exv10w1



 







Exhibit 10.1




DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT




          This Director and Officer Indemnification Agreement, dated as of ____________, 200___(this
“Agreement”), is made by and between GenCorp Inc., an Ohio corporation (the “Company”), and
____________(the “Indemnitee”), a director and/or officer of the Company.




RECITALS




          A. The Indemnitee is currently serving as a director and/or officer of the Company, and the
Company desires that the Indemnitee continue serving in such capacity. The Indemnitee is willing,
subject to certain conditions, including the execution and performance of this Agreement by the
Company, to continue serving in such capacity.




          B. In addition to the indemnification to which the Indemnitee is entitled under the Amended
Code of Regulations of the Company (the “Regulations”), the Company has obtained, at its sole
expense, insurance protecting the Company and its officers and directors, including the Indemnitee,
against certain losses arising out of any threatened, pending or completed action, suit, or
proceeding to which such persons may be made or are threatened to be made parties.




          NOW, THEREFORE, in order to induce the Indemnitee to serve or continue to serve in his current
capacity, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Indemnitee agree as follows:




     1. CONTINUED SERVICE




          The Indemnitee shall serve or continue to serve as a director and/or officer of the Company so
long as he is duly elected in accordance with the Regulations or until he resigns in writing or is
removed from office in accordance with applicable law.




     2. INITIAL INDEMNITY




          (a) The Company shall indemnify the Indemnitee if or when he is a party or is threatened to be
made a party to any threatened, pending or completed action, suit, proceeding or claim, whether
civil, criminal, administrative or investigative (other than an action by or in the right of the
Company), by reason of the fact that he is or was a director and/or officer of the Company or is or
was serving at the request of the Company as a director, trustee, officer, employee, member,
manager or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited
liability company, or a partnership, joint venture, trust or other enterprise, or by reason of any














 




action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or others; all such costs,
charges and expenses being herein jointly referred to as “Expenses”), judgments, fines and amounts
paid in settlement actually incurred by the Indemnitee in connection therewith, including any
appeal of or from any judgment or decision, (i) in the case of an Indemnitee that is a director of
the Company, unless it is proved by clear and convincing evidence in a court of competent
jurisdiction that the Indemnitee’s action or failure to act involved an act or omission undertaken
with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the
best interests of the Company and (ii) in the case of an Indemnitee that is an officer of the
Company but not a director of the Company, if the Indemnitee acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of the Company. In
addition, with respect to any criminal action or proceeding, indemnification hereunder shall be
made only if the Indemnitee had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, proceeding or claim by judgment, order, settlement or conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption
that the Indemnitee did not satisfy the foregoing applicable standard of conduct.




          (b) The Company shall indemnify the Indemnitee if or when he is a party or is threatened to be
made a party, to any threatened, pending or completed action, suit, proceeding or claim by or in
the right of the Company to procure a judgment in its favor, by reason of the fact that the
Indemnitee is or was a director and/or officer of the Company or is or was serving at the request
of the Company as a director, trustee, officer, employee, member, manager or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have
been taken or omitted in any such capacity, against any and all Expenses, judgments, fines and
amounts paid in settlement actually incurred by the Indemnitee in connection therewith, including
any appeal of or from any judgment or decision, (i) in the case of an Indemnitee that is a director
of the Company, unless it is proved by clear and convincing evidence in a court of competent
jurisdiction that the Indemnitee’s action or failure to act involved an act or omission undertaken
with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the
best interests of the Company and (ii) in the case of an Indemnitee that is an officer of the
Company but not a director of the Company, if the Indemnitee acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of the Company.
Notwithstanding the foregoing provisions of this Section 2(b), no indemnification pursuant to this
Section 2(b) shall be made (A) in the case of an Indemnitee that is an officer but not a director
of the Company, in respect of any claim, issue or matter as to which the Indemnitee is adjudged to
be liable for negligence or misconduct in the performance of his duty to the Company unless, and
only to the extent that, the court of common pleas or other court in which such action, suit,
proceeding or claim was brought determines, notwithstanding any adjudication of liability, that in
view of all the circumstances of the case the Indemnitee is fairly and reasonably entitled to
indemnity for such Expenses, judgments, fines and amounts paid in settlement as such court of




