EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, made and entered into this day of May,
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2002 ("Agreement"), by and between Oregon Steel Xxxxx, Inc., a Delaware
corporation (the "Company"), and ("Director").
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In consideration of the mutual promises in this Agreement, and intending to be
legally bound, the Company and Director do hereby covenant and agree as follows:
SECTION 1. SERVICES BY DIRECTOR. Director agrees to serve as a director so long
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as he is duly appointed or elected and qualified in accordance with the
applicable provisions of the Restated Certificate of Incorporation and Bylaws of
the Company or any subsidiary of the Company and until such time as he resigns
or fails to stand for election. Director may at any time and for any reason
resign from such position (subject to any other contractual obligation or other
obligation imposed by operation of law), in which event the Company shall have
no obligation under this Agreement to continue Director in any such position.
SECTION 2. INDEMNIFICATION. The Company shall indemnify Director to the fullest
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extent permitted by applicable law or the Certificate of Incorporation of the
Company in effect on the date hereof or as such laws or Certificate of
Incorporation may from time to time be amended (but, in the case of any such
amendment, only to the extent such amendment permits the Company to provide
broader indemnification rights than the law or Certificate of Incorporation
permitted the Company to provide before such amendment). The right to
indemnification conferred in the Certificate of Incorporation shall be presumed
to have been relied upon by Director in serving or continuing to serve the
Company and shall be enforceable as a contract right. Without in any way
diminishing the scope of the indemnification provided by this Section 2, the
Company will indemnify Director if and whenever he is or was a party or is
threatened to be made a party to any Proceeding, including without limitation
any such Proceeding brought by or in the right of the Company, by reason of the
fact that he is or was an Agent or by reason of anything done or not done by him
in such capacity, against Expenses and Liabilities actually and reasonably
incurred by Director or on his behalf in connection with the investigation,
defense, settlement or appeal of such Proceeding. No initial finding by the
Board, its counsel, Independent Counsel, arbitrators or the stockholders shall
be effective to deprive Director of the protection of this indemnity, nor shall
a court to which Director may apply for
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enforcement of this indemnity give any weight to any such adverse finding in
deciding any issue before it, as it is intended that Director shall be paid
promptly by the Company all amounts necessary to effectuate the foregoing
indemnity in full. In addition to, and not as a limitation of, the foregoing,
the rights of indemnification of Director provided under this Agreement shall
include those rights set forth in Sections 3, 6 and 7 below.
SECTION 3. MAINTENANCE OF INSURANCE AND SELF-INSURANCE.
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(a) The Company represents that it will use reasonable efforts to
maintain in force policies of D & O Insurance in responsible insurance companies
(the "Insurance Policies"). Subject only to the provisions of Section 2(b)
hereof, the Company hereby agrees that, so long as Director shall continue to
serve as an Agent of the Company (or shall continue at the request of Company to
serve as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and thereafter so long as
Director shall be subject to any possible claim or threatened, pending criminal
or investigative by reason of the fact that Director was an Agent of the
Company, the Company will purchase and maintain in effect for the benefit of
Director one or more valid, binding and enforceable policy or policies of D & O
insurance providing, in all respects, coverage at least comparable to that
presently provided pursuant to the Insurance Policies.
(b) The Company shall not be required to maintain said policy or
policies of D & O Insurance in effect if such insurance is not reasonably
available or if, in the reasonable business judgment of the then directors of
the Company, either (i) the premium cost for such insurance is substantially
disproportionate to the amount of coverage or (ii) the coverage provided by such
insurance is so limited by exclusions that there is insufficient benefit from
such insurance.
(c) In the event the Company does not purchase and maintain in effect
such policy or policies of D & O Insurance pursuant to the provisions of Section
2(b) herein, the Company agrees to hold harmless and indemnify Director to the
full extent of the coverage which would otherwise have been provided for the
benefit of Director pursuant to the Insurance Policies.
SECTION 4. ADVANCEMENT OF EXPENSES AND COSTS; LETTER OF CREDIT.
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(a) Advances. All reasonable Expenses incurred by or on behalf of
Director shall be advanced by the Company to Director within 20 days after the
receipt by the Company of a written request for an advance or advances of
Expenses from time to time, whether prior to or after final disposition of a
Proceeding (unless there has been a final determination that Director is not
entitled to be indemnified for such Expenses), including without limitation any
Proceeding brought by or in the right of the Company. Director's entitlement to
advancement of Expenses shall
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include those incurred in connection with any Proceeding by Director seeking an
adjudication or award in arbitration pursuant to this Agreement. The requests
shall reasonably evidence the expenses incurred by Director in connection
therewith. If required by law at the time of such advance, Director hereby
undertakes to repay the amounts advanced if it shall ultimately be determined
that Director is not entitled to be indemnified pursuant to the terms of this
Agreement.
