Exhibit 10.1
INDEMNIFICATION
AGREEMENT
THIS
AGREEMENT is made and entered into this
day of April 2008 by and between Dynamic Materials Corporation, a Delaware
corporation (the “Corporation”), and
(“Agent”).
RECITALS
WHEREAS, Agent
performs a valuable service to the Corporation in his capacity as [Director][Officer
Tile] of the Corporation;
WHEREAS, the
stockholders of the Corporation have adopted bylaws (the “Bylaws”) providing
for the indemnification of the directors, officers, employees and other agents
of the Corporation, including persons serving at the request of the Corporation
in such capacities with other corporations or enterprises, as authorized by the
Delaware General Corporation Law, as amended (the “Code”);
WHEREAS, the Bylaws
and the Code, by their non-exclusive nature, permit contracts between the
Corporation and its agents, officers, employees and other agents with respect
to indemnification of such persons; and
WHEREAS, in order to
induce Agent to continue to serve as [Director][Officer Title] of the
Corporation, the Corporation has determined and agreed to enter into this
Agreement with Agent.
NOW,
THEREFORE, in consideration of Agent’s continued service as [Director][Officer
Title] after the date hereof, the parties hereto agree as follows:
AGREEMENT
1. Services to the Corporation. Agent will serve, at the will of the
Corporation or under separate contract, if any such contract exists, as [Director][Officer
Title] of the Corporation or as a director, officer or other fiduciary of an
affiliate of the Corporation (including any employee benefit plan of the
Corporation) faithfully and to the best of his ability so long as he is duly
elected and qualified in accordance with the provisions of the Bylaws or other
applicable charter documents of the Corporation or such affiliate; provided, however, that Agent may at any
time and for any reason resign from such position (subject to any contractual
obligation that Agent may have assumed apart from this Agreement) and that the
Corporation or any affiliate shall have no obligation under this Agreement to
continue Agent in any such position.
2. Right to Indemnification. To the fullest extent permitted by the Code:
(a) The Corporation shall indemnify
Agent if Agent was or is a party or is threatened to be made a party to any
threatened, pending or completed proceeding (including any investigations) by
reason of the fact that Agent is or was or has agreed to serve at the request
of the Corporation as a director, officer, employee or agent (which for
purposes hereof, shall
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include a trustee, partner or manager or similar capacity) of the Corporation,
or while serving as a director or officer of the Corporation, is or was serving
or has agreed to serve at the request of the Corporation as a director,
officer, employee or agent (which, for purposes hereof, shall include a
trustee, partner or manager or similar capacity) of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity. For the avoidance of doubt, the foregoing
indemnification obligation includes, without limitation, claims for monetary
damages against Agent in respect of an alleged breach of fiduciary duties, to
the fullest extent permitted under Section 102(b)(7) of the Code as
in existence on the date hereof.
(b) The indemnification provided
by this Section 2 shall be from and against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by Agent or on Agent’s behalf in connection with such proceeding and
any appeal therefrom, but shall only be provided if Agent acted in good faith
and in a manner Agent reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal proceeding, had
no reasonable cause to believe Agent’s conduct was unlawful.
(c) Notwithstanding
the foregoing provisions of this Section 2, in the case of any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that Agent is or was a
director, officer, employee or agent of the Corporation, or while serving as a
director or officer of the Corporation, is or was serving or has agreed to
serve at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, Agent shall be entitled to the rights of
indemnification provided for herein in connection with such action or suit if
the Agent acted in good faith and in a manner the Agent reasonably believed to
be in or not opposed to the best interests of the Corporation; provided,
however, if applicable law so provides, no indemnification shall be made in
respect of any such claim, issue or matter as to which Agent shall have been
finally adjudged to be liable to the Corporation unless, and only to the extent
that, the Delaware Court of Chancery 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, Agent is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
(d) The termination
of any proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its
equivalent, shall not create a presumption that Agent did not act in good faith
and in a manner which Agent reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that Agent’s conduct was unlawful.
(e) The
indemnification and contribution provided for herein will remain in full force
and effect regardless of any investigation made by or on behalf of Agent or any
officer, director, employee, agent or controlling person of Agent.
