INDEMNIFICATION§17.115
September 199517-187A
EXHIBIT C
INDEMNIFICATION AGREEMENT dated as of , 19 ,
between WITCO CORPORATION, a Delaware corporation (the “Company”), and (“Indemnitee”).
It is essential to the Company to retain and attract as directors and officers the most capable persons
available. It is becoming increasingly more difficult for companies to attract the most qualified and experienced
people to serve as directors and officers because of the tendency in the United St ates of increasing litigation and
other challenges by stockholders and others against directors and officers of companies. In rec ognition of
Indemnitee’s need for substantial protection against personal liability in order to enha nce Indemnitee’s
continued and effective service to the Company, and in order to induce Indemnitee t o provide such services to
the Company as a director or officer, the Company wishes to provide in this Agreement for the indemification
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, whether or not insurance is maintained to provide coverage for
Indemnitee.
NOW THEREFORE , in consideration of the foregoing and of Indemnitee’s continued service to the
Company and intending to be legally bound hereby, the parties agree as follows:
1.Certain Definitions. Whenever used in this Agreement, the following words and phrases shall
have the following meanings:
“Board” shall mean the Board of Directors of the Company.
“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 Com pany is or
becomes the “Beneficial Owner” (as defined in Rule 13d-3 under said Act), directly or i ndirectly, of
securities of the Company representing 20% or more of the total voting power represented by the
Company’s then outstanding Voting Securities (a “20% Interest”), (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute the Board and a ny new
director whose election by the Board or nomination for election by the Company’s stockholders wa s
approved by a vote of at least two-thirds ( ) of the directors then still in office who ei ther were
3
2
directors at the beginning of the period or whose election or nomination for election wa
s previously
so approved, cease for any reason to constitute a majority thereof, (iii) the stockholders of the
Company approve a merger or consolidation of the Company with any other corporation, other than
a merger or consolidation that 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 80% of the total voti ng power
represented by the Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (iv) the stockholders of the Company a pprove a
plan of complete liquidation of the Company or an agreement for the sale or dispositi on by the
Company (in one transaction or a series of transactions) of all or substantially all of the Company’s
assets.
“Expenses” shall mean any expense, liability or loss, including attorneys’ fees, judgments,
fines, ERISA excise taxes and penalties, amounts paid or to be paid in settleme nt, any interest,
assessments, or other charges imposed thereon, and any federal, state, local, or foreign ta xes
imposed as a result of the actual or deemed receipt of any payments under this Agree ment, paid or
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17-187B © 1995 Jefren Publishing Company, Inc.
incurred in connection with investigating, defending, being a witness in, or participating in
(including on appeal), or preparing for any of the foregoing, any Proceeding relating to any
Indemnifiable Event.
INDEMNIFICATION§17.115
September 199517-187C
“Indemnifiable Event” shall mean any event or occurrence that takes place either prior to or
after the execution of this Agreement, related to the fact that Indemnitee i s or was a director or an
officer of the Company, or while a director or officer is or was serving at the request of t he Company
as a director, officer, employee, trustee, agent, or fiduciary of another foreign or domestic
corporation, partnership, joint venture, employee benefit plan, trust, or other enterprise, or was a
director, officer, employee, or agent of a foreign or domestic corporation that was a predec essor
corporation of the Company or of another enterprise at the request of such predecessor corporation,
or related to anything done or not done by Indemnitee in any such capacity, whether or not t he basis
of the Proceeding is alleged action in an official capacity as a director, offic er, employee, or agent or
in any other capacity while serving as a director, officer, employee, or agent of the C ompany, as
described above.
“Independent Counsel” shall mean the person or body appointed in connection with Section 3.
“Proceeding” shall mean any threatened, pending, or completed action, suit, or proceeding
(including an action by or in the right of the Company) or any inquiry. hearing, or investigation,
whether conducted by the Company, a stockholder or bond holder of the Company, a governmental
body, or any other party, that Indemnitee in good faith believes might lead to the insti tution of any
such action, suit, or proceeding. whether civil. criminal, administrative, investigative, or other.
“Reviewing Party” shall mean the person or body appointed in accordance with Section 3.
“Voting Securities” shall mean any securities of the Company that vote generally in the
election of directors.