(b) Letter of Credit. In order to secure the obligations of the Company
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to indemnify Director under Section 2 hereof and to advance to Director certain
amounts under Section 3(a) hereof, the Company shall obtain upon the occurrence
of any Triggering Event, an irrevocable standby letter of credit naming Director
as the sole beneficiary, in an appropriate amount not less than $500,000, issued
by a financial institution having assets in excess of $100 million and
containing terms and conditions reasonably acceptable to Director (the "Letter
of Credit"). The Letter of Credit shall provide that Director may from time to
time draw certain amounts thereunder, upon the presentation to the issuer
thereof of a certificate execute by Director certifying (i) that Director has
made demand upon the Company for an amount not less than the amount he is
drawing upon under the Letter of Credit and that the Company has refused to
provide Director with such amount and (ii) that Director believes that he is
entitled under the terms of this Agreement to the amount which he is drawing
upon under the Letter of Credit.
(c) Term of Letter of Credit. Once the Company has obtained the Letter
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of Credit required by Section 3(b) hereof, the Company shall maintain and renew
the Letter of Credit or a substitute letter of credit meeting the criteria of
Section 3(b) hereof during the term of this Agreement in a manner such that the
Letter of Credit shall have an initial term of five years, be renewed for
successive five-year terms, and shall always have at least one year of its term
remaining.
SECTION 5. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
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(a) Whenever Director believes that he is entitled to indemnification
pursuant to this Agreement, Director shall submit a written request for
indemnification to the Company to the attention of the Chairman of the Board or
the Chief Executive Officer with a copy to the Secretary. This request shall
include documentation or information which is necessary for the determination of
entitlement to indemnification and which is reasonably available to Director.
Determination of Director's entitlement to indemnification shall be made not
later than 60 days after any judgment, order, settlement, dismissal, arbitration
award, conviction, acceptance of a plea of nolo contendere or its equivalent, or
other disposition or partial disposition of any Proceeding or any other event
which could enable the Company to determine Director's entitlement to
indemnification. The Chairman of the Board or the Chief Executive Officer or the
Secretary shall, promptly upon receipt of Director's request for
indemnification, advise the Board in writing that
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Director has made such request for indemnification.
(b) The Company shall be entitled to select the forum in which
Director's entitlement to indemnification will be heard unless a Triggering
Event has occurred, in which case Director shall be entitled to select the
forum. The Company or Director, as the case may be, shall notify the other party
in writing as to the forum selected, which selection shall be from among the
following: (i) The stockholders of the Company; (ii) A quorum of the Board
consisting of Disinterested Directors; (iii) Independent Counsel selected by
Director, and reasonably approved by the Board, which counsel shall make the
determination in a written opinion; or
(iv) A panel of three arbitrators, one of whom is selected by the
Company, another of whom is selected by Director and the last of whom is
selected by the first two arbitrators so selected; or if for any reason three
arbitrators are not selected within 30 days after the appointment of the first
arbitrator, then selection of additional arbitrators to complete the three
person panel shall be made by the American Arbitration Association under its
commercial arbitration rules now in effect.
SECTION 6. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. Upon making a request
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for indemnification, Director shall be presumed to be entitled to
indemnification under this Agreement and the Company shall have the burden of
proof to overcome that presumption in reaching any contrary determination. If
the person or persons so empowered to make the determination shall have failed
to make the requested determination within 60 days after any judgment, order,
settlement, dismissal, arbitration award, conviction, acceptance of a plea of
nolo contendere or its equivalent, or other disposition or partial disposition
of any Proceeding or any other event which could enable the Company to determine
Director's entitlement to indemnification, the requisite determination of
entitlement to indemnification shall be deemed to have been made and Director
shall be absolutely entitled to indemnification under this Agreement, absent (i)
misrepresentation by Director of a material fact in the request for
indemnification of (ii) a specific finding that all or any part of such
indemnification is expressly prohibited by law. The termination of any
Proceeding by judgment, order, settlement, arbitration award or conviction, or
upon a plea of nolo contendere or its equivalent, shall not of itself (a)
adversely affect the rights of Director to Indemnification except as may be
provided herein, (b) credit a presumption that Director 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 (c) with respect to any criminal action or
proceeding, create a presumption that Director had reasonable cause to believe
that his conduct was unlawful.
