Exhibit 10.1
INDEMNIFICATION AGREEMENT dated as of _____________________,
between Minerals Technologies Inc., a Delaware corporation (the "
Company "), and the other party signatory hereto (the "
Indemnitee ").
WHEREAS,
the Company has adopted provisions in its Certificate of
Incorporation and Bylaws providing for indemnification of its
officers and directors to the fullest extent permitted by the DGCL,
and the Company wishes to clarify and enhance the rights and
obligations of the Company and the Indemnitee with respect to
indemnification;
NOW,
THEREFORE, in consideration of the Indemnitee's service or
continued service as a director or officer of the Company, the
parties hereto agree as follows:
1.
Service by Indemnitee . The Indemnitee agrees to serve or
continue to serve as a director or officer of the Company so long
as the Indenmitee is duly elected and qualified or appointed and
until such time as the Indemnitee resigns or fails to stand for
reelection or is removed from his position. The Indemnitee may at
any time and for any reason resign or be removed from such position
in the sole discretion of the Company (subject to any other
contractual obligation or any obligation or restriction imposed by
the Certificate of Incorporation or Bylaws or otherwise by
operation of law), in which event the Company shall have no
obligation hereunder to continue the Indemnitee in any such
position.
2.
Indemnification . The Company shall
indemnify the Indemnitee as provided in this Agreement and to the
fullest extent permitted by the DGCL in effect on the date hereof
and as amended from time to time (but, in the case of any such
amendment, only to the extent that such amendment permits the
Company to provide broader indemnification rights than such law
permitted the Company to provide prior to such amendment). Without
limiting the scope of the indemnification provided by this Section
2, the right to indemnification of the Indemnitee provided
hereunder shall include, but shall not be limited to, those rights
hereinafter set forth; provided , however, that no
indemnification shall be paid to the Indemnitee:
(a) to the extent
prohibited by the DGCL, the Certificate of Incorporation or the
Bylaws;
(b) to the extent payment
with respect to any indemnifiable matter is actually made to the
Indemnitee under a valid and collectible insurance policy or under
a valid and enforceable indemnity clause, bylaw or other agreement
of the Company or any other Person on whose board the Indemnitee
serves at the request of the Company; or
(c) in connection with an
action, suit or proceeding, or part thereof (including claims
and counterclaims) initiated by the Indemnitee, except a judicial
proceeding or arbitration pursuant to Section 10 to enforce the
rights under this Agreement, unless the action, suit or proceeding
(or part thereof) was authorized by the Board.
3.
Indemnification in Proceedings other than
Proceedings by or in the Right of the Company . Subject
to Section 2, the Indemnitee shall be entitled to the
indemnification rights provided in this Section 3 if the Indemnitee
was, is, or is threatened to be made, a party to or a participant
in any Proceeding (other than a Proceeding by or in the right of
the Company) by reason of the Indemnitee's Corporate Status, or by
reason of anything done or not done by the Indemnitee in any such
capacity. Pursuant to this Section 3, the Indemnitee shall be
indemnified against all costs, judgments, penalties, fines,
liabilities, amounts paid in settlement by or on behalf of the
Indemnitee, and Expenses (including all interest, assessments and
other charges paid or payable in connection with or in respect of
such Expenses) actually and reasonably incurred by or on behalf of
the Indemnitee in connection with such Proceeding or any claim,
issue or matter therein, 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 Proceeding, had no reasonable cause to believe the
Indemnitee's conduct was unlawful.
4.
Indemnification in Proceedings by or in the
Right of the Company . Subject to Section 2, the Indemnitee
shall be entitled to the indemnification rights provided in this
Section 4 if the Indemnitee was, is, or is threatened to be made, a
party to or participant in any Proceeding brought by or in the
right of the Company to procure a judgment in its favor by reason
of the Indemnitee's Corporate Status, or by reason of anything done
or not done by the Indemnitee in any such capacity. Pursuant to
this Section 4, the Indemnitee shall be indemnified against all
costs, judgments, penalties, fines, liabilities, amounts paid in
settlement by or on behalf of the Indenmitee, and Expenses
(including all interest, assessments and other charges paid or
payable in connection with or in respect of such Expenses) actually
and reasonably incurred by or on behalf of the Indemnitee in
connection with such Proceeding or any claim, issue or matter
therein, 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; provided , however , that
no such indemnification shall be made in respect of any claim,
issue or matter as to which applicable law expressly prohibits such
indemnification by reason of any adjudication of liability of the
Indemnitee to the Company, unless and only to the extent that the
Court of Chancery of the State of Delaware or 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 entitled to
indemnification for such costs, judgments, penalties, fines,
liabilities and Expenses as such court shall deem proper.
5.
Indemnification for Costs, Charges and Expenses of Successful
Party . Notwithstanding the limitations of Sections 3 and 4, to
the extent that the Indemnitee is successful, on the merits or
otherwise, in whole or in part, in defense of any Proceeding or in
defense of any claim, issue or matter therein, including, without
limitation, the dismissal of any action without prejudice, or if it
is ultimately determined that the Indemnitee is otherwise entitled
to be indemnified against Expenses, the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred
by the Indemnitee in connection therewith.
