exv10w63



 





EXHIBIT 10.63



INDEMNIFICATION AGREEMENT


     
This Indemnification Agreement (this
“Agreement”), dated as of December 9, 2002, is
made by and between JPS Industries, Inc., a Delaware corporation
(the “Company”),
and                     (“Indemnitee”).




RECITALS



     
A. It is essential to the Company to retain
and attract as directors and officers the most capable persons
available.



     
B. Indemnitee is a director and/or officer
of the Company.



     
C. Both the Company and Indemnitee recognize
the increased risk of litigation and other claims being asserted
against directors and officers of companies in today’s
environment.



     
D. The Company’s certificate of
incorporation (the “Certificate”) and by-laws (the
“By-laws”) provide that the Company will indemnify its
directors and officers to the fullest extent permitted by law
and will advance expenses in connection therewith, and
Indemnitee’s willingness to serve as a director and/or
officer of the Company is based in part on Indemnitee’s
reliance on such provisions.



     
E. In recognition of Indemnitee’s need
for substantial protection against personal liability in order
to enhance Indemnitee’s continued service to the Company in
an effective manner, and Indemnitee’s reliance on the
aforesaid provisions of the Certificate and By-laws, and in part
to provide Indemnitee with specific contractual assurance that
the protection promised by such provisions will be available to
Indemnitee (regardless of, among other things, any amendment to
or revocation of such provisions or any change in the
composition of the Company’s Board of Directors or any
acquisition or business combination transaction relating to the
Company), the Company wishes to provide in this Agreement for
the indemnification of and the advancement of expenses to
Indemnitee as set forth in this Agreement, and, to the extent
insurance is maintained, for the continued coverage of
Indemnitee under the Company’s directors’ and
officers’ liability insurance policies.




AGREEMENTS



     
NOW, THEREFORE, in consideration of the mutual
agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:



     
1. Certain Definitions.




		
	 	     
    (a) “Claim” means any threatened,
    pending or completed action, suit or proceeding, or inquiry or
    investigation, whether instituted, made or conducted by the
    Company or any other party, whether civil, criminal,
    administrative, investigative or other.
    
	 
	 	     
    (b) “Expenses” includes
    attorneys’ fees, judgments, fines or penalties, amounts
    paid in settlement and all other costs, expenses and obligations
    reasonably incurred or suffered in
    









 

		
	 	
    connection with investigating, defending, being a
    witness in or participating in (including on appeal), or
    preparing to defend, be a witness in or participate in, any
    Claim relating to any Indemnifiable Event.
    





		
	 	     
    (c) “Indemnifiable Event” means
    any actual or asserted event or occurrence related to the fact
    that Indemnitee is or was a director or officer of the Company
    or anything done or not done by Indemnitee in any such capacity.
    




     
2. Basic Indemnification Arrangement.
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 participant in, a Claim by reason of (or
arising in whole or in part out of) an Indemnifiable Event, the
Company will indemnify Indemnitee to the fullest extent
permitted by law as soon as practicable but in any event no
later than 30 calendar days after written demand is presented to
the Company, against any and all Expenses (including all
interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses) of such Claims.
Notwithstanding anything in this Agreement to the contrary,
Indemnitee will not be entitled to indemnification pursuant to
this Agreement in connection with any Claim initiated by
Indemnitee against the Company or any director or officer of the
Company unless the Company has joined in or consented to the
initiation of such Claim; provided, however, Company consent
will not be required with respect to any claim initiated by the
Indemnitee against the Company arising out of, or in connection
with, the enforcement of, or the alleged breach by the Company
of, this Agreement. If so requested by Indemnitee, the Company
will advance (within twenty (20) calendar days of such request)
any and all Expenses to Indemnitee; provided, however, if the
Delaware General Corporation Law (the “DGCL”) so
requires, an advancement of Expenses incurred by Indemnitee will
be made only upon delivery to the Company of an undertaking (an
“Undertaking”), by or on behalf of Indemnitee, to
repay all amounts so advanced if it is ultimately determined by
final judicial decision from which there is no further right to
appeal (a “Final Adjudication”) that Indemnitee is not
entitled to be indemnified for such expenses under this
Section 2 or otherwise.



     
3. Indemnification Procedures. The
procedures to be followed with respect to providing
indemnification to the Indemnitee under the terms of this
Agreement will be consistent with those procedures set forth in
Article VIII of the By-laws of the Company.