-2-









 




common pleas or other court shall deem proper, or (B) in the case of an Indemnitee that is a
director of the Company, in respect of any action, suit, proceeding or claim in which the only liability asserted against the Indemnitee is pursuant to Section 1701.95 of the Ohio
Revised Code (the “ORC”).




          (c) Any indemnification under Section 2(a) or 2(b) hereof (unless ordered by the court in
which such action, suit, proceeding or claim was brought) shall be made by the Company only upon a
determination relating to the specific case that indemnification of the Indemnitee is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or
2(b) hereof. Prior to a Change in Control (as defined in Section 5 hereof), such determination
shall be made (i) by the Board of Directors of the Company (the “Board”) by a majority vote or
consent of a quorum consisting of directors who were not and are not parties to or threatened with
such action, suit, proceeding or claim (“Disinterested Directors”) or (ii) if such a quorum of
Disinterested Directors is not available or if a majority of such quorum so directs, by Independent
Counsel in a written opinion to the Board (with a copy to the Indemnitee; provided,
however, that if the Indemnitee is no longer serving as a director of the Company or as an
officer of the Company at the time that such action, suit, proceeding or claim is initiated, then
such determination shall be made by Independent Counsel in a written opinion to the Board (with a
copy to the Indemnitee), unless the Indemnitee shall have elected in writing to have such
determination made by a majority vote or consent of a quorum of Disinterested Directors, in which
case such determination shall be made by such quorum of Disinterested Directors. Following a
Change in Control, such determination shall be made by Independent Counsel in a written opinion to
the Board (with a copy to Indemnitee), unless the Indemnitee shall have elected in writing to have
such determination made by a majority vote or consent of a quorum consisting of Disinterested
Directors, in which case such determination shall be made by such quorum of Disinterested
Directors. For purposes of this Agreement, the term “Independent Counsel” means nationally
recognized legal counsel designated for such purpose by the Indemnitee and reasonably acceptable to
a majority of the Continuing Directors (as defined in Section 5 hereof), even if less than a
quorum, which shall not be an attorney, or a firm having associated with it an attorney, who has
been retained by or who has performed services for (x) the Company, (y) any person who may be
indemnified in such action, suit, proceeding or claim, or (z) any holder of 5% or more of the
shares of any class of voting stock of the Company.




          (d) To the extent that the Indemnitee has been successful on the merits or otherwise,
including the dismissal of an action without prejudice, in defense of any action, suit, proceeding
or claim referred to in Section 2(a) or 2(b) hereof, or in defense of any claim, issue or matter
therein, he shall be indemnified against Expenses actually incurred by him in connection therewith.




          (e) Expenses actually incurred by the Indemnitee in defending any action, suit, proceeding or
claim referred to in Section 2(a) or 2(b) hereof, or in defense of any claim, issue or matter
therein, shall be paid by the Company as they are incurred




-3-









 




in advance of the final disposition of such action, suit, proceeding or claim under the procedure set forth in Section 4(b) hereof.




          (f) For purposes of this Agreement, references to “other enterprises” shall include employee
benefit plans; references to “fines” shall include any excise taxes assessed on the Indemnitee with
respect to any employee benefit plan; references to “serving at the request of the Company” shall
include any service as a director, officer, employee, member, manager or agent of the Company which
imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit
plan, its participants or beneficiaries; references to the masculine shall include the feminine;
references to the singular shall include the plural and vice versa; and the word including is used
by way of illustration only and not by way of limitation.




