INDEMNIFICATION AGREEMENT
EXHIBIT
10.6
FORM
OF INDEMNIFICATION AGREEMENT BETWEEN THE COMPANY AND EACH OF ITS
DIRECTORS
THIS AGREEMENT, made and entered into
this _____ day of ___________, by and between North American Galvanizing &
Coatings, Inc., a Delaware corporation (the “Company”), and
____________(“Indemnitee”).
W I T N E S S E T
H
WHEREAS, the Company desires to retain
and attract as its directors and officers the most capable persons
available;
WHEREAS, Indemnitee is an officer or
director of the Company or of an entity in which the Company directly or
indirectly owns an interest;
WHEREAS, both the Company and
Indemnitee recognize the risk of litigation and other claims being asserted
against companies’ directors and officers;
WHEREAS, the Restated Certificate of
Incorporation, as amended, and Amended and Restated Bylaws of the Company
(together, the “Charter Documents”) provide for indemnification and advancement
of expenses for the Company’s officers and directors, and persons who serve at
its request as officers and directors of other companies, and Indemnitee has
served and continues to serve in such capacity in part in reliance on such
provisions contained in the Charter Documents; and
WHEREAS, 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,
Indemnitee’s reliance on the Charter Documents, and in part to provide
Indemnitee with specific contractual assurance that the provisions of the
Charter Documents will be applicable to Indemnitee (regardless of, among other
things, any amendment to or revocation of such Charter Documents, any change in
the composition of the Company’s Board of Directors, or any acquisition
transaction relating to the (Company), the Company desires to provide for the
indemnification of and the advancement of expenses to Indemnitee to the fullest
extent (whether partial or complete) permitted by Delaware law, pursuant to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the
mutual premises contained herein and of Indemnitee continuing to serve the
Company directly or indirectly, at its request, and intending to be legally
bound hereby, the parties hereto agree as follows:
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Certain
Definitions:
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(a) “Change in Control”
shall be deemed to have occurred if (i) any person becomes, after the
date hereof, the “beneficial owner” (as defined in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended (the “1934 Act”), directly or indirectly, of
securities of the Company representing 25% or more of the total
voting power represented by the Company’s then outstanding Voting Securities;
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Company’s Board of Directors (the
“Board”) and any new director whose election by the Board or nomination for
election by the Company’s stockholders (the “Stockholders”) was approved by a
vote of at least two-thirds of the directors then still in office (who either
were directors at the beginning of the period or whose election or nomination
for election was previously so approved), cease for any reason to constitute a
majority thereof; (iii) a merger or consolidation of the Company with any other
corporation is approved, other than a merger or consolidation which 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 voting
power represented by the Voting Securities or the voting securities of such
surviving entity outstanding immediately after such merger or consolidation; or
(iv) a plan of complete liquidation of the Company or an agreement for the sale
or disposition by the Company of all or substantially all the Company’s asset is
approved by the Board and a majority of the Stockholders.
(b) “Claim” shall mean any
threatened, pending or completed action, suit or proceeding, or any inquiry or
investigation, whether civil, criminal, administrative, or investigative and
whether conducted by the Company or any other party.
( c
) “Expenses” shall mean
expenses (including attorneys’ fees), judgments, ERISA excise taxes or
penalties, fines and amounts paid in settlement (including all interest,
assessments and all other charges paid or payable in connection with or in
respect of such expenses, judgments, fines, taxes, penalties or amounts paid in
settlement), actually and reasonably incurred by Indemnitee in connection with
an Indemnifiable Event.
(d) “Indemnifiable Event”
shall main any event or occurrence related to the fact that Indemnitee is or was
a director, officer, employee, agent or fiduciary of the Company, or is or was
serving at the request (expressed or implied) of the Company as a director,
officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, or
by reason of anything done or not done by Indemnitee in any such
capacity.
(e) “Reviewing
Party” shall mean any appropriate person or body consisting of
a member or members of the Board or any other person or body appointed by the
Board (including the Independent Counsel referred to in Section 3 below) who is
not a party to the Claim for which Indemnitee is seeking
indemnification.
(f) “Voting Securities”
shall mean any securities of the Company which vote generally in the election of
directors.
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2.
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Basic Indemnification
Arrangement.
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(a) 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 part out of) an
Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest
permitted by Delaware law (as the same exists as of the date of this Agreement
or hereafter may be amended) and as provided by this Agreement, as soon as
written demand is presented to the Company, against any and all Expenses of such
Claim.
If so requested by Indemnitee, the
Company shall advance (within five (5) business days of such request) any and
all Expenses to Indemnitee before the final disposition of the Claim, upon
receipt by the Company of an undertaking by or on behalf of Indemnitee to repay
such advances if it shall be ultimately determined that Indemnitee is not
entitled to be indemnified under this Agreement or otherwise (each an “Expense
Advance”). The Company shall make all Expense Advances that
Indemnitee’s defense counsel certifies by affidavit to the Company as be in
reasonable and incurred in defending a Claim (including permissive and
compulsory counterclaims and affirmative defenses).