3. Determination That Indemnification Is Proper. Any indemnification hereunder shall (unless
otherwise ordered by a court) be made by the Corporation unless a
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determination is made that indemnification of
such person is not proper in the circumstances because he or she has not met
the applicable standard of conduct set forth in Section 2(b) hereof. Any such determination shall be made:
(a) by a majority
vote of the directors who are not parties to the proceeding in question (“disinterested
directors”), even if less than a quorum;
(b) by a majority
vote of a committee of disinterested directors designated by majority vote of disinterested
directors, even if less than a quorum;
(c) by a majority
vote of a quorum of the outstanding shares of stock of all classes entitled to
vote on the matter, voting as a single class, which quorum shall consist of
stockholders who are not at that time parties to the proceeding in question;
(d) by independent
legal counsel; or
(e) by a court of
competent jurisdiction.
4. Limitations on Additional Indemnity. Notwithstanding any other provision herein to
the contrary, no indemnity pursuant to Section 2 hereof shall be paid by
the Corporation:
(a) on account of any proceeding
with respect to which final judgment is rendered against Agent for an
accounting of profits made from the purchase or sale by Agent of securities of
the Corporation pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or similar provisions of
any federal, state or local statutory law;
(b) for which payment is
actually made to Agent under a valid and collectible insurance policy or under
a valid and enforceable indemnity clause, bylaw or agreement, except in respect
of any excess beyond payment under such insurance, clause, bylaw or agreement;
(c) if indemnification is not
lawful (and, in this respect, both the Corporation and the Agent have been
advised that the Securities and Exchange Commission believes that
indemnification for liabilities arising under the federal securities laws is
against public policy and is, therefore, unenforceable and that claims for
indemnification should be submitted to appropriate courts for adjudication); or
(d) in connection with any
proceeding (or part thereof) initiated by Agent, or any proceeding by Agent
against the Corporation or its directors, officers, employees or other agents,
unless (i) such indemnification is expressly required to be made by law, (ii) the
proceeding was authorized by the Board of Directors of the Corporation, (iii) such
indemnification is provided by the Corporation, in its sole discretion,
pursuant to the powers vested in the Corporation under the Code, or (iv) the
proceeding is initiated pursuant to Section 10 hereof.
5. Continuation of Indemnity. All agreements and obligations of the
Corporation contained herein shall continue during the period Agent is a director,
officer, employee or other
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agent of the Corporation (or is or was serving at the request of the
Corporation as a director, officer, employee or other agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise) and shall continue thereafter so long as Agent shall be subject to
any possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal, arbitration, administrative or
investigative, by reason of the fact that Agent was serving in the capacity
referred to herein.
6. Successful Defense; Partial Indemnification.
(a) To the extent that Agent has
been successful on the merits or otherwise in defense of any proceeding
referred to in Section 2 hereof or in defense of any claim, issue or
matter therein, Agent shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred in connection therewith. For purposes of this Agreement and without
limiting the foregoing, if any proceeding is disposed of, on the merits or
otherwise (including a disposition without prejudice), without:
(i) the disposition
being adverse to Agent;
(ii) an adjudication
that Agent was liable to the Corporation;
(iii) a plea of
guilty or nolo contendere by Agent;
(iv) an adjudication
that Agent did not act in good faith and in a manner Agent reasonably believed
to be in or not opposed to the best interests of the Corporation; and
(v) with respect to
any criminal proceeding, an adjudication that Agent had reasonable cause to
believe Agent’s conduct was unlawful,
Agent shall be considered for the purposes hereof to
have been wholly successful with respect thereto.
(b) If Agent is entitled under
any provision of this Agreement to indemnification by the Corporation for a
portion of the expenses (including attorneys’ fees), witness fees, damages,
judgments, fines and amounts paid in settlement and any other amounts that
Agent becomes legally obligated to pay in connection with any action, suit or
proceeding referred to in Section 2 hereof even if not entitled hereunder
to indemnification for the total amount thereof, and the Corporation shall
indemnify Agent for the portion thereof to which Agent is entitled.