          (g) No amendment to the Amended Articles of Incorporation of the Company (the “Articles”) or
the Regulations may deny, diminish or encumber the Indemnitee’s rights to indemnity pursuant to the
Regulations, the ORC or any other applicable law as applied to any act or failure to act occurring
in whole or in part prior to the date (the “Effective Date”) upon which the amendment was approved
by the shareholders of the Company. In the event that the Company shall purport to adopt any
amendment to its Articles or Regulations or take any other action the effect of which is to deny,
diminish or encumber the Indemnitee’s rights to indemnity pursuant to the Articles, the
Regulations, the ORC or any such other law, such amendment shall apply only to acts or failures to
act occurring entirely after the Effective Date thereof.




     3. ADDITIONAL INDEMNIFICATION




          (a) Pursuant to Section 1701.13(E)(6) of the ORC, without limiting any right which the
Indemnitee may have pursuant to Section 2 hereof or any other provision of this Agreement or the
Articles, the Regulations, the ORC, any policy of insurance or otherwise, but subject to any
limitation on the maximum permissible indemnity which may exist under applicable law at the time of
any request for indemnity hereunder and subject to the following provisions of this Section 3, the
Company shall indemnify the Indemnitee against any amount which he is or becomes obligated to pay
relating to or arising out of any claim made against him because of any act, failure to act or
neglect or breach of duty, including any actual or alleged error, misstatement or misleading
statement, that he commits, suffers, permits or acquiesces in while acting in his capacity as a
director of the Company. The payments which the Company is obligated to make pursuant to this
Section 3 shall include any and all Expenses, judgments, fines and amounts paid in settlement,
actually incurred by the Indemnitee in connection therewith including any appeal of or from any
judgment or decision; provided, however, that the Company shall not be obligated
under this Section 3 to make any payment in connection with any claim against the Indemnitee:





     (i) to the extent of any fine or similar governmental imposition which the
Company is prohibited by applicable law from paying (as determined by final order of
a court of competent jurisdiction); or



-4-









 






     (ii) to the extent based upon or attributable to the Indemnitee having actually
realized a personal profit to which he was not legally entitled, including profit
(A) from the purchase and sale by the Indemnitee of equity securities of the Company which are recoverable by the Company
pursuant to Section 16(b) of the Securities Exchange Act of 1934 and (B) arising
from transactions in publicly traded securities of the Company which were effected
by the Indemnitee in violation of Section 10(b) of the Securities Exchange Act of
1934 or Rule 10b-5 promulgated thereunder.



          (b) A determination as to whether the Indemnitee shall be entitled to indemnification under
this Section 3 shall be made in accordance with Section 4(a) hereof. Expenses incurred by the
Indemnitee in defending any claim to which this Section 3 applies shall be paid by the Company as
they are actually and reasonably incurred in advance of the final disposition of such claim under
the procedure set forth in Section 4(b) hereof.




     4. CERTAIN PROCEDURES RELATING TO INDEMNIFICATION




          (a) For purposes of pursuing his rights to indemnification under Section 3 hereof, the
Indemnitee shall (i) submit to the Board a sworn statement of request for indemnification
substantially in the form of Exhibit 1 attached hereto and made a part hereof (the “Indemnification
Statement”) averring that he is entitled to indemnification hereunder and (ii) present to the
Company evidence in reasonable detail of all amounts for which indemnification is requested.
Submission of an Indemnification Statement to the Board shall create a presumption that the
Indemnitee is entitled to indemnification hereunder, and the Company shall, within 30 calendar days
after submission of the Indemnification Statement, make the payments requested in the
Indemnification Statement to or for the benefit of the Indemnitee, unless (A) within such
30-calendar-day period by the vote or consent of a majority of the Continuing Directors, even if
less than a quorum, shall determine that the Indemnitee is not entitled to indemnification under
Section 3 hereof, (B) such vote shall be based upon clear and convincing evidence sufficient to
rebut the foregoing presumption, and (C) the Company shall notify the Indemnitee within such period
of such vote, which notice shall disclose with particularity the evidence upon which the vote is
based. The foregoing notice shall be sworn to by each Continuing Director who participated in the
vote and voted to deny indemnification. The provisions of this Section 4(a) are intended to be
procedural only and shall not affect the right of Indemnitee to indemnification under Section 3
hereof so long as Indemnitee follows the prescribed procedure, and any determination by a majority
of the Continuing Directors that the Indemnitee is not entitled to indemnification and any failure
to make the payments requested in the Indemnification Statement shall be subject to de novo
judicial review by any court of competent jurisdiction.