     
4. No Presumption. For purposes of
this Agreement, the termination of any claim, action, suit or
proceeding upon a plea of nolo contendre or its equivalent will
not create a presumption that the Indemnitee did not meet any
particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not
permitted by applicable law.



     
5. Non-Exclusivity, Etc. The rights
of Indemnitee hereunder will be in addition to any other rights
Indemnitee may have under the Certificate, the By-laws or the
DGCL or otherwise; provided, however, that to the extent that
Indemnitee otherwise would have any greater right to
indemnification under any provision of the Certificate or
By-laws as in effect on the date hereof, Indemnitee will be
deemed to have such greater right hereunder; and provided
further that to the extent that any change is made to the DGCL
(whether by legislative action or judicial decision), the
Certificate and/or the By-laws which permits any greater right to



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indemnification than that provided under this
Agreement as of the date hereof, Indemnitee will be deemed to
have such greater right hereunder. The Company will not adopt
any amendment to the Certificate or the By-laws the effect of
which would be to deny, diminish or encumber Indemnitee’s
right to indemnification under the Certificate, the By-laws or
the DGCL or otherwise as applied to any act or failure to act
occurring in whole or in part prior to the date upon which the
amendment was approved by the Company’s Board of Directors
and/or its stockholders, as the case may be.



     
6. Liability Insurance and Funding.
To the extent the Company maintains an insurance policy or
policies providing directors’ and officers’ liability
insurance, Indemnitee will 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. The Company may, but will not be required to, create a
trust fund, grant a security interest or use other means
(including without limitation a letter of credit) to ensure the
payment of such amounts as may be necessary to satisfy its
obligations to indemnify and advance expenses pursuant to this
Agreement.



     
7. Subrogation. In the event of
payment under this Agreement, the Company will be subrogated to
the extent of such payment to all of the related rights of
recovery of Indemnitee against other persons or entities. The
Indemnitee will execute all papers reasonably required and will
do everything that may be reasonably necessary to secure such
rights and enable the Company effectively to bring suit to
enforce such rights (all of Indemnitee’s reasonably costs
and expenses, including attorneys’ fees and disbursements,
to be reimbursed by or, at the option of Indemnitee, advanced by
the Company).



     
8. No Duplication of Payments. The
Company will not be liable under this Agreement to make any
payment in connection with any claim made against Indemnitee to
the extent Indemnitee has otherwise actually received payment
(under any insurance policy, the Certificate or the By-laws or
otherwise) of the amounts otherwise indemnifiable hereunder.



     
9. Joint Defense. Notwithstanding
anything to the contrary herein contained, if
(a) Indemnitee elects to retain counsel in connection with
any Claim in respect of which indemnification may be sought by
Indemnitee against the Company pursuant to this Agreement and
(b) any other director or officer of the Company may also
be subject to liability arising out of such Claim and in
connection with such Claim may seek indemnification against the
Company pursuant to an agreement similar to this Agreement,
Indemnitee, together with such other persons, will employ
counsel to represent jointly Indemnitee and such other persons
unless the employment of separate counsel shall have been
authorized in writing by the Board of Directors of the Company
in connection with the defense of such action or the Indemnitee
shall have reasonably concluded and delivered to the Board of
Directors a written request setting forth in reasonable detail
the basis for the determination that such Indemnitee has
available to its defenses which are inconsistent with the
defenses available to any other party seeking indemnification
against the Company. In the event the Board of Directors of the
Company fails to act on such request within 30 calendar days
after receipt thereof by the Company, Indemnitee will be deemed
to be entitled to be represented by separate counsel in
connection with such Claim.



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10. Successors and Binding Agreement.




		
	 	     
    (a) The Company will require any successor
    (whether by purchase, merger, consolidation or reorganization),
    by agreement expressly to assume and agree to perform this
    Agreement in the same manner and to the same extent the Company
    would be required to perform if no such succession had taken
    place. This Agreement will be binding upon and inure to the
    benefit of the Company and any successor to the Company, (and
    such successor will thereafter be deemed the “Company”
    for purposes of this Agreement), but will not otherwise be
    assignable, transferable or delegatable by the Company.
    
