Exhibit 10(w)
INVACARE CORPORATION
FORM OF INDEMNITY AGREEMENT
THIS AGREEMENT is made as of the ___ day of __________, 20--, by and
between INVACARE CORPORATION, an Ohio corporation (the "Corporation"), and
_______________ ("Indemnitee"), a Director and an Officer of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
Directors and/or Officers the most capable persons available, such as
Indemnitee; and
WHEREAS, the prevalence of corporate litigation subjects directors and
officers to expensive litigation risks, and it is the policy of the Corporation
to indemnify its Directors and/or Officers so as to provide them with the
maximum possible protection permitted by law; and
WHEREAS, in addition, because the statutory indemnification provisions of
the Ohio Revised Code expressly provide that they are non-exclusive, it is the
policy of the Corporation to indemnify Directors and Officers who, on behalf of
the Corporation, have entered into settlements of derivative suits or have paid
judgments, fines or penalties therefor, provided they have not breached the
applicable statutory standard of conduct; and
WHEREAS, Indemnitee does not regard the protection available under the
Corporation's Code of Regulations and insurance, if any, as adequate in the
present circumstances, and considers it necessary and desirable to his or her
service as a Director and/or Officer to have maximum protection, and the
Corporation desires to provide such protection to induce Indemnitee to serve in
such capacity; and
WHEREAS, the Ohio Revised Code Section 1701.13(E) and the Corporation's
Code of Regulations Article V(a) provide that indemnification of Directors and
Officers of the Corporation may be authorized by agreement, and thereby
contemplates that contracts of this nature may be entered into between the
Corporation and Indemnitee with respect to indemnification of Indemnitee as a
Director or an Officer of the Corporation.
NOW, THEREFORE, for good and valuable consideration, the sufficiency and
adequacy of which is hereby acknowledged, the Corporation and Indemnitee do
hereby agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to serve as a
Director and/or Officer of the Corporation for so long as he or she is duly
elected or appointed or until such time as he or she tenders his or her
resignation in writing or is otherwise terminated or removed from office.
The Corporation expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on the Corporation hereby in order
to induce Indemnitee to continue to serve as a Director and/or Officer of the
Corporation, and acknowledges that Indemnitee is relying upon this Agreement in
continuing in such capacity.
2. Definitions. As used in this Agreement:
The term "Proceeding" shall include any threatened, pending, or completed
action, suit or proceeding, whether brought by or in the right of the
Corporation or otherwise and whether of a civil, criminal, administrative or
investigative nature, in which Indemnitee may be or may have been involved as a
party or otherwise, by reason of the fact that Indemnitee is or was a Director
and/or Officer of the Corporation or any subsidiary of the Corporation, by
reason of any action taken by Indemnitee or of any inaction on his or her part
while acting as such a Director and/or Officer, or by reason of the fact that he
or she is or was serving at the request of the Corporation as a director,
officer, member or manager, partner, trustee, employee or agent of another
corporation, domestic or foreign, non-profit or for-profit, a limited liability
company or a partnership, joint venture, trust or other enterprise; in each case
whether or not he or she is acting or serving in any such capacity at the time
any liability or expense is incurred for which indemnification or reimbursement
can be provided under this Agreement.
The term "Expenses" shall include, without limitation, expenses of
investigations, judicial or administrative proceedings or appeals, attorneys'
fees and disbursements and any expenses of establishing a right to
indemnification under Paragraph 9 of this Agreement, but shall not include the
amount of judgments, fines or penalties against or settlements paid by
Indemnitee.
References to "other enterprise" shall include, without limitation,
employee benefit plans; references to "fines" shall include, without limitation,
any excise tax assessed with respect to any employee benefit plan; references to
"serving at the request of the Corporation" shall include, without limitation,
any service as a Director or Officer of the Corporation which imposes duties on,
or involves services by, such Director or Officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner he or she reasonably believed to be in the best interests
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Agreement.
3. Indemnity in Third-Party Proceedings. The Corporation shall indemnify
Indemnitee in accordance with the provisions of this Paragraph 3 if Indemnitee
is a party to or threatened to be made a party to or otherwise involved in any
Proceeding (other than a Proceeding by or in the right of the Corporation to
procure a judgment in its favor) by reason of the fact that Indemnitee is or was
a Director and/or Officer of the Corporation or a subsidiary of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
member or manager, partner, trustee, employee or agent of another corporation,
domestic or foreign, non-profit or for-profit, a limited liability company or a
partnership, joint venture, trust or other enterprise, against all Expenses,
judgments, settlements, fines and penalties, actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of such Proceeding, but
only if Indemnitee acted in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe that his or her conduct was unlawful. The termination of any such
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Proceeding by judgment, order of court, settlement, conviction or upon a plea of
nolo contendere, or its equivalent, shall not, of itself, create a presumption
that Indemnitee did not act in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation, and with respect to any criminal proceeding, that such person had
reasonable cause to believe that his or her conduct was unlawful.