          (b) For purposes of obtaining payments of Expenses in advance of final disposition pursuant to
Section 2(e) hereof or the last sentence of Section 3(b) hereof, the Indemnitee shall submit to the
Company a sworn request for advancement




-5-









 




of Expenses substantially in the form of Exhibit 2 attached hereto and made a part hereof (the “Undertaking”), averring that he has incurred or in good faith
expects to incur actual Expenses in defending an action, suit, proceeding or claim referred to in
Section 2(a) or 2(b) hereof or any claim referred to in Section 3 hereof, or pursuant to Section 10 hereof. Unless determined in a final order of a court of competent jurisdiction to
be prohibited from payment at the time of the Indemnitee’s act or omission at issue, or unless the
only liability asserted against the Indemnitee in the subject action, suit, proceeding or claim is
pursuant to ORC Section 1701.95, the Indemnitee shall be eligible to execute Part A of the
Undertaking by which he undertakes to: (i) (A) in the case of an Indemnitee that is a director of
the Company, repay such amount if it is proved by clear and convincing evidence in a court of
competent jurisdiction that the Indemnitee’s action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the Company or undertaken with reckless
disregard for the best interests of the Company and (B) in the case of an Indemnitee that is an
officer of the Company but not a director of the Company, (1) repay such amount if (x) with respect
to any action, suit, proceeding or claim (other than an action by or in the right of the Company)
brought against the Indemnitee by reason of the fact that the Indemnitee is or was an officer of
the Company for which the Indemnitee has received advancement of Expenses, it is determined that
the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Company or (y) with respect to any action, suit,
proceeding or claim brought against the Indemnitee by or in the right of the Company for which the
Indemnitee has received advancement of Expenses, the Indemnitee is adjudged to be liable for
negligence or for misconduct in the performance of his duty to the Company and the court has not
determined that Indemnitee is entitled to indemnification and (ii) reasonably cooperate, at the
Company’s sole cost and expense, with the Company concerning the action, suit, proceeding or claim.
In all cases, the Indemnitee shall be eligible to execute Part B of the Undertaking by which he
undertakes to repay such amount if it ultimately is determined by a final order of a court of
competent jurisdiction that he is not entitled to be indemnified by the Company under this
Agreement or otherwise. In the event that the Indemnitee is eligible to and does execute both Part
A and Part B of the Undertaking, the Expenses which are paid by the Company pursuant thereto shall
be required to be repaid by the Indemnitee only if he is required to do so under the terms of both
Part A and Part B of the Undertaking. Upon receipt of the Undertaking, the Company shall
thereafter promptly pay such Expenses of the Indemnitee as are noticed to the Company in reasonable
detail arising out of the matter described in the Undertaking. No security shall be required in
connection with any Undertaking.




