EXHIBIT 10.23
COMPENSATION AND INDEMNIFICATION AGREEMENT
This COMPENSATION AND INDEMNIFICATION AGREEMENT is made and entered
into as of the 10th day of October, 1997 (the "Agreement") among INTERNATIONAL
SPECIALTY PRODUCTS INC., a Delaware corporation (the "Company"), ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ (each, a "Director" and together, the "Directors").
WHEREAS, the Company's Board of Directors, pursuant to a unanimous
written consent dated as of September 8, 1997, appointed the Directors as the
members of a Special Committee of the Board of Directors of the Company (the
"Special Committee") for the purpose of considering and making recommendations
to the Company's Board of Directors with respect to a possible transaction
between the Company and its parent corporation, ISP Holdings Inc.;
WHEREAS, in order to induce the Directors to serve as the members of
the Special Committee and to accept the additional duties, responsibilities and
burdens of such service, the Company wishes to provide them with the
compensation and indemnification arrangements set forth herein; and
WHEREAS, the Directors are willing to serve and continue to serve as
the members of the Special Committee on the terms set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the parties
hereto do hereby agree as follows:
1. SERVICE ON THE SPECIAL COMMITTEE. Each Director hereby agrees to
serve as a member of the Special Committee on the terms provided for herein so
long as such appointment by the Board shall remain in effect. Each Director may,
however, resign from such position at any time and for any reason and the
Special Committee may dissolve by recommending such dissolution to the Board.
The Company's obligation to indemnify each Director as set forth in this
Agreement shall continue in full force and effect notwithstanding any such
termination of appointment, resignation or dissolution.
NYFS01...:\01\47201\0035\0297\AGR5268R.030
2. COMPENSATION AND EXPENSE REIMBURSEMENT. In return for his
services as a member of the Special Committee, each Director shall be entitled o
receive from the Company a fee of $50,000, plus $2,000 for each meeting of the
Special Committee. Such fees shall be payable to the Director upon submission to
the Company's General Counsel of a written statement setting forth the dates on
which such services were performed. In addition, each Director shall be
reimbursed by the Company for his reasonable out-of-pocket travel and other
expenses incurred in connection with his service on the Special Committee, in a
manner consistent with the Company's reimbursement of expenses for members of
its Board of Directors.
3. INDEMNITY. The Company hereby agrees to hold harmless and
indemnify each Director with respect to their service on, and any matter or
transaction considered by, the Special Committee to the full extent authorized
or permitted by law, as such may be amended from time to time, and Article
Eighth of the Certification of Incorporation, as such may be amended. In
furtherance of the foregoing indemnification, and without limiting the
generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of
the Company. Each Director shall be entitled to the rights of indemnification
provided in this Section 3(a) if, by reason of his Corporate Status (as
hereinafter defined), he is, or is threatened to be made, a party to or
participant in any Proceeding (as hereinafter defined) other than a Proceeding
by or in the right of the Company. Pursuant to this Section 3(a), each Director
shall be indemnified against all Expenses (as hereinafter defined), judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with such Proceeding or any claim, issue
or matter therein, if he acted in good faith and in a manner he 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 his
conduct was unlawful.
(b) Proceedings by or in the Right of the Company. Each
Director shall be entitled to the rights of indemnification provided in this
Section 3(b) if, by reason of his Corporate Status, he 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. Pursuant to this Section
3(b), each Director shall be
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indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection with such Proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company; provided, however, that, if applicable law so provides, no
indemnification against such Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which such Director shall have been
finally adjudged to be liable to the Company unless and to the extent that the
Court of Chancery of the State of Delaware shall determine that such
indemnification may be made.
(c) Indemnification for Expenses of a Party Who is Wholly or
Partly Successful. Notwithstanding any other provision of this Agreement, to the
extent that a Director is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified to the maximum extent permitted by law against all Expenses actually
and reasonably incurred by him or on his behalf in connection therewith. If a
Director is not wholly successful in such Proceeding but 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 such Director against
all Expenses actually and reasonably incurred by him or on his behalf in
connection with each successfully resolved claim, issue or matter. For purposes
of this Section 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.
4. ADDITIONAL INDEMNITY. In addition to, and without regard to any
limitations on, the indemnification provided for in Section 3, the Company shall
and hereby does indemnify and hold harmless each Director against all Expenses,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf if, by reason of his Corporate
Status he is, or is threatened to be made, a party to or participant in any
Proceeding (including a Proceeding by or in the right of the Company). The only
limitation that shall exist upon the Company's obligations pursuant to this
Agreement shall be that the Company shall not be obligated to make any payment
to a Director that is finally determined (under the procedures, and subject to
the presumptions, set forth in Sections 8 and 9 hereof) to be unlawful under
Delaware law.
