applicable standard of
conduct for indemnification.
(c) Notwithstanding anything
in this Agreement to the contrary, Indemnitee shall not be entitled
to indemnification or advancement of Expenses pursuant to this
Agreement in connection with any Claim initiated by Indemnitee
unless (i) the Company has joined in or
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Company’s Board of Directors has
authorized or consented to the initiation of such Claim or
(ii) the Claim is one to enforce Indemnitee’s rights
under this Agreement.
(d) Notwithstanding the
foregoing, (i) the indemnification obligations of the Company
under Section 2(a) shall be subject to the condition that the
Reviewing Party shall not have determined (in a written opinion, in
any case in which the Independent Legal Counsel referred to in
Section 3 hereof is involved) that Indemnitee would not be
permitted to be indemnified under applicable law, and (ii) the
obligation of the Company to make an Expense Advance pursuant to
Section 2(b) shall be subject to the condition that, if, when
and to the extent that the Reviewing Party determines that
In
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