6.
Partial Indemnification . If the Indemnitee is entitled
under any provision of this Agreement to indemnification by the
Company for some or a portion of the costs, judgments, penalties,
fines, liabilities or Expenses actually and reasonably incurred in
connection with any Proceeding, but not, however, for the total
amount thereof, the Company shall nevertheless
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indemnify the Indemnitee for the portion of such
costs, judgments, penalties, fines, liabilities and Expenses
actually and reasonably incurred to which the Indemnitee is
entitled.
7.
Indemnification for Expenses of a Witness and Additional
Expenses . Notwithstanding any other provision of this
Agreement, to the maximum extent permitted by applicable law, the
Indemnitee shall be entitled to indemnification against all
Expenses actually and reasonably incurred or suffered by the
Indemnitee or on the Indemnitee's behalf if the Indemnitee appears
as a witness or otherwise incurs legal expenses as a result of or
related to the Indemnitee's service as a director or officer of the
Company, in any threatened, pending or completed legal,
administrative, investigative or other proceeding or matter to
which the Indemnitee neither is, nor is threatened to be made, a
party.
8.
Determination of Entitlement to Indemnification . Upon
written request by the Indemnitee for indemnification pursuant to
Sections 3, 4, 5, 6 or 7, the entitlement of the Indemnitee to
indemnification, to the extent not expressly provided for pursuant
to the terms of this Agreement, shall be determined by the
following person or persons, who shall be empowered to make such
determination: (a) if a Change of Control shall have occurred, by
Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to the Indemnitee; and (b) if a Change of
Control shall not have occurred, (i) by the Board by a majority
vote of Disinterested Directors, whether or not such majority
constitutes a quorum; (ii) by a committee of Disinterested
Directors designated by a majority vote of such directors, whether
or not such majority constitutes a quorum; (iii) if there are no
Disinterested Directors, or if the Disinterested Directors so
direct, by Independent Counsel in a written opinion to the Board, a
copy of which shall be delivered to the Indemnitee; or (iv) the
stockholders of the Company. Such Independent Counsel shall be
selected by the Board and approved by the Indemnitee. Upon any
failure of the Board so to select such Independent Counsel or upon
the failure of the Indemnitee so to approve, such Independent
Counsel shall be selected upon application to a court of competent
jurisdiction. Such determination of entitlement to indemnification
shall be made not later than 30 days after receipt by the Company
of a written request for indemnification. Such request shall
include documentation or information that is necessary for such
determination and which is reasonably available to the Indemnitee.
Any Expenses incurred by the Indemnitee in connection with a
request for indemnification or payment of Expenses hereunder, under
any other agreement, any provision of the Certificate of
Incorporation, Bylaws or any directors' and officers' liability
insurance of the Company, shall be borne by the Company. The
Company shall indemnify the Indemnitee for any such Expense and
agrees to hold the Indemnitee harmless therefrom irrespective of
the outcome of the determination of the Indemnitee's entitlement to
indemnification. If the person or persons making such determination
shall determine that the Indemnitee is entitled to indemnification
as to part (but not all) of the application for indemnification,
such person or persons shall reasonably prorate such partial
indemnification among the claims, issues or matters at issue at the
time of the determination. If it is determined that the Indemnitee
is entitled to indemnification, payment to the Indemnitee shall be
made within seven days after such determination.
9.
Presumptions and Effect of Certain Proceedings . The
Secretary of the Company shall, promptly upon receipt of the
Indemnitee's request for indemnification, advise in writing the
Board or such other person or persons empowered to make the
determination as provided in Section 8 that the Indemnitee has made
such request for indemnification. Upon making such request for
indemnification, the Indemnitee shall be presumed to be entitled to
indemnification
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hereunder and the Company shall have the burden of proof in making
any determination contrary to such presumption. If the person or
persons so empowered to make such determination shall have failed
to make the requested determination with respect to indemnification
within 30 days after receipt by the Company of such request, a
requisite determination of entitlement to indemnification shall be
deemed to have been made and the Indemnitee shall be absolutely
entitled to such indemnification, absent actual and material fraud
in the request for indemnification. The termination of any
Proceeding described in Sections 3 or 4 by judgment, order,
settlement or conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, (a) create a presumption
that the Indemnitee did not act in good faith and in a manner that
the Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company, or, with respect to any criminal
Proceeding, that the Indemnitee had reasonable cause to believe
that the Indemnitee's conduct was unlawful; or (b) otherwise
adversely affect the rights of the Indemnitee to indemnification
except as may be provided herein.
10.
Remedies of the Indemnitee in Cases of Determination not to
Indemnify or to pay Expenses . In the event that a
determination is made that the Indemnitee is not entitled to
indemnification hereunder or if payment has not been timely made
following a determination of entitlement
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