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5. CONTRIBUTION IN THE EVENT OF JOINT LIABILITY.
(a) Whether or not the Indemnification provided in Sections 3
and 4 hereof is available, in respect of any threatened, pending or completed
action, suit or proceeding in which Company is jointly liable with any Director
(or would be if joined in such action, suit or proceeding), Company shall pay,
in the first instance, the entire amount of any judgment or settlement of such
action, suit or proceeding without requiring such Director to contribute to such
payment and the Company hereby waives and relinquishes any right of contribution
it may have against such Director. The Company shall not enter into any
settlement of any action, suit or proceeding in which the Company is jointly
liable with a Director (or would be if joined in such action. suit or
proceeding) unless such settlement provides for a full and final release of all
claims asserted against such Director.
(b) Without diminishing or impairing the obligations of the
Company set forth in the preceding subparagraph, if, for any reason, a Director
shall elect or be required to pay all or any portion of any judgment or
settlement in any threatened, pending or completed action, suit or proceeding in
which Company is jointly liable with such Director (or would be if joined in
such action, suit or proceeding), the Company shall contribute to the amount of
Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred and paid or payable by such Director in proportion to the
relative benefits received by the Company and all officers, directors or
employees of the Company other than such Director who are jointly liable with
him (or would be if joined in such action, suit or proceeding), on the one hand,
and the Director, on the other hand, from the transaction from which such
action, suit or proceeding arose; provided, however, that the proportion
determined on the basis of relative benefit may, to the extent necessary to
conform to law, be further adjusted by reference to the relative fault of the
Company and all officers, directors or employees of the Company other than such
Director who are jointly liable with the Director (or would be if joined in such
action, suit or proceeding), on the one hand, and the Director, on the other
hand, in connection with the events that resulted in such Expenses, judgments,
fines or settlement amounts, as well as any other equitable considerations which
the law may require to be considered. The relative fault of the Company and all
officers, directors or employees of the Company other than
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the Director who are jointly liable with him (or would be if joined in such
action, suit or proceeding), on the one hand, and the Director, on the other
hand, shall be determined by reference to, among other things, the degree to
which their actions were motivated by intent to gain personal profit or
advantage, the degree to which their liability is primary or secondary, and the
degree to which their conduct is active or passive.
(c) The Company hereby agrees to fully indemnify and hold each
Director harmless from any claims of contribution which may be brought by
officers, directors or employees of the Company who may be jointly liable with
such Director.
6. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any
other provision of this Agreement, to the extent that a Director is, by reason
of his Corporate Status, a witness in any Proceeding to which such Director is
not a party, he shall be indemnified against all Expenses actually and
reasonable incurred by him or on his behalf in connection therewith.
7. ADVANCEMENT OF EXPENSES. Notwithstanding any other provision of
this Agreement, the Company shall advance all reasonable Expenses incurred by or
on behalf of a Director in connection with any Proceeding by reason of such
Director's Corporate Status within ten days after the receipt by the Company of
a statement or statements from such Director requesting such advance or advances
from time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the Expenses
incurred by the Director and shall include or be preceded or accompanied by an
undertaking by or on behalf of such Director to repay any Expenses advanced if
it shall ultimately be determined that such Director is not entitled to be
indemnified against such Expenses. Any advances and undertakings to repay
pursuant to this Section 7 shall be unsecured and interest free. Notwithstanding
the foregoing, the obligation of the Company to advance Expenses pursuant to
this Section 7 shall be subject to the condition that, if, when and to the
extent that the Company determines that a Director would not be permitted to be
indemnified under applicable law, the Company shall be entitled to be
reimbursed, within thirty (30) days of such determination, by him for all such
amounts theretofore paid; provided, however, that if such Director has commenced
or thereafter commences legal proceedings in a court of competent jurisdiction
to
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secure a determination that he should be indemnified under applicable law, any
determination made by the Company that such Director would not be permitted to
be indemnified under applicable law shall not be binding and such Director shall
not be required to reimburse the Company for any advance of Expenses until a
final judicial determination is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or lapsed).