2. Agreement to Indemnify.
(a) General Agreement. 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 participa nt in. a Proceeding by
reason of (or arising out of) an Indemnifiable Event, the Company shall indemnify Indemnitee from and
against any and all Expenses to the fullest extent permitted by law applicabl e to the Indemnifiable Event,
or as the same may exist currently or may hereafter be amended or interpreted (but in the case of any such
subsequent amendments or interpretations, only to the extent that such amendments or interpre tations
permit the Company to provide broader indemnification rights than were permitted prior the reto). The
parties hereto intend that this Agreement shall provide for indemnification in exce ss of that expressly
permitted by statute, including, without limitation, any indemnification provided by t he Company’s
Certificate of Incorporation, its By-laws, vote of its stockholders or disinterested directors, or applicable
law.
(b)Initiation of Proceeding. Notwithstanding anything in this Agreement to the contrary,
Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any
Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless
(i) the Company has joined in or the Board has consented to the initiation of such Procee ding; (ii) the
Proceeding is one to enforce indemnification rights under Section 5 hereof; or (iii) the Proc eeding is
instituted after a Change in Control (other than a Change in Control approved by a m ajority of the
directors on the Board who were directors immediately prior to such Change in Control) and Independent
Counsel has approved its initiation.
(c)Expense Advances. If so requested by Indemnitee, the Company shall advance (within ten
business days of such request) any and all Expenses to Indemnitee (an “Expense Advance”); provide d
that, if and to the extent the Reviewing Party determines that Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who
hereby agrees to reimburse the Company) for all such amounts theretofore paid in connect ion with the
Proceeding then in question. If Indemnitee has commenced or commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee should be indemnifi ed under applicable
law, as provided in Section 4, any determination made by the Reviewing Party tha t Indemnitee would not
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17-187D © 1995 Jefren Publishing Company, Inc.
be permitted to be indemnified under applicable law shall not be binding and Indemni tee shall not be
required to
INDEMNIFICATION§17.115
September 199517-187E
reimburse the Company for any Expense Advance until a final judicial determination is made with respect
thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Inde mnitee’s
obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shal l be
charged thereon.
(d)Mandatory Indemnification. Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee has been successful on the merits in defense of any Proceedi ng relating in whole or
in part to an Indemnifiable Event or in defense of any issue or matter therein, Indemnite e shall be
indemnified against all Expenses incurred in connection therewith.
(e)Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of Expenses, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to whic h Indemnitee
is entitled.
(f)Prohibited Indemnification. No indemnification pursuant to this Agreement shall be paid by
the Company on account of any Proceeding in which judgment is rendered against Indemnitee for an
account of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to
the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provi sions
of any federal, state, or local laws, or in the event Indemnitee is found in the appl icable Proceeding to
have committed gross negligence or reckless disregard of his or her fiduciary obligations under De laware
law.
3.Reviewing Party.
Prior to any Change in Control, the Reviewing Party shall be any appropriate person or body
consisting of a member or members of the Board or any other person or body appointed by the Board who
is not a party to the Proceeding at issue; after a Change in Control, the Reviewi ng Party shall be the
Independent Counsel referred to below. With respect to all matters arising after a Change in Control (other
than a Change in Control approved by a majority of directors on the Board who were directors
immediately prior to such Change in Control) concerning the rights of Indemnitee to indemnity payments
and Expense Advances under this Agreement or any other agreement or under applicable law or the
Company’s Articles of Incorporation or By-laws now or hereafter in effect relating to indemnifi cation for
Indemnifiable Events, the Company shall seek advice only from Independent Counsel selecte d by
Indemnitee and approved by the Company (which approval shall not be unreasonably withheld), and who
has not otherwise performed services for the Company or the Indemnitee (other than in connect ion with
indemnification matters) within the last five years. The 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 Indemnitee in an action to dete rmine Indemnitee’s rights
under this Agreement. Such counsel, among other things, shall render its written opinion to the Company
and Indemnitee as to whether and to what extent the Indemnitee should be permitted to be indemnified
under applicable law. The Company agrees to pay the reasonable fees of the Independent Counsel and to
indemnify fully such counsel against any and all expenses (including attorneys’ fees), clai ms, liabilities,
loss and damages arising out of or relating to this Agreement or the engagement of Independe nt Counsel
pursuant hereto.
4.Indemnification Process and Appeal.
(a) Indemnification Payment. Indemnitee shall be entitled to indemnification of Expenses, and
shall receive payment thereof, from the Company in accordance with this Agreeme nt as soon as
practicable after Indemnitee has made written demand on the Company for indemnific ation, unless the
Reviewing Party has given a written opinion to the Company that Indemnitee is not entitled to
indemnification under applicable law.