	 
	 	     
    (b) This Agreement will inure to the benefit
    of and be enforceable by the Indemnitee’s personal or legal
    representatives, executors, administrators, successors, heirs,
    distributees and legatees.
    
	 
	 	     
    (c) This Agreement is personal in nature and
    neither of the parties hereto will, without the consent of the
    other, assign, transfer or delegate this Agreement or any rights
    or obligations hereunder except as expressly provided in
    Sections 10(a) and 10(b). Without limiting the generality
    or effect of the foregoing, Indemnitee’s right to receive
    payments hereunder will not be assignable, transferable or
    delegatable, whether by pledge, creation of a security interest
    or otherwise, other than by a transfer by the Indemnitee’s
    will or by the laws of descent and distribution and, in the
    event of any attempted assignment or transfer contrary to this
    Section 10(c), the Company will have no liability to pay
    any amount so attempted to be assigned, transferred or delegated.
    




     
11. Notices. For all purposes of this
Agreement, all communications, including without limitation
notices, consents, requests or approvals, required or permitted
to be given hereunder will be in writing and will be deemed to
have been duly given when hand delivered or dispatched by
electronic facsimile transmission (with receipt thereof orally
confirmed), or five calendar days after having been mailed by
United States registered or certified mail, return receipt
requested, postage prepaid, or one business day after having
been sent for next-day delivery by a nationally recognized
overnight courier service, addressed to the Company (to the
attention of the Secretary of the Company) at its principal
executive office and to the Indemnitee at the Indemnitee’s
principal residence as shown in the Company’s most current
records, or to such other address as any party may have
furnished to the other in writing and in accordance herewith,
except that notices of changes of address will be effective only
upon receipt.



     
12. Governing Law. The validity,
interpretation, construction and performance of this Agreement
will be governed by and construed in accordance with the
substantive laws of the State of Delaware, without giving effect
to the principles of conflict of laws of such State.



     
13. Validity. If any provision of
this Agreement or the application of any provision hereof to any
person or circumstance is held invalid, unenforceable or
otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or
circumstance will not be affected, and the provision so held to
be invalid, unenforceable or otherwise illegal will be reformed
to the extent (and only to the extent) necessary to make it
enforceable, valid or legal.



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14. Miscellaneous.     No
provision of this Agreement may be waived, modified or
discharged unless such waiver, modification or discharge is
agreed to in writing signed by Indemnitee and the Company. No
waiver by either party hereto at any time of any breach by the
other party hereto or compliance with any condition or provision
of this Agreement to be performed by such other party will be
deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, expressed or
implied, with respect to the subject matter hereof have been
made by either party which are not set forth expressly in this
Agreement. References to Sections are to references to Sections
of this Agreement.



     
15. Counterparts.     This
Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original but all of which together
will constitute one and the same agreement.



     
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first above written.




		
	 	
    JPS INDUSTRIES, INC.,
    
	 	
    a Delaware corporation
    





			
	 	By: 	
    /s/ Michael L. Fulbright
    



		
	 	
    

	 	
    Name: Michael L. Fulbright
    
	 	
    Title: Chairman, President & C.E.O.
    
	 
	 	
    /s/
    
	 	
    

	 	
    [name]
    




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    Note:
    

    	 	
    This Indemnification Agreement was executed
    between the Company and the following officers and/or directors:
    





	 	 	 
	
    
    Robert J. Capozzi,
    

    	 	
    Director
    
	
    
    Nicholas P. DiPaolo,
    

    	 	
    Director
    
	
    
    Michael L. Fulbright,
    

    	 	
    Director, Chairman of the Board, President and
    Chief Executive Officer
    
	
    
    John M. Sullivan, Jr.,
    

    	 	
    Director
    
	
    
    Charles R. Tutterow,
    

    	 	
    Director, Executive Vice President, Chief
    Financial Officer and Secretary
    
	
    
    Monnie L. Broome
    

    	 	
    Vice President — Human Resources of JPS
    Industries, Inc.
    
	
    
    W. Ellis Jackson
    

    	 	
    Treasurer and Assistant Secretary
    
	
    
    Thomas J. Vinci
    

    	 	
    President, Stevens Roofing
    
	
    
    M. Gary Wallace
    

    	 	
    President, JPS Glass Division
    
	
    
    Richard W. Zimmer
    

    	 	
    President, Stevens Urethane
    




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