8. PROCEDURES AND PRESUMPTIONS FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION. It is the intent of this Agreement to secure for each Director
rights of indemnity that are as favorable as may be permitted under the law and
public policy of the State of Delaware. Accordingly, the parties agree that the
following procedures and presumptions shall apply in the event of any question
as to whether a Director is entitled to indemnification under this Agreement:
(a) To obtain indemnification (including, but not limited to,
the advancement of Expenses and contribution by the Company) under this
Agreement, a Director shall submit to the Company a written request, including
therein or therewith such documentation and information as is reasonably
available to such Director and is reasonably necessary to determine whether and
to what extent a Director is entitled to indemnification. The Secretary of the
Company shall, promptly upon receipt of such a request for indemnification,
advise the Board of Directors in writing that such Director has requested
indemnification.
(b) Upon written request by a Director for indemnification
pursuant to the first sentence of Section 8(a) hereof, a determination, if
required by applicable law, with respect to a Director's entitlement thereto
shall be made in the specific case by one of the following three methods, which
shall be at the election of such Director: (1) by a majority vote of the
disinterested directors, even though less than a quorum, or (2) by independent
legal counsel in a written opinion, or (3) by the stockholders.
(c) If the determination of entitlement to indemnification is
to be made by Independent Counsel pursuant to Section 8(b) hereof, the
Independent Counsel shall be selected as provided in this Section 8(c). The
Independent Counsel shall be selected by the Director (unless such Director
shall request that such selection be made by the Board of Directors). Such
Director or the Company, as the case may be, may, within 10 days after such
written notice of
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selection shall have been given, deliver to the Company or to the Director, as
the case may be, a written objection to such selection; provided, however, that
such objection may be asserted only on the ground that the Independent Counsel
so selected does not meet the requirements of "Independent Counsel" as defined
in Section 15(e) of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and timely
objection, the person so selected shall act as Independent Counsel. If a written
objection is made and substantiated, the Independent Counsel selected may not
serve as Independent Counsel unless and until such objection is withdrawn or a
court has determined that such objection is without merit. If, within 30 days
after submission by a Director of a written request for indemnification pursuant
to Section 8(a) hereof, no Independent Counsel shall have been selected and not
objected to, either the Company or the Director may petition the Court of
Chancery of the State of Delaware or other court of competent jurisdiction for
resolution of any objection which shall have been made by the Company or such
Director to the other's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the court or by such
other person as the court shall designate, and the person with respect to whom
all objections are so resolved or the person so appointed shall act as
Independent Counsel under Section 8(b) hereof. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to Section 8(b) hereof, and the
Company shall pay all reasonable fees and expenses incident to the procedures of
this Section 8(c), regardless of the manner in which such Independent Counsel
was selected or appointed.
(d) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume (unless there is a preponderance of competent
evidence to the contrary) that a Director is entitled to indemnification under
this Agreement if such Director has submitted a request for indemnification in
accordance with Section 8(a) of this Agreement.
(e) A Director shall be deemed to have acted in good faith if
such Director's action is based on the records or books of account of the
Enterprise, including financial statements, or on information supplied to such
Director by the officers of the Enterprise in the course of
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their duties, or on the advice of legal counsel for the Enterprise or the
Special Committee or on information or records given or reports made to the
Enterprise or the Special Committee by an independent certified public
accountant, by a financial advisor or by an appraiser or other expert selected
with reasonable care by the Enterprise or the Special Committee. In addition,
the knowledge and/or actions, or failure to act, of any director, officer, agent
or employee of the Enterprise shall not be imputed to a Director for purposes of
determining the right to indemnification under this Agreement. Whether or not
the foregoing provisions of this Section 8(e) are satisfied, it shall in any
event be presumed (unless there is a preponderance of competent evidence to the
contrary) that each Director has at all times acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company.
(f) The Company acknowledges that a settlement or other
disposition short of final judgment may be successful if it permits a party to
avoid expense, delay, distraction, disruption and uncertainty. In the event that
any action, claim or proceeding to which a Director is a party is resolved in
any manner other than by adverse judgment against such Director (including,
without limitation, settlement of such action, claim or proceeding with or
without payment of money or other consideration) it shall be presumed (unless
there is a preponderance of competent evidence to the contrary) that such
Director has been successful on the merits or otherwise in such action, suit or
proceeding.