(b) Suit to Enforce Rights. Regardless of any action by the Reviewing Party, if Indemnitee has
not received full indemnification within thirty days after making a demand in acc ordance with Section
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17-187F © 1995 Jefren Publishing Company, Inc.
4(a), Indemnitee shall have the right to enforce its indemnification rights under this Agreement
commencing litigation in any court in the State of [New York] having subject matter j urisdiction thereof
and in which venue is proper seeking an initial determination by the court or
INDEMNIFICATION§17.115
September 199517-187G
challenging any determination by the Reviewing Party or any aspect thereof. The Company hereby
consents to service of process and to appear in any such proceeding. Any determination by the Reviewing
Party not challenged by the Indemnitee shall be binding on the Company and Indemnitee. T he remedy
provided for in this Section 4 shall be in addition to any other remedies available to Indemnitee in law or
equity.
(c)Defense to Indemnification, Burden of Proof, and Presumptions. It shall be a defense to any
action brought by Indemnitee against the Company to enforce this Agreement (other than an action
brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of i ts final
disposition that it is not permissible under applicable law or under this Agreement for the Company to
indemnify Indemnitee for the amount claimed. In connection with any such action or any de termination by
the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemni fied hereunder, the
burden of proving such a defense or determination shall be on the Company. Neither the failure of the
Reviewing Party or the Company (including its Board, independent legal counsel, or its stoc kholders) to
have made a determination prior to the commencement of such action by Indemnit ee that indemnification
of the claimant is proper under the circumstances because he has met the standa rd of conduct set forth in
applicable law, nor an actual determination by the Reviewing Party or Company (incl uding its Board,
independent legal counsel, or its stockholders) that the Indemnitee had not met such appl icable standard of
conduct, shall be a defense to the action or create a presumption that the Indemni tee has not met the
applicable standard of conduct. For purposes of this Agreement, the termination of any claim, action, suit,
or proceeding, by judgment, order, settlement (whether with or without court approval), convicti on, or
upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not
meet any particular standard of conduct or have any particular belief or that a c ourt has determined that
indemnification is not permitted by applicable law.
5.Indemnification for Expenses Incurred in Enforcing Rights.
The Company shall indemnify Indemnitee against any and all Expenses that are incurre d by
Indemnitee in connection with any action brought by Indemnitee for (i) indemnification of Expenses by
the Company under this Agreement or any other agreement or under applicable law or the Com pany’s
Articles of Incorporation or By-laws now or hereafter in effect relating to indemnificati on for
Indemnifiable Events, and/or (ii) recovery under directors’ and officers’ liability insuranc e policies
maintained by the Company, but only in the event that Indemnitee ultimately is determined to be entitled
to such indemnification or insurance recovery, as the case may be. In addition, the C ompany shall, if so
requested by Indemnitee, advance the foregoing Expenses to Indemnitee, subject to and in a ccordance
with Section 2(c).
6.Notification and Defense of Proceeding.
(a) Notice. Promptly after receipt by Indemnitee of notice of the commencement of any
Proceeding, Indemnitee will, if a claim in respect thereof is to be made aga inst the Company under this
Agreement, notify the Company of the commencement thereof; but the omission so to noti fy the Company
will not relieve it from any liability that it may have to Indemnitee, except as provided in Secti on 6(c).
(b) Defense. With respect to any Proceeding as to which Indemnitee notifies the Company of the
commencement thereof, the Company will be entitled to participate in t he Proceeding at its own expense
and except as otherwise provided below, to the extent the Company so wishes, it may a ssume the defense
thereof with counsel reasonably satisfactory to Indemnitee. After notice from the Company t o Indemnitee
of its election to assume the defense of any Proceeding, the Company will not be li able to Indemnitee
under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee under this
Agreement except as otherwise provided below. Indemnitee shall have the right to empl oy his own
counsel in such Proceeding, but all Expenses related thereto incurred after notice from the Company of its
assumption of the defense shall be at Indemnitee’s expense unless: (i) the employment of counsel by
Indemnitee has been authorized by the Company, (ii) Indemnitee has reasonably determined that there
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17-187H © 1995 Jefren Publishing Company, Inc.
may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and
such determination has been
INDEMNIFICATION§17.115
September 1995 17-187I
affirmed by any then existing Independent Counsel, (iii) after a Change in Control (other than a Change in
Control approved by a majority of the directors on the Board who were directors immediatel y prior to
such Change in Control), the employment of counsel by Indemnitee has been approved by the
Independent Counsel, or (iv) the Company shall not in fact have employed counsel to assume t he defense
of such Proceeding, in each of which case all Expenses of the Proceeding shall be borne by the Company.