     5. LIMITATION ON INDEMNITY



          Notwithstanding anything contained herein to the contrary, (a) the Company shall not be
required hereby to indemnify the Indemnitee with respect to any action, suit, proceeding or claim
that was initiated by the Indemnitee prior to a Change in Control, unless the initiation by the
Indemnitee of such action, suit, proceeding or claim shall have been approved in advance by the
vote or consent of the Continuing




-6-









 




Directors and (b) the Company shall not be required hereby to
indemnify the Indemnitee with respect to any action, suit, proceeding or claim that was initiated
by the Indemnitee following a Change in Control unless the initiation by the Indemnitee of such
action, suit, proceeding or claim was (i) to enforce any rights to indemnification arising hereunder but relates to any action, suit, proceeding or claim initiated by or on behalf of theCompany or any third party prior to a Change in Control, (ii) authorized by an agreement other
than this Agreement entered into prior to a Change in Control to which the Company is a party
whether heretofore or hereafter entered, or (iii) otherwise ordered by the court in which the suit
was brought. For purposes of this Agreement, the term “Continuing Director” means a director whose
election or nomination for election to the Board was approved by a majority of the members of the
Board in office at the time of such election or nomination (either by a specific vote or by
approval of the proxy statement of the Company in which such person is named as a nominee for
director, without objection to such nomination); provided, however, that an individual shall not be
a Continuing Director if such individual’s election or appointment to the Board occurs as a result
of an actual or threatened election contest (as described in Rule 14a-12(c) of the Securities
Exchange Act) with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than the Board. For purposes
of this Agreement, the term “Change in Control” means the earliest to occur of the following:





     (a) any “person” or “group” of related persons (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act) is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act), directly or indirectly,
of more than 50% of the total voting power of the outstanding capital stock of the Company
that is entitled generally to vote in the election of directors of the Company;




     (b) the first day on which a majority of the members of the Board are not Continuing
Directors;




     (c) the sale, lease, transfer, conveyance or other disposition, in one or a series of
related transactions, of all or substantially all of the assets of the Company and its
subsidiaries taken as a whole to any “person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act); or



     (d) the adoption by the stockholders of the Company of a plan or proposal for the
liquidation or dissolution of the Company.



     6. SUBROGATION; DUPLICATION OF PAYMENTS




          (a) In the event of payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers
required and shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to bring suit to enforce
such rights; provided,




-7-









 




however, that such subrogation shall be subject to the
Company executing an instrument in writing satisfactory to the Indemnitee in his discretion under
which the Company agrees to fully indemnify, defend and hold harmless the Indemnitee from any
Expense or other liability that may arise therein or therefrom.




          (b) The Company shall not be liable under this Agreement to make any payment in connection
with any claim made against Indemnitee to the extent Indemnitee has actually received payment
(under any insurance policy, the Regulations or otherwise) of the amounts otherwise payable
hereunder without any reservation of rights or other claim for potential disgorgement thereof, as
determined by the Indemnitee in good faith.




     7. DEFENSE OF CLAIMS



          The Company shall be entitled to participate in the defense of any threatened or pending
action, suit, proceeding or claim in respect of which the Indemnitee requests indemnification
hereunder or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee;
provided that if the Indemnitee believes, after consultation with counsel selected by the
Indemnitee, that (a) the use of counsel chosen by the Company to represent the Indemnitee would
present such counsel with an actual or potential conflict, (b) the named parties in any such
action, suit, proceeding or claim (including any impleaded parties) include both the Company and
the Indemnitee and the Indemnitee shall conclude that there may be one or more legal defenses
available to him that are different from or in addition to those available to the Company, (c) any
such representation by such counsel would be precluded under the applicable standards of
professional conduct then prevailing or (d) any such representation could be reasonably expected to
increase Indemnitee’s risk of liability, then the Indemnitee shall be entitled to retain separate
counsel (but not more than one law firm plus, if applicable, local counsel in respect of any
particular action, suit, proceeding or claim) at the Company’s expense. The Company shall not,
without the prior written consent of the Indemnitee, effect any settlement of any threatened or
pending action, suit, proceeding or claim to which the Indemnitee is, or could have been, a party
unless such settlement solely involves the payment of money and includes a complete and
unconditional release of the Indemnitee from all liability on any claims that are the subject
matter of such action, suit, proceeding or claim. The Indemnitee shall not unreasonably withhold
its consent to any proposed settlement; provided that the Indemnitee may withhold consent
to any settlement that does not provide a complete and unconditional release of the Indemnitee.




