EXHIBIT 10.1
Execution Version
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the “
Agreement ”), dated January 5, 2009, is between
West Pharmaceutical Services, Inc., a Pennsylvania corporation,
(the “ Company ”) and Donald E. Morel,
Jr. (the “ Indemnitee ”).
Background
The Company and
the Indemnitee recognize the substantial increase in corporate
litigation, in general, subjecting officers and directors to
expensive litigation risks at the same time as liability insurance
has been severely limited. The Indemnitee does not
regard the current protection available as adequate given the
present circumstances, and the Indemnitee and other officers and
directors of the Company may not be willing to serve as officers
and directors without adequate protection.
The Company
desires to attract and retain the services of highly qualified
individuals, such as the Indemnitee, to serve as officers and
directors of the Company and to indemnify its officers and
directors so as to provide them with the maximum protection
permitted by law.
In order to
accomplish these goals, the Company considers it appropriate to
offer a contractual indemnification agreement on the terms set out
below.
Terms
In light of the
foregoing, the Company and the Indemnitee hereby agree as
follows:
Indemnification .
Third Party Proceedings . The Company shall indemnify the Indemnitee if
the Indemnitee is or was a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Company) by reason of the fact that the Indemnitee is or was a
director, officer, trustee, fiduciary, employee or agent of the
Company, or any affiliate of the Company, by reason of any action
or inaction on the part of the Indemnitee while an officer or
director, or by reason of the fact that the Indemnitee is or was
serving at the request of the Company as a director, officer,
trustee, fiduciary, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including an
employee benefit plan, against any liability, penalty, damages,
excise tax assessed with respect to an employee benefit plan,
costs, expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement (if such settlement is approved
pursuant to Section 2(g) ) (“ Expenses
”) actually and reasonably incurred by the Indemnitee or on
the Indemnitee’s behalf in connection with such action, suit
or proceeding if the Indemnitee acted in good faith and in a manner
the Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe the
Indemnitee’s conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, in and of itself, create a presumption that
(i) 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 Company, and, (ii) with respect to any
criminal action or proceeding, the Indemnitee did not have
reasonable cause to believe his conduct was lawful.
Proceedings By or in the Right of the
Company . The Company
shall indemnify the Indemnitee if the Indemnitee was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company or any
subsidiary of the Company to procure a judgment in its favor by
reason of the fact that the Indemnitee is or was a director,
officer, trustee, fiduciary, employee or agent of the Company, or
any affiliate of the Company, by reason of any action or inaction
on the part of the Indemnitee while an officer or director or by
reason of the fact that the Indemnitee is or was serving at the
request of the Company as a director, officer, trustee, fiduciary,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, including an employee benefit
plan, against Expenses actually and reasonably incurred by the
Indemnitee in connection with the defense or settlement of such
action or suit if the Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company, except that no
indemnification shall be made in respect of any claim, issue or
matter as to which the Indemnitee shall have been adjudged to be
liable to the Company unless and only to the extent that the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, the Indemnitee is fairly and
reasonably entitled to indemnity for such Expenses which the court
shall deem proper.
Mandatory Indemnification
. Notwithstanding any
other provisions of this Agreement, to the fullest extent permitted
by applicable law:
To the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Sections 1(a) and
1(b) or in defense of any claim, issue or matter therein,
the Indemnitee shall be indemnified against all Expenses actually
and reasonably incurred by the Indemnitee in connection
therewith.
If the Indemnitee is successful, on the merits
or otherwise, as to one or more but less than all claims, issues or
matters in such proceeding, the Company shall indemnify the
Indemnitee against all Expenses actually and reasonably incurred by
or on behalf of the Indemnitee in connection with (i) each
successfully resolved claim, issue or matter and (y) each claim,
issue, or matter related to any claim, issue or matter on which the
Indemnitee was successful.
For purposes of
this Section 1(c) , and without limitation, the termination
of any claim, issue or matter in such a proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.
Indemnification for Expenses of a
Witness . Notwithstanding any other provision
of this Agreement, to the extent that the Indemnitee is, by reason
of the fact that the Indemnitee is or was a director, officer,
trustee, fiduciary, employee or agent of the Company, or any
affiliate of the Company, by reason of any action or inaction on
the part of the Indemnitee while an officer or director or by
reason of the fact that the Indemnitee is or was serving at the
request of the Company as a director, officer, trustee, fiduciary,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, including an employee benefit
plan, a witness in any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Company) to which the Indemnitee is not a party, the Indemnitee
shall be indemnified against all expenses actually and reasonably
incurred by the Indemnitee or on the Indemnitee’s behalf in
connection therewith.
Expenses and Indemnification
Procedure .