7. Notification and Defense of Claim. Not later than thirty (30) days after receipt
by Agent of notice of the commencement of any action, suit or proceeding, Agent
will, if a claim in respect thereof is to be made against the Corporation under
this Agreement, notify the Corporation of the commencement thereof; but the
omission so to notify the Corporation will not relieve the Corporation from any
liability which it may have to Agent hereunder, except to the extent the
Corporation is prejudiced in its defense of such proceeding as a result of such
failure. With respect to any such
action, suit or proceeding as to which Agent notifies the Corporation of the
commencement thereof:
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(a) the Corporation will be
entitled to participate therein at its own expense;
(b) except as otherwise provided
below, the Corporation may, at its option and jointly with any other
indemnifying party similarly notified and electing to assume such defense,
assume the defense thereof, with counsel reasonably satisfactory to Agent. After notice from the Corporation to Agent of
its election to assume the defense thereof, the Corporation will not be liable
to Agent under this Agreement for any legal or other expenses subsequently
incurred by Agent in connection with the defense thereof except for reasonable
costs of investigation or otherwise as provided below. Agent shall have the right to employ separate
counsel in such action, suit or proceeding but the fees and expenses of such
counsel incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of Agent unless (i) the employment
of counsel by Agent has been authorized by the Corporation, (ii) counsel
to the Corporation or Agent shall have reasonably concluded that there may be a
conflict of interest between the Corporation and Agent in the conduct of the
defense of such action or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such action, in each of which cases
the fees and expenses of Agent’s separate counsel shall be at the expense of
the Corporation. The Corporation shall
not be entitled to assume the defense of any action, suit or proceeding brought
by or on behalf of the Corporation or as to which counsel for the Corporation
or Agent shall have made the conclusion provided for in clause (ii) above;
and
(c) the Corporation shall not be
liable to indemnify Agent under this Agreement for any amounts paid in
settlement of any action or claim effected without its written consent, which
shall not be unreasonably withheld. The
Corporation shall be permitted to settle any action except that it shall not
settle any action or claim in any manner which would impose any penalty or
limitation on Agent without Agent’s written consent, which may be given or
withheld in Agent’s sole discretion.
8. Procedure for Indemnification.
(a) To obtain
indemnification, Agent shall promptly submit to the Corporation a written
request, including therein or therewith such documentation and information as
is reasonably available to Agent and is reasonably necessary to determine
whether and to what extent Agent is entitled to indemnification. The Corporation shall, promptly upon receipt
of such a request for indemnification, advise the Board of Directors in writing
that Agent has requested indemnification.
(b) The Corporation’s
determination whether to grant Agent’s indemnification request shall be made
promptly, and in any event within 45 days following receipt of a request for indemnification
pursuant to Section 8(a).
(c) The Agent shall
be presumed to be entitled to indemnification under this Agreement upon
submission of a request for indemnification pursuant to this Section 8,
and the Corporation shall have the burden of proof in overcoming that
presumption in reaching a determination contrary to that presumption. Such presumption shall be used as a basis for
a determination of entitlement to indemnification unless the Corporation
overcomes such presumption by clear and convincing evidence.
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9. Expenses. The
Corporation shall advance, prior to the full disposition of any proceeding,
promptly following request therefor, all expenses incurred by Agent in
connection with such proceeding upon receipt of an undertaking by or on behalf
of Agent to repay said amounts if it shall be determined ultimately that Agent
is not entitled to be indemnified under the provisions of this Agreement, the
Bylaws, the Code or otherwise.