(g) If the person, persons or entity empowered or selected
under Section 8(b) to determine whether a Director is entitled to
indemnification shall not have made a determination within sixty (60) days after
receipt by the Company of the request therefor, the requisite determination of
entitlement to indemnification shall be deemed to have been made and such
Director shall be entitled to such indemnification, absent (i) a misstatement by
such Director of a material fact, or an omission of a material fact necessary to
make such Director's statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such 60 day period may be extended for a
reasonable time, not to exceed an additional fifteen (15) days, if the person,
persons or entity making the determination with respect to
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entitlement to indemnification in good faith requires such additional time for
the obtaining or evaluating documentation and/or information relating thereto;
provided, further, that the foregoing provisions of this Section 8(g) shall not
apply if the determination of entitlement to indemnification is to be made by
the stockholders pursuant to Section 8(b) of this Agreement and if within
fifteen (15) days after receipt by the Company of the request for such
determination the Board of Directors or the Disinterested Directors, if
appropriate, resolve to submit such determination to the stockholders for their
consideration at the next annual meeting thereof and such determination is made
thereat.
(h) Each Director shall cooperate with the person, persons or
entity making such determination with respect to such Director's entitlement to
indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to such Director and reasonably necessary to such determination. Any
Independent Counsel, member of the Board of Directors, or stockholder of the
Company shall act reasonably and in good faith in making a determination under
the Agreement of a Director's entitlement to indemnification. Any costs or
expenses (including attorneys' fees and disbursements) incurred by a Director in
so cooperating with the person, persons or entity making such determination
shall be borne by the Company (irrespective of the determination as to such
Director's entitlement to indemnification) and the Company hereby indemnifies
and agrees to hold each Director harmless therefrom.
9. REMEDIES.
(a) In the event that (i) a determination is made pursuant to
Section 8 of this Agreement that a director is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not timely made pursuant
to Section 7 of this Agreement, (iii) no determination of entitlement to
indemnificatiOn shall have been made pursuant to Section 8(b) of this Agreement
within 90 days after receipt by the Company of the request for indemnification,
(iv) payment of indemnification is not made pursuant to this Agreement within
ten (10) days after receipt by the Company of a written request therefor, or (v)
payment of indemnification is not made within ten (10) days after a
determination has been made by a Director is entitled to
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indemnification or such determination is deemed to have been made pursuant to
Section 8 of this Agreement, such Director shall be entitled to an adjudication
in an appropriate court of the State of Delaware, or in any other court of
competent jurisdiction, of his entitlement to such indemnification. Such
Director shall commence such proceeding seeking an adjudication within 180 days
following the date on which such Director first has the right to commence such
proceeding pursuant to this Section 9(a). The Company shall not oppose a
Director's right to seek any such adjudication.
(b) In the event that a determination shall have been made
pursuant to Section 8(b) of this Agreement that a Director is not entitled to
indemnification, any judicial proceeding commenced pursuant to this Section 9
shall be conducted in all respects as a de novo trial, on the merits and such
Director shall not be prejudiced by reason of that adverse determination.
(c) If a determination shall have been made pursuant to
Section 8(b) of this Agreement that a Director is entitled to indemnification,
the Company shall be bound by such determination in any judicial proceeding
commenced pursuant to this Section 9, absent a prohibition of such
indemnification under applicable law.
(d) In the event that a Director, pursuant to this Section 9,
seeks a judicial adjudication of his rights under, or to recover damages for
breach of, this Agreement, or to recover under any directors' and officers'
liability insurance policies maintained by the Company, the Company shall pay on
his behalf, in advance, any and all expenses (of the types described in the
definition of Expenses in Section 15 of this Agreement) actually and reasonably
incurred by him in such judicial adjudication, regardless of whether such
Director ultimately is determined to be entitled to such indemnification,
advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any
judicial proceeding commenced pursuant to this Section 9 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court that the Company is bound by all the provisions of
this Agreement.
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10. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The rights of indemnification as provided by this
Agreement shall not be deemed exclusive of any other rights to which a Director
may at any time be entitled under applicable law, the Certificate of
Incorporation of the Company, the Bylaws, any agreement, a vote of stockholders
or a resolution of directors, or otherwise. No amendment, alteration or repeal
of this Agreement or of any provision hereof shall limit or restrict any right
of any Director under this Agreement in respect of any action taken or omitted
by such Director in his Corporate Status prior to such amendment, alteration or
repeal. To the extent that a change in the law, whether by statute or judicial
decision, permits greater indemnification than would be afforded currently under
the Certificate of Incorporation and this Agreement, it is the intent of the
parties hereto that each Director shall enjoy by this Agreement the greater
benefits so afforded by such change. No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right and
remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors, officers,
employees, or agents or fiduciaries of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person serves at the request of the Company, each Director shall be
covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director, officer,
employee or agent under such policy or policies.
(c) In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
or recovery of a Director, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
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(d) The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable hereunder if and to the
extent that a Director has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.