SECTION 7. REMEDIES OF DIRECTOR IN CASES OF DETERMINATION NOT TO INDEMNIFY OR TO
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ADVANCE EXPENSES. (a) In the event that (i) an initial determination is made
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that Director is not entitled to indemnification, (ii) advances are not made
pursuant to this Agreement, (iii) payment has not been timely made following a
determination of entitlement to indemnification pursuant to this Agreement or
(iv) Director otherwise seeks enforcement of this Agreement, Director shall be
entitled to a final adjudication in an appropriate court of the State of
Delaware of his entitlement to such indemnification or advance. Alternatively,
Director at his option may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the commercial arbitration rules of the American
Arbitration Association now in effect, which award is to be made within ninety
(90) days following the filing of the demand for arbitration. The Company shall
not oppose Director's right to seek any such adjudication or arbitration award.
In any such proceeding or arbitration, Director shall be presumed to be entitled
to indemnification under this Agreement and the Company shall have the burden of
proof to overcome that presumption.
(b) In the event an initial determination has been made, in whole or in
part, that Director is not entitled to indemnification, the decision in the
judicial proceeding or arbitration provided in paragraph (a) of this Section 6
shall be made de novo and Director shall not be prejudiced by reason of a
determination that he is not entitled to indemnification.
(c) If an initial determination is made or deemed to have been made pursuant to
the terms of this Agreement that Director is entitled to indemnification, the
Company shall be bound by such determination in the absence of (i) a
misrepresentation of a material fact by Director of (ii) a specific finding
(which has become final) that all or any part of such indemnification is
expressly prohibited by law.
(d) The Company shall be precluded from asserting that the procedures
and presumptions of this Agreement are not valid, binding and enforceable. The
Company shall stipulate in any such court or before any such arbitrator that the
Company is bound by all the provisions of this Agreement and is precluded from
making any assertion to the contrary.
(e) Expenses incurred by Director in connection with his request for
indemnification under, seeking enforcement of or to recover damages for breach
of this Agreement shall be borne by the Company.
SECTION 8. OTHER RIGHTS TO INDEMNIFICATION. Director's rights of indemnification
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and advancement of expenses provided by this Agreement shall not be deemed
exclusive of any other rights to which Director may now or in the future be
entitled under applicable law, the Certificate of Incorporation, By-laws,
agreement, vote of stockholders, resolution of directors, or otherwise.
SECTION 9. LIMITATIONS ON INDEMNITY. The Company shall not be liable under this
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Agreement to make any payment to Director to the extent that Director has
already been reimbursed pursuant to such D & O Insurance as the Company may
maintain for Director's benefit. Notwithstanding the availability of such
insurance, Director also may claim indemnification from the Company pursuant to
this Agreement by assigning to the Company any claims under such insurance to
the extent Director is paid by the Company.
SECTION 10. DURATION AND SCOPE OF AGREEMENT; BINDING EFFECT. This Agreement
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shall continue so long as Director shall be subject to any possible Proceeding
by reason of the fact that he is or was an Agent and shall be applicable to
Proceedings commenced or continued after execution of this Agreement, whether
arising from acts or omissions occurring before or after such execution. This
Agreement shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of Director and his spouse, assigns, heirs, devisees,
executors, administrators and other legal representatives.
SECTION 11. SEVERABILITY. If any provision or provisions of this Agreement (or
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any portion thereof) shall be held to be invalid, illegal or unenforceable for
any reason whatsoever: (a) the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be affected or
impaired thereby; and (b) to the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the intent manifested by
the provision held invalid, illegal and unenforceable.
SECTION 12. IDENTICAL COUNTERPARTS. This Agreement may be executed in one or
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more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
SECTION 13. INTERPRETATION OF AGREEMENT. It is understood that the parties
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hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to Director to the fullest extent now or hereafter permitted by
law.
SECTION 14. HEADINGS. The headings of the Sections and paragraphs of this
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Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.
SECTION 15. DEFINITIONS. For purposes of this Agreement:
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(a) "Agent" shall mean any person who (i) is or was a director, officer
or employee of the Company or a subsidiary of the Company whether serving in
such
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capacity or as a director, officer, employee, agent, fiduciary or other official
of another entity at the request of, for the convenience of, or to represent the
interests of the Company or a subsidiary of the Company or (ii) was a director,
officer or employee of a corporation which was a predecessor corporation of the
Company or a subsidiary of the Company whether serving in such capacity or as a
director, officer, employee, agent, fiduciary or other official of another
entity at the request of, for the convenience of, or to represent the interests
of such predecessor corporation.
(b) "Disinterested Director" shall mean a director of the Company who
is not or was not a party to the Proceeding in respect of which indemnification
is being sought by Director.