     8. LIABILITY INSURANCE



          For the duration of the Indemnitee’s service as a director and/or officer of the Company, and
thereafter for so long as the Indemnitee shall be subject to any pending or possible action, suit,
proceeding or claim of the type described in Section 2 hereof or any pending or possible claim of
the type described in Section 3 hereof, the Company shall cause to be maintained in effect policies
of directors’ and officers’




-8-









 




liability insurance providing coverage for directors and/or officers of
the Company that is at least substantially comparable in scope and amount to that provided by the
Company’s current policies of directors’ and officers’ liability insurance. The Company shall
provide the Indemnitee with a copy of all directors’ and officers’ liability insurance
applications, binders, policies, declarations, endorsements and other related materials, and shall
provide the Indemnitee with a reasonable opportunity to review and comment on the same. Without limiting the generality or effect of the two immediately preceding
sentences, the Company shall not discontinue or significantly reduce the scope or amount of
coverage from one policy period to the next (a) without the prior approval thereof by the vote or
consent of a majority of the Continuing Directors, even if less than a quorum or (b) if at the time
that any such discontinuation or significant reduction in the scope or amount of coverage is
proposed there are no Continuing Directors, without the prior written consent of the Indemnitee.
In all policies of directors’ and officers’ liability insurance obtained by the Company, the
Indemnitee shall be named as an insured in such a manner as to provide the Indemnitee the same
rights and benefits, subject to the same limitations, as are accorded to the Company’s directors
and officers most favorably insured by such policy.




     9. SHAREHOLDER RATIFICATION



          The Company may, at its option, propose at any future meeting of shareholders of the Company
that this Agreement be ratified by the shareholders of the Company; provided,
however, that the Indemnitee’s rights hereunder shall be fully enforceable in accordance
with the terms hereof whether or not such ratification is sought or obtained.




     10. FEES AND EXPENSES OF ENFORCEMENT



          It is the intent of the Company that the Indemnitee not be required to incur the expenses
associated with the enforcement of his rights under this Agreement by litigation or other legal
action because the cost and expense thereof would substantially detract from the benefits intended
to be extended to the Indemnitee hereunder. Accordingly, if it should appear to the Indemnitee
that the Company has failed to comply with any of its obligations under this Agreement or in the
event that the Company or any other person initiates any litigation or other legal action to
declare this Agreement void or unenforceable or to deny to, or to recover from, the Indemnitee the
benefits intended to be provided to the Indemnitee hereunder, the Company irrevocably authorizes
the Indemnitee from time to time to retain counsel of his choice, at the expense of the Company as
hereafter provided, to represent the Indemnitee in connection with the initiation and prosecution
by the Indemnitee of any litigation or other legal action to enforce his rights under this
Agreement or in connection with the defense by the Indemnitee of any litigation or other legal
action initiated by the Company or any other person to declare this Agreement void or unenforceable
or to deny to, or to recover from, the Indemnitee the benefits intended to be provided to the
Indemnitee hereunder. Regardless of the outcome thereof, the Company shall pay and be solely
responsible for any and all costs, charges, and expenses, including fees and expenses of attorneys




-9-









 




and others, reasonably incurred by the Indemnitee in connection with any litigation or other legal
action referred to in the immediately preceding sentence of this Section 10. In addition, the
Company shall pay and be solely responsible for the fees and expenses of any Independent Counsel.




     11. MERGER OR CONSOLIDATION



          In the event that the Company shall be a constituent corporation in a consolidation, merger,
or other reorganization, the Company, if it shall not be the surviving, resulting, or acquiring
corporation therein, shall require as a condition thereto that the surviving, resulting, or
acquiring corporation agree to assume all of the obligations of the Company hereunder and to
indemnify the Indemnitee to the full extent provided herein. Whether or not the Company is the
resulting, surviving, or acquiring corporation in any such transaction, the Indemnitee shall stand
in the same position under this Agreement with respect to the resulting, surviving, or acquiring
corporation as he would have with respect to the Company if its separate existence had continued.