The Company shall not be entitled to assume the defense of any Proceeding brought by or on beha lf of the
Company or as to which Indemnitee shall have made the determination provided for in (ii) above.
(c)Settlement of Claims. The Company shall not be liable to indemnify Indemnitee under this
Agreement or otherwise for any amounts paid in settlement of any Proceeding effected wi thout the
Company’s written consent, provided, however, that if a Change in Control has occurred (other t han a
Change in Control approved by a majority of the directors on the Board who were directors im mediately
prior to such Change in Control), the Company shall be liable for indemnification of Indemni tee for
amounts paid in settlement if the Independent Counsel has approved the settlement. The Company shall
not settle any Proceeding in any manner that would impose any penalty or limitati on on Indemnitee
without Indemnitee’s written consent. Neither the Company nor Indemnitee will unreasonably withhold
their consent to any proposed settlement. The Company shall not be liable to inde mnify Indemnitee under
this Agreement with regard to any judicial award if the Company was not given a reasonable and timely
opportunity, at its expense, to participate in the defense of such action; the Compa ny’s liability hereunder
shall not be excused if participation in the Proceeding by the Company was barred by this Agreement.
7.Establishment of Trust.
In the event of a Change in Control (other than a Change in Control approved by a majority of the
directors on the Board who were directors immediately prior to such Change in Control) t he Company
shall, upon written request by Indemnitee,
create a Trust for the benefit of Indemnitee and from time to
time upon written request of Indemnitee shall fund the Trust in an amount sufficient t o satisfy any and all
Expenses reasonably anticipated at the time of each such request to be incurred i n connection with
investigating, preparing for, participating in, and/or defending any Proceeding relating to an Indemnifiable
Event. The amount or amounts to be deposited in the Trust pursuant to the foregoing funding obli gation
shall be determined by the Reviewing Party. The terms of the Trust shall provide that (i) the Trust shall
not be revoked or the principal thereof invaded, without the written consent of Indemnitee, (ii) the Trustee
shall advance, within ten business days of a request by Indemnitee, any and all Expenses t o Indemnitee
(and Indemnitee hereby agrees to reimburse the Trust under the same circumstances for whi ch Indemnitee
would be required to reimburse the Company under Section 2(c) of this Agreement), (iii) the Trust shall
continue to be funded by the Company in accordance with the funding obligation set forth above , (iv) the
Trustee shall promptly pay to Indemnitee all amounts for which Indemnitee shall be entitled to
indemnification pursuant to this Agreement or otherwise, and (v) all unexpended funds in the T rust shall
revert to the Company upon a final determination by the Reviewing Party or a court of c ompetent
jurisdiction, as the case may be, that Indemnitee has been fully indemnified under the terms of this
Agreement. The Trustee shall be chosen by Indemnitee. Nothing in this Section 7 shall relieve the
Company of any of its obligations under this Agreement. All income earned on the assets held in the Trust
shall be reported as income by the Company for federal, state, local, and foreign tax purposes. The
Company shall pay all costs of establishing and maintaining the Trust, and shall indem nify the Trustee
against any and all expenses (including attorneys’ fees), claims, liabilities, loss, and damages arising out
of or relating to this Agreement or the establishment and maintenance of the Trust.
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17-187J © 1995 Jefren Publishing Company, Inc.
8.Non-Exclusivity.
The rights of Indemnitee hereunder shall be in addition to any other rights Indemnitee may have
under the Company’s Certificate of Incorporation, By-laws, applicable law, or otherwise. To the extent
that a change in applicable law (whether by statute or judicial decision) permi ts greater indemnification by
agreement than would be afforded currently under the Company’s Certificate of Incorporation, By-la ws,
applicable law, or this Agreement, it is the intent of the parties that Indemni tee enjoy by this Agreement
the greater benefits so afforded by such change.
9.Liability Insurance.
To the extent the Company maintains an insurance policy or policies providing direc tors’ and
officers’ liability insurance, Indemnitee 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 Company director or officer.
10.Period of Limitations.