11. EXCEPTION TO RIGHT OF INDEMNIFICATION. Notwithstanding any other
provision of this Agreement, a Director shall not be entitled to indemnification
under this Agreement with respect to any Proceeding brought by him, or any claim
therein, unless (a) the bringing of such Proceeding or making of such claim
shall have been approved by the Board of Directors or (b) such Proceeding is
being brought by such Director to assert his rights under this Agreement.
12. DURATION OF AGREEMENT. All agreements and obligations of the
Company contained herein shall continue during the period a Director is serving
as a member of the Special Committee or as an officer or director of the Company
(or is or was serving at the request of the Company as a director, officer
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise) and shall continue thereafter so long as such Director shall
be subject to any Proceeding (or any proceeding commenced under Section 8
hereof) by reason of his Corporate Status, whether or not he is acting or
serving in any such capacity at the time any liability or expense is incurred
for which indemnification can be provided under this Agreement. This Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), assigns, spouses,
heirs, executors and personal and legal representatives. This Agreement shall
continue in effect regardless of whether a Director continues to serve as a
member of the Special Committee or as an officer or director of the Company or
any other enterprise at the Company's request.
13. SECURITY. To the extent requested by a Director and approved by
the Board of Directors, the Company may at any time and from time to time
provide security to a Director for the Company's obligations hereunder through
an irrevocable bank line of credit, funded trust or other collateral. Any such
security, once provided to a Director, may not be revoked or released without
the prior written consent of such Director.
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14. ENFORCEMENT.
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on it hereby in
order to induce the Director to serve as a member of the Special Committee, and
the Company acknowledges that such Director is relying upon this Agreement in
serving as a member of the Special Committee.
(b) This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral, written and implied, between the
parties hereto with respect to the subject matter hereof
15. DEFINITIONS. For purposes of this Agreement:
(a) "Corporate Status" describes the status of a person who is
or was a member of the Special Committee or was otherwise a director of the
Company.
(b) "Disinterested Director" means a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by a Director.
(c) "Enterprise" shall mean the Company and any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise of which a Director is or was serving at the express written request
of the Company as a director, officer, employee, agent or fiduciary.
(d) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, participating, or being or preparing to
be a witness in a Proceeding.
(e) "Independent Counsel" means a law firm, or a member of a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to represent: (i)
the Company or any Director in any matter material to either such party
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(other than with respect to matters concerning any such Director under this
Agreement), or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term "Independent
Counsel" shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or any Director in an action to determine such
Director's rights under this Agreement. The Company agrees to pay the reasonable
fees of the Independent Counsel referred to above and to fully indemnify such
counsel against any and all Expenses, claims, liabilities and damages arising
out of or relating to this Agreement or its engagement pursuant hereto.
(f) "Proceeding" includes any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened
or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in which
a Director was, is or will be involved as a party or otherwise, by reason of the
fact that such Director is or was a member of the Special Committee or a
director of the Company, by reason of any action taken by him or of any inaction
on his part while acting as a member of the Special Committee, or by reason of
the fact that he is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise; in each case whether or not he is acting or serving
in any such capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement; and excluding one
initiated by a Director pursuant to Section 8 of this Agreement to enforce his
rights under this Agreement.
16. SEVERABILITY. If any provision or provisions of this Agreement
shall be held by a court of competent jurisdiction to be invalid, void, illegal
or otherwise unenforceable for any reason whatsoever: (a) the validity, legality
and enforceability of the remaining provisions of this Agreement (including
without limitation, each portion of any section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law; and
(b)
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to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested thereby.
17. MODIFICATION AND WAIVER. No supplement, modification,
termination or amendment of this Agreement shall be binding unless executed in
writing by the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.
18. NOTICE BY DIRECTORS. Each Director agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification covered hereunder. The failure
to so notify the company shall not relieve the Company of any obligation which
it may have to such Director under this Agreement or otherwise.
19. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by and receipted for by the party to whom said notice or other
communication shall have been directed or if (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
(a) If to ▇▇. ▇▇▇▇▇, to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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(b) If to ▇▇. ▇▇▇▇▇▇▇, to:
▇▇▇▇ ▇▇▇▇▇▇▇
J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(c) If to the Company, to:
International Specialty Products Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Senior Vice President, General
Counsel and Secretary
or to such other address as may have been furnished to the Directors by the
Company or to the Company by a Director, as the case may be.
20. 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 one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
21. HEADINGS. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
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22. GOVERNING LAW. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without application of the conflict of laws principles
thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
INTERNATIONAL SPECIALTY PRODUCTS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
S.V.P. and G.C.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
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