(c) "Expenses" shall include all direct and indirect costs (including,
without limitation, attorneys' fees, retainers, court costs, transcripts, fees
of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, all other
disbursements or out-of-pocket expenses and reasonable compensation for time
spent by Director for which he is otherwise not compensated by the Company or
any third party) actually and reasonably incurred in connection with either the
investigation, defense, settlement or appeal of a Proceeding or establishing or
enforcing a right to indemnification under this Agreement, applicable law or
otherwise; provided, however, that "Expenses" shall not include any judgments,
fines or ERISA excise taxes or penalties.
(d) "Independent Counsel" shall mean a law firm or a member of a law
firm that neither is presently nor in the past five years has been retained to
represent: (i) the Company or Director in any matter material to either party,
or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term "Independent
Counsel" shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Director in an action to determine Director's
right to indemnification under this Agreement.
(e) "Liabilities" shall mean liabilities of any type whatsoever,
including, but not limited to, judgments, fines, ERISA excise taxes and
penalties, and amounts paid in settlement.
(f) "Proceeding" shall mean any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil criminal, administrative or investigative.
(g) "Triggering Event" shall mean the acquisition by any person (other
than the Company or the Employee Stock Ownership Plan of the Company) of 30% or
more of the outstanding shares of common stock of the Company unless a majority
of the entire Board shall have earlier approved such acquisition.
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SECTION 16. PRONOUNS. Use of the masculine pronoun shall be deemed to
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include usage of the feminine where appropriate.
SECTION 17. MODIFICATION AND WAIVER. No supplement, modification or amendment of
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this Agreement shall be binding unless executed in writing by both of the
parties to this Agreement. No waiver of any other provision hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
SECTION 18. NOTICE BY DIRECTOR AND DEFENSE OF CLAIMS. Director agrees promptly
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to notify the Company in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
matter which may be subject to indemnification hereunder, whether civil,
criminal, administrative or investigative; but the omission so to notify the
Company will not relieve it from any liability which it may have to Director if
such omissions does not prejudice the Company's rights and if such omission does
prejudice the Company's rights, it will relieve the Company from liability only
to the extent of such prejudice; nor will such omission relieve the Company from
any liability which it may have to Director otherwise than under this Agreement.
With respect to any Proceeding as to which Director notifies the Company of the
commencement thereof:
(a) The Company will be entitled to participate therein at its own
expense; and
(b) Except as otherwise provided below, to the extent that it may wish,
the Company jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel reasonably satisfactory to
Director. After notice from the Company to Director of its election so to assume
the defense thereof, the Company will not be liable to Director under this
Agreement for any Expenses subsequently incurred by Director in connection with
the defense thereof other than reasonable costs of investigation or as otherwise
provided below. Director shall have the right to employ his counsel in such
Proceeding but the fees and expenses of such counsel incurred after notice from
the Company of its assumption of the defense thereof shall be at the expense of
Director unless (i) the employment of counsel by Director has been authorized by
the Company, (ii) Director shall have reasonably concluded that there may be a
conflict of interest between the Company and Director in the conduct of the
defense of such action or that counsel may not be adequately representing
Director, (iii) a Triggering Event shall have occurred or (iv) the Company shall
not in fact have employed counsel to assume the defense of such action, in each
of which cases the fees and expenses of counsel shall be at the expense of the
Company. The Company shall not be entitled to assume the defense of any
Proceeding as to which Director shall have made the conclusion provided for in
(ii) above or if an event specified in (iii) above shall have occurred.
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(c) The Company shall not be liable to indemnify Director under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. The Company shall not settle any action or claim in
any manner which would impose any penalty or limitation on Director without
Director's written consent. Neither the Company nor Director will unreasonably
withhold their consent to any proposed settlement.
SECTION 19. NOTICES. All notices, requests, demands and other communications
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hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed or (ii) mailed by certified or registered
mail with postage prepaid, on the third business day after the date on which it
is so mailed:
(a) If to Director, to:
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(b) If to the Company, to:
Oregon Steel Xxxxx, Inc.
X.X. Xxx 0000
Xxxxxxxx, Xxxxxx 00000
Attention: Secretary
With a copy to:
Xxxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxxx & Xxxxx
Suite 1800, Pacwest Center
0000 XX Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
or to such other address as may have been furnished to Director by the Company
or to the Company by Director, as the case may be.
SECTION 20. GOVERNING LAW. The parties agree that this Agreement shall be
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governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, as applied to contracts between Delaware residents entered
into and to be performed entirely within Delaware.
SECTION 21. CONSENT TO JURISDICTION. The Company and Director each hereby
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irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the State Court of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
ATTEST: COMPANY:
By: By:
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Its: Chief Executive Officer and President
Director
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Address:
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