No legal action shall be brought and no cause of action shall be asserted by or on behalf of the
Company or any affiliate of the Company against Indemnitee, Indemnitee’s spouse, heirs, exe cutors, or
personal or legal representatives after the expiration of two years from the date of ac crual of such cause of
action, or such longer period as may be required by state law under the circumstances. Any claim or cause
of action of the Company or its affiliates shall be extinguished and deemed rele ased unless asserted by the
timely filing of a legal action within such period: provided, however, that if any shorter period of
limitations is otherwise applicable to any such cause of action, the shorter period shall govern.
11.Retroactivity.
This Agreement shall be deemed to have been in effect during all periods that Indem nitee was an
officer or director of the Company, regardless of the date of this Agreement.
12.Amendment of this Agreement.
No supplement, modification, or amendment of this Agreement shall be binding unless executed in
writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shal l be
binding unless in the form of a writing signed by the party against whom enforcement of the wai ver is
sought, and no such waiver shall operate as a waiver of any other provisions hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver. Except as specifical ly provided herein, no
failure to exercise or any delay in exercising any right or remedy hereunder shall c onstitute a waiver
thereof.
13.Subrogation.
In the event of payment under this Agreement, the Company shall be subrogated to the ext ent of
such payment to all of the rights of recovery of Indemnitee, who shall execute all pape rs reasonably
required and shall do everything that may be reasonably necessary to secure such rights, i ncluding the
execution of such documents necessary to enable the Company effectively to bring sui t to enforce such
rights.
14.No Duplication of Payments.
The Company shall not be liable under this Agreement to make any payment in conne ction with any
claim made against Indemnitee to the extent Indemnitee has otherwise receive d payment (under any
insurance policy, By-law, or otherwise) of the amounts otherwise indemnifiable hereunder.
15.Binding Effect.
INDEMNIFICATION§17.115
September 199517-187K
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, m erger,
consolidation, or otherwise to all or substantially all of the business and/or assets of the Company),
assigns, spouses, heirs, and personal and legal representatives. The Company
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17-187L © 1995 Jefren Publishing Company, Inc.
shall require and cause any successor (whether direct or indirect by purchase, merger, consolidati on, or
otherwise) to all, substantially all, or a substantial part, of the business and/or asset s of the Company, by
written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the Com pany would be required
to perform if no such succession had taken place. The indemnification provided under this Agreeme nt
shall continue as to Indemnitee for any action taken or not taken while serving in an indemnified capacity
pertaining to an Indemnifiable Event even though he may have ceased to serve in such c apacity at the time
of any Proceeding.
16.Severability.
If any provision (or portion thereof) of this Agreement shall be held by a court of competent
jurisdiction to be invalid, void, or otherwise unenforceable, the remaining provisions shall rem ain
enforceable to the fullest extent permitted by law. Furthermore, to the fullest e xtent possible, the
provisions of this Agreement (including, without limitation, each portion of this Agreement conta ining a
provision held to be invalid, void, or otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested by the provision held
invalid, void, or unenforceable.
17.Governing Law.
This Agreement shall be governed by and construed and enforced in accordance with the laws of the
State of Delaware applicable to contracts made and to be performed in such Sta te without giving effect to
the principles of conflicts of laws.
18.Notices.
All notices, demands, and other communications required or permitted hereunder shall be made in
writing and shall be deemed to have been duly given if delivered by hand, against rec eipt, or mailed,
postage prepaid, certified or registered mail, return receipt requested, and addressed as follows:
COMPANY: WITCO CORPORATION
ATTENTION: Chairman of the Board
One American Lane
Greenwich, CT 06831
With copy to: WITCO CORPORATION
ATTENTION: General Counsel
One American Lane
Greenwich, CT 06831
INDEMNITEE: ________________________________________
______________________________________________________ ______________________________________________________
Notice of change of address shall be effective only when done in accordance with this Sec tion. All
notices complying with this Section shall be deemed to have been received on the earlier of the date of delivery
or on the third business day after mailing.
INDEMNIFICATION§17.115
September 199517-187M
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§17.115PROXY STATEMENTS: STRATEGY & FORMS
17-188 © 1995 Jefren Publishing Company, Inc.
IN W ITNESS WHEREOF , the parties hereto have executed this Agreement on and as of the
day and year first above written.
WITCO CORPORATION ,
By
..............................................................................
Name:
Title:
[INDEMNITEE]
By
..............................................................................
Name:
Title:
Witco Corporation 3/28/94