     12. SEVERABILITY



          (a) The rights to indemnification provided by this Agreement shall not be exclusive of any
other rights of indemnification to which the Indemnitee may be entitled under the Articles, the
Regulations, the ORC or any other statute, any insurance policy, other agreement or vote of
shareholders or directors or otherwise, as to any actions or failures to act by the Indemnitee, and
shall continue after he has ceased to be a director, officer, employee or agent of the Company or
other entity for which his service gives rise to a right hereunder, and shall inure to the benefit
of his heirs, executors and administrators. For the avoidance of doubt, limitations on
indemnification under any such other agreement or right will not affect the parties’ relative
rights hereunder.




          (b) Except as provided in Section 12(a) hereof, the rights to indemnification provided by this
Agreement are personal to Indemnitee and are non-transferable by Indemnitee, and no party other
than the Indemnitee is entitled to indemnification under this Agreement.




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




     13. SECURITY



          To ensure that the Company’s obligations pursuant to this Agreement can be enforced by
Indemnitee, the Company may, at its option, establish a trust pursuant




-10-









 




to which the Company’s obligations pursuant to this Agreement and other similar agreements can be funded.




     14. NOTICES



          All notices and other communications hereunder shall be in writing and shall be personally
delivered or sent by recognized overnight courier service (a) if to the Company, to the then-current principal executive offices of the Company (Attention: General
Counsel) or (b) if to the Indemnitee, to the last known address of Indemnitee as reflected in the
Company’s records. Either party may change its address for the delivery of notices or other
communications hereunder by providing notice to the other party as provided in this Section 14.
All notices shall be effective upon actual delivery by the methods specified in this Section 14.




     15. GOVERNING LAW



          This Agreement shall be governed by and construed in accordance with the laws of the State of
Ohio, without giving effect to the principles of conflict of laws thereof.




     16. MODIFICATION



          This Agreement and the rights and duties of the Indemnitee and the Company hereunder may be
modified only by an instrument in writing signed by both parties hereto.




     17. COUNTERPARTS



     This Agreement may be executed in any number of counterparts and each of such counterparts
will for all purposes be deemed to be an original, and all counterparts together will constitute
but one and the same instrument.



-11-









 





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




	 	 	 	 	 
	 	GENCORP INC.

 	 
	 	By:  	 	 
	 	 	Name:	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	[Signature of Indemnitee] 	 
	 	 	 	 
	 




 









 





Exhibit 1




INDEMNIFICATION STATEMENT




STATE OF
_________________)



) SS




COUNTY OF
________________)




          I, ________________________, being first duly sworn, do depose and say as follows:




          1. This Indemnification Statement is submitted pursuant to the Indemnification Agreement,
dated ____________, 20___, between GenCorp, Inc., an Ohio corporation (the “Company”), and the
undersigned.




          2. I am requesting indemnification against costs, charges, expenses (which may include fees
and expenses of attorneys and/or others), judgments, fines and amounts paid in settlement
(collectively, “Liabilities”), which have been actually and reasonably incurred by me in connection
with a claim referred to in Section 3 of the aforesaid Indemnification Agreement.




          3. With respect to all matters related to any such claim, I am entitled to be indemnified as
herein contemplated pursuant to the aforesaid Indemnification Agreement.




          4. Without limiting any other rights which I have or may have, I am requesting indemnification
against Liabilities which have or may arise out of



 



 




	 	 	 	 	 
	 	 	 
	 	 	
 	 
	 	 	[Signature of Indemnitee] 	 
	 	 	 	 
	 



          Subscribed and sworn to before me, a Notary Public in and for said County and State, this
______day of ____________, 20___.