Advancement of Expenses . The Company shall advance all Expenses
actually and reasonably incurred by or on behalf of the Indemnitee
in connection with any civil or criminal action, suit or proceeding
referenced in Section 1 unless and until such defense may be
finally adjudicated by court order or judgment from which no
further right of appeal exists, subject to the terms and in
accordance with the procedures set forth in this Section 2
.
Presumptions Regarding Advances
. For purposes of any advancement
hereunder, the Indemnitee shall be deemed to have acted (i) in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the Company, and (ii) with respect
to any criminal action or procedure, to have had no reasonable
cause to believe his conduct was unlawful if, under either (i) or
(ii), his action is based on the records or books of account of the
Company, or the records or books of account of another corporation,
partnership, joint venture, trust or other enterprise
(collectively, the “ other enterprises
”), including financial statements, or on information
supplied to him by the officers of the Company or other enterprises
in the course of their duties, or on the advice of legal counsel
for the Company or other enterprises or on information or records
given or reports made to the Company or other enterprises by an
independent certified public accountant or by an appraiser or other
expert selected with reasonable care by the Company or other
enterprises. the Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified by
the Company as authorized hereby.
Notice/Cooperation by the Indemnitee
. the Indemnitee shall, as a
condition precedent to his right to be indemnified under this
Agreement, give the Company notice in writing as soon as
practicable of any claim made against the Indemnitee for which
indemnification will or could be sought under this Agreement.
Notice to the Company shall be directed to West Pharmaceutical
Services, Inc., 101 Gordon Drive, PO Box 645, Lionville,
Pennsylvania 19341, Facsimile: (610) 594-3013, Attention: John R.
Gailey (or such other address as the Company may from time to time
designate in writing to the Indemnitee); provided, however ,
that the failure to so notify the Company shall not relieve the
Company of any obligation which it may have to the Indemnitee under
this Agreement or otherwise unless and only to the extent that such
failure or delay materially prejudices the
Company. Notice shall be deemed received on the third
business day after the date postmarked if sent by domestic
certified or registered mail, properly addressed; otherwise, notice
shall be deemed received when such notice shall actually be
received by the Company. In addition, the Indemnitee shall give the
Company such information and cooperation as it may reasonably
require and as shall be within the Indemnitee’s
power.
Procedure . Any indemnification and advances provided for
in Section 1 and this Section 2 shall be made no
later than 45 days after receipt of the written request of the
Indemnitee, coupled with appropriate documentation to support the
requested payment. If a claim under this Agreement, under any
statute, or under any provision of the Company’s Articles of
Incorporation or Bylaws providing for indemnification is not paid
in full by the Company within 45 days after receipt of a fully
documented written request for payment thereof has first been
received by the Company, the Indemnitee may, but need not, at any
time thereafter bring an action against the Company to recover the
unpaid amount of the claim and, subject to Section 13 , the
Indemnitee shall also be entitled to be paid for the expenses
(including attorneys’ fees) of bringing such action. It shall
be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in connection with any
action, suit or proceeding in advance of its final disposition)
that the Indemnitee has not met the standards of conduct which make
it permissible under applicable law for the Company to indemnify
the Indemnitee for the amount claimed, but the burden of proving
such defense shall be on the Company, and the Indemnitee shall be
entitled to receive interim payments of Expenses pursuant to
Section 2(a) unless and until such defense may be finally
adjudicated by court order or judgment from which no further right
of appeal exists. It is the parties’ intention that if the
Company contests the Indemnitee’s right to indemnification,
the question of the Indemnitee’s right to indemnification
shall be for the court to decide, and neither the failure of the
Company (including its Board of Directors, any committee or
subgroup of the Board of Directors, independent legal counsel, or
its shareholders) to have made a determination that indemnification
of the Indemnitee is proper in the circumstances because the
Indemnitee has met the applicable standard of conduct required by
applicable law, nor an actual determination by the Company
(including its Board of Directors, any committee or subgroup of the
Board of Directors, independent legal counsel, or its shareholders)
that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has or has
not, as the case may be, met the applicable standard of
conduct.
Notice to Insurers . If, at the time of the receipt of a notice of
claim pursuant to Section 2(c) , the Company has
directors’ and officers’ liability insurance in effect,
the Company shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set
forth in the respective policies. The Company shall thereafter take
all necessary or desirable action to cause such insurers to pay, on
behalf of the Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such
policies.
Selection of Counsel . If the Company shall be obligated under
Section 1 or Section 2 to pay the Expenses of
any proceeding against the Indemnitee, the Company, if appropriate,
shall be entitled to assume the defense of such proceeding, with
counsel approved by the Indemnitee, upon the delivery to the
Indemnitee of written notice of its election to do so. After
delivery of such notice, approval of such counsel by the Indemnitee
and the retention of such counsel by the Company, the Company will
not be liable to the Indemnitee under this Agreement for any fees
of counsel subsequently incurred by the Indemnitee