10. Enforcement. Any right to
indemnification or advances granted by this Agreement to Agent shall be
enforceable by or on behalf of Agent in any court of competent jurisdiction if (i) the
claim for indemnification or advances is denied by the Corporation, in whole or
in part, or (ii) no disposition of such claim is made within ninety (90)
days of request therefor. The Agent’s
expenses (including attorneys’ fees) incurred in connection with successfully
establishing Agent’s right to indemnification, in whole or in part, in any such
proceeding or otherwise shall also be indemnified by the Corporation. It shall be a defense to any action for which
a claim for indemnification is made under Section 2 hereof (other than an
action brought to enforce a claim for expenses pursuant to Section 9
hereof, provided that the
required undertaking has been tendered to the Corporation) that Agent has not
met the standard of conduct set forth in Section 2 hereof or is not
entitled to indemnification because of the limitations set forth in Section 4
hereof but the burden of proving such defense by clear and convincing evidence
shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of such enforcement action that indemnification of Agent is proper
in the circumstances, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel or its stockholders) that
such indemnification is improper shall be a defense to the action or create a
presumption that Agent is not entitled to indemnification under this Agreement
or otherwise.
11. Insurance and Subrogation.
(a) The Corporation
shall purchase and maintain insurance in reasonable amounts from established
and reputable insurers on behalf of Agent (which shall include so called “tail”
coverage) who is or was or has agreed to serve at the request of the Corporation
as a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against, and incurred by, Agent or on
Indemnitee’s behalf in any such capacity, or arising out of Agent’s status as
such, whether or not the Corporation would have the power to indemnify Agent
against such liability under the provisions of this Agreement. If the Corporation has such insurance in
effect at the time the Corporation receives from Agent any notice of the
commencement of a proceeding, the Corporation shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the policy. The Corporation
shall thereafter take all necessary or desirable action to cause such insurers
to pay, on behalf of the Agent, all amounts payable as a result of such
proceeding in accordance with the terms of such policy.
(b) In the event of payment by
the Corporation under this Agreement, the Corporation shall be subrogated to
the extent of such payment to all of the rights of recovery of Agent with
respect to any insurance policy, who shall execute all documents required and
shall
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do all acts that may be necessary to secure such rights and to enable
the Corporation effectively to bring suit to enforce such rights in accordance
with the terms of such insurance policy.
12. Non-Exclusivity of Rights. The rights conferred on Agent by this
Agreement shall not be exclusive of any other right which Agent may have or
hereafter acquire under any statute, provision of the Corporation’s Certificate
of Incorporation or Bylaws, agreement, vote of stockholders or directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office.
13. Survival of Rights.
(a) The rights conferred on
Agent by this Agreement shall continue after Agent has ceased to be a director,
officer, employee or other agent of the Corporation or to serve at the request
of the Corporation as a director, officer, employee or other agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise and shall inure to the benefit of Agent’s heirs, executors and
administrators.
(b) The Corporation shall
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of the Corporation, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Corporation would
be required to perform if no such succession had taken place.
14. Separability. Each of the
provisions of this Agreement is a separate and distinct agreement and
independent of the others, so that if any provision hereof shall be held to be
invalid for any reason, such invalidity or unenforceability shall not affect
the validity or enforceability of the other provisions hereof. Furthermore, if this Agreement shall be
invalidated in its entirety on any ground, then the Corporation shall
nevertheless indemnify Agent to the fullest extent provided by the Bylaws, the
Code or any other applicable law.
15. Governing Law. This
Agreement shall be interpreted and enforced in accordance with the laws of the
State of Delaware.
16. Amendment and Termination. No amendment, notification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
17. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute but one and the same Agreement. Only one such counterpart need be produced to
evidence the existence of this Agreement.
18. Headings. The headings
of the sections of this Agreement are inserted for convenience only and shall
not be deemed to constitute part of this Agreement or to affect the
construction hereof.
19. Notices. All notices,
requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given (i) upon delivery if delivered by
hand to the party to whom such communication was directed or (ii) upon the
third business day
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after the date on which such communication was mailed if mailed by
certified or registered mail with postage prepaid:
(a) If to Agent, at the address
indicated on the signature page hereof.
(b) If to the Corporation, to:
Dynamic
Materials Corporation
5405 Spine Road
Boulder, Colorado 80301
Attn: Secretary
or to such other address as may have been
furnished to Agent by the Corporation.
[Signature Page Follows]
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IN WITNESS
WHEREOF, the parties hereto have executed this Agreement on and as of the day
and year first above written.
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DYNAMIC
MATERIALS CORPORATION
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By:
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Agent
Print Name and Address
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Name
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Address
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Signature
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