	 	 	 	 	 
	 	 	 
	 	 	
 	 
	 	 	 	 
	 	 	 	 
	 





[Seal]




          My commission expires the ______day of ____________, 20___.





 









 





Exhibit 2




UNDERTAKING




STATE OF __________________)



)         SS




COUNTY OF
________________)




          I, ________________________, being first duly sworn, do depose and say as follows:




          1. This Undertaking is submitted pursuant to the Indemnification Agreement, dated
____________, 20___, between GenCorp, Inc., an Ohio corporation (the “Company”) and the
undersigned.




          2. I am requesting payment of costs, charges and expenses which I have reasonably incurred or
will reasonably incur in defending an action, suit, proceeding or claim, referred to in Section
2(a) or 2(b) or any claim referred to in Section 3, or pursuant to Section 10, of the aforesaid
Indemnification Agreement.




          3. The costs, charges, and expenses for which payment is requested are, in general, all
expenses related to



 



 



 




          4. Part A1




          [Use this paragraph if the Indemnitee is a director of the Company] I hereby undertake to (a)
repay all amounts paid pursuant hereto if it is proved by clear and convincing evidence in a court
of competent jurisdiction that my action or failure to act which is the subject of the matter
described herein involved an act or omission undertaken with deliberate intent to cause injury to
the Company or undertaken with reckless disregard for the best interests of the Company and (b)
reasonably cooperate,



 



1          The Indemnitee shall not be eligible to execute Part A of this
Undertaking if, at the time of the Indemnitee’s act or omission at issue, the
Amended Articles of Incorporation or the Amended Code of Regulations of the
Company prohibit such advances by specific reference to the Ohio Revised Code
(the “ORC”) Section 1701.13(E)(5)(a), or if the only liability asserted against
the Indemnitee is in an action, suit, proceeding or claim on the Company’s
behalf pursuant to ORC Section 1701.95. In the event that the Indemnitee is
eligible to and does execute both Part A and Part B hereof, the costs, charges
and expenses which are paid by the Company pursuant hereto shall be required to
be repaid by the Indemnitee only if he is required to do so under the terms of
both Part A and Part B hereof.





 









 






at the Company’s sole cost and expense, with the Company concerning the action, suit,
proceeding or claim.




          [Use this paragraph if the Indemnitee is an officer of the Company but not a director of the
Company] I hereby undertake to (a) repay all amounts paid pursuant hereto (i) with respect to any
action, suit, proceeding (other than an action by or in the right of the Company) brought against
me by reason of the fact that I am or was an officer of the Company for which I received
advancement of Expenses, it is determined that I did not act in good faith and in a manner which I
reasonably believed to be in or not opposed to the best interests of the Company or (ii) with
respect to any action, suit, proceeding or claim brought against me by or in the right of the
Company for which I received advancement of Expenses, I am adjudged to be liable for negligence or
for misconduct in the performance of my duty to the Company and the court has not determined that I
am entitled to indemnification and (b) reasonably cooperate, at the Company’s sole cost and
expense, with the Company concerning the action, suit, proceeding or claim.




	 	 	 	 	 
	 	 	 
	 	  	
 	 
	 	 	[Signature of Indemnitee] 	 
	 	 	 	 
	 



          4. Part B




          I hereby undertake to repay all amounts paid pursuant hereto if it ultimately is determined
that I am not entitled to be indemnified by the Company under the aforesaid Indemnification
Agreement or otherwise.




	 	 	 	 	 
	 	 	 
	 	  	
 	 
	 	 	[Signature of Indemnitee] 	 
	 	 	 	 
	 



          Subscribed and sworn to before me, a Notary Public in and for said County and State, this
______day of ____________, 20___.



	 	 	 	 	 
	 	 	 
	 	  	
 	 
	 	 	 	 
	 	 	 	 
	 




[Seal]




          My commission expires the ______day of ____________, 20___.





-2-