(b) Notwithstanding
the foregoing, (i) the obligations of the Company under Section 2(a) shall be
subject to the condition that the Reviewing Party shall not have determined (in
a written legal opinion if the Independent Counsel (as defined below) is
involved) that indemnification of Indemnitee would not be permitted under
applicable law; provided, however, that to be
effective any such denial of indemnification must be in a writing delivered to
Indemnitee stating with particularity the reason or reasons for such denial; and
(ii) the obligations of the Company to make Expense Advances pursuant to Section
2 (a) shall be subject to the condition that, if, when and to the extent that
the Reviewing Party determines that indemnification of Indemnitee would not be
permitted 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; provided, however, that if
Indemnitee has commenced legal proceedings in a court of competent jurisdiction
to secure a determination that Indemnitee should be indemnified
under applicable law, any determination made by the Reviewing Party
that indemnification of Indemnitee would not be permitted shall not be binding
and Indemnitee shall not be required to reimburse the Company for any Expense
Advance until a final judicial determination is made with respect
thereto.
(c) If
there has not been a Change in Control, the Reviewing Party shall be selected by
the Board, and if there has been a Change in Control, the Reviewing Party shall
be the Independent Counsel. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that indemnification of
Indemnitee or Expense Advances would not be permitted in whole or in part under
applicable law, Indemnitee shall have the right to commence litigation, in any
Delaware court having subject matter jurisdiction thereof and in which venue is
proper, seeking an initial determination by the court or challenging any such
determination by the Reviewing Party or any aspect thereof, and the Company
hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall
be conclusive and binding on the Company and Indemnitee.
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3.
Change in
Control. The Company agrees that if there is a Change in
Control, then, with respect to all matters thereafter arising concerning the
rights of Indemnitee to indemnification and Expense Advances under this
Agreement, any other agreement, or the Charter Documents, the Company shall seek
legal advice as to such matters relating to the rights to indemnification and
Expense Advances only from independent counsel selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably withheld), and
who has not performed services for the Company or Indemnitee within the last
five years (other than in connection with such matters relating to the rights to
indemnification and Expense Advances) (the “Independent
Counsel”). The Independent Counsel, among other things, shall render
its written opinion to the Company and Indemnitee as to whether and to what
extent the Indemnitee would be permitted to be indemnified under applicable
law. The Company agrees to pay the reasonable fees of the Independent
Counsel and to fully indemnify the Independent Counsel against any and all
expenses (including attorneys’ fees), claims, liabilities and damages arising
out of or relating to this Agreement or its engagement pursuant
hereto.
4,
Indemnification for
Additional Expenses. The Company shall indemnify
Indemnitee against any and all expenses (including reasonable attorneys’ fees)
and, if requested by Indemnitee, shall (within five (5) business days of such
request) advance such expenses to Indemnitee, which are incurred by Indemnitee
in connection with any claim asserted against or action brought by Indemnitee
for (i) indemnification or Expense Advance by the Company under this Agreement,
any other agreement, or any provision of the Charter Documents and/or (ii)
recovery under any directors’ and officers’ liability insurance policies
maintained by the Company; provided, however, that
Indemnitee is ultimately determined to be entitled, in whole or in part, to such
indemnification, Expense Advance or insurance recovery. The Company
shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse
the Company) for all such amounts theretofore paid Indemnitee under this Section
4 if Indemnitee ultimately is determined not to be entitled to such
indemnification, Expense Advance payment or insurance recovery.
5.
Partial
Indemnity. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for a portion, but not all,
of the Expenses, the Company shall indemnify Indemnitee for the portion thereof
to which Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been successful
on the merits or otherwise in defense of any or all Claims relating in whole or
in part to an Indemnifiable Event or in defense of any issue or matter therein,
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith.
6.
Burden of
Proof. In connection with any determination by the
Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.
7.
No
Presumption. For purposes of this Agreement, the termination
of any Claim, by judgment, order, settlement (whether with or without court
approval, conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that Indemnitee did not meet any applicable
standard of conduct.
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8.
Non-exclusivity. The
rights of Indemnitee hereunder shall be in addition to any other rights
Indemnitee may have under the Charter Documents, the corporate law of the State
of Delaware, or otherwise. To the extent that a change in the
corporate law of the State of Delaware (whether by statute or judicial decision)
permits greater indemnification by agreement than would be afforded currently
under the Charter Documents and this Agreement, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded.
9.
Liability
Insurance. To the extent the company maintains an
insurance policy or policies providing director’ 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 provided for any
Company director or officer of the Company.
10. Amendment
Waiver. Except as provided in Section 8 above, 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 shall
be deemed
or shall constitute a waiver of any of the provisions hereof (whether or not
similar) nor shall such waiver constitute a continuity waiver.
11. Subrogation. With
respect to any payments made under this Agreement, the Company shall be
subrogated to the extent of such payments to all of the rights of recovery of
Indemnitee, who shall execute all documents 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.
12. No Duplication of
Payment. 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 otherwise actually received payment (under any insurance
policy, the Charter Documents or otherwise) of the amounts otherwise
indemnifiable hereunder.
13. Binding
Effect. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors, assigns (including without limitation any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Company), heirs, and
personal and legal representatives. This Agreement shall continue in
effect regardless of whether Indemnitee continues to serve as an officer or
director of the Company or of any other enterprise at the Company’s
request.
14. Severability.
All of the provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest extent permitted by
law.
15. 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 state without giving effect to the
principles of conflicts of laws.
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16. Headings. The
headings in this Agreement are for convenience of reference only and shall not
be deemed to affect any provision of this Agreement.
17. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the
same instrument.
EXECUTED
this _______ day of ______________.
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NORTH
AMERICAN GALVANIZING & COATINGS, INC.
By:
______________________________________
Name:
Title:
INDEMNITEE:
_________________________________________
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