4. Indemnity for Expenses in Proceedings by or in the Right of the
Corporation. The Corporation shall indemnify Indemnitee in accordance with the
provisions of this Paragraph 4 if Indemnitee is a party to or threatened to be
made a party to any Proceeding by or in the right of the Corporation to procure
a judgment in its favor by reason of the fact that Indemnitee is or was a
Director and/or Officer of the Corporation or a subsidiary of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
member or manager, partner, trustee, employee or agent of another corporation,
domestic or foreign, non-profit or for-profit, a limited liability company or a
partnership, joint venture, trust or other enterprise, against all Expenses
actually and reasonably incurred by Indemnitee in connection with the defense of
such Proceeding, but only if he or she acted in good faith and in a manner which
he or she reasonably believed to be in or not opposed to the best interests of
the Corporation, except that no indemnification for Expenses shall be made under
this Paragraph 4 in respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged by a court order or judgment, by a court of competent
jurisdiction, to be liable to the Corporation, unless and only to the extent
that any court in which such Proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses as such court shall deem proper.
5. Indemnity for Amounts Paid in Settlement in Proceedings by or in the
Right of the Corporation. The Corporation shall indemnify Indemnitee in
accordance with the provisions of this Paragraph 5 if Indemnitee is a party to
or threatened to be made a party to any Proceeding by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that
Indemnitee is or was a Director and/or Officer of the Corporation or a
subsidiary of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, member or manager, partner, trustee,
officer, employee, or agent of another corporation, domestic or foreign,
non-profit or for-profit, a limited liability company or a partnership, joint
venture, trust or other enterprise, against all amounts actually and reasonably
paid in settlement by Indemnitee in connection with any such Proceeding, but
only if he or she acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the Corporation.
6. Indemnity for Amounts Paid for in Judgments in Proceedings by or in the
Right of the Corporation. The Corporation shall indemnify Indemnitee in
accordance with the provisions of this Paragraph 6 if Indemnitee is a party to
or threatened to be made a party to any Proceeding by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that
Indemnitee is or was a Director and/or Officer of the Corporation or a
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subsidiary of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, member or manager, partner, trustee,
officer, employee, or agent of another corporation, domestic or foreign,
non-profit or for-profit, a limited liability company or a partnership, joint
venture, trust or other enterprise, against all judgments, fines and penalties
actually and reasonably incurred by Indemnitee in connection with any such
Proceeding, but only if he or she acted in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
Corporation.
7. Indemnification of Expenses of Successful Party. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding or in defense
of any claim, issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith.
8. Advances of Expenses. Any Expenses incurred by or on behalf of
Indemnitee pursuant to Paragraphs 3 or 4 in any Proceeding shall be paid by the
Corporation in advance upon the written request of Indemnitee if Indemnitee
shall undertake to (a) repay such amount to the extent that it is ultimately
determined by clear and convincing evidence in a court that Indemnitee is not
entitled to indemnification hereunder, and (b) reasonably cooperate with the
Corporation concerning the action, suit or proceeding giving rise to the
Expenses. Any advances to be made under this Paragraph 8 shall be paid by the
Corporation to Indemnitee within twenty (20) days following delivery of a
written request therefor by Indemnitee to the Corporation.
9. Procedure. Any indemnification and advances provided for in Xxxxxxxxx 0,
0, 0, 0, 0 xxx 0 xxxxx xx made no later than twenty (20) days after receipt of
the written request of Indemnitee. If a claim under this Agreement, under any
statute, or under any provision of the Corporation's Code of Regulations or
Articles of Incorporation providing for indemnification, is not paid in full by
the Corporation within twenty (20) days after a written request for payment
thereof has been first received by the Corporation, Indemnitee may, but need
not, at any time thereafter bring an action against the Corporation to recover
the unpaid amount of the claim and, subject to the other provisions of this
Agreement, Indemnitee also shall be entitled to be paid for the Expenses of
bringing such action. It shall be a defense to any such action (other than an
action brought to enforce a claim for Expenses incurred in connection with any
action, suit or proceeding in advance of its final disposition) that Indemnitee
has not met the standards of conduct which make it permissible under applicable
law for the Corporation to indemnify Indemnitee for the amount claimed, but the
burden of proving such defense shall be on the Corporation and Indemnitee shall
be entitled to receive advance payments of expenses pursuant to Paragraph 8
hereof unless and until such defense may be finally adjudicated by court order
or judgment from which no further right of appeal exists. It is the parties'
intention that if the Corporation contests Indemnitee's right to
indemnification, the question of Indemnitee's right to indemnification shall be
for the court to decide. There shall exist in such action a rebuttable
presumption that Indemnitee has met the applicable standard(s) of conduct and is
therefore entitled to indemnification pursuant to this Agreement. Neither the
failure of the Corporation (including its Board of Directors, any committee or
subgroup of the Board of Directors, independent legal counsel or its
shareholders) to have made a determination that indemnification of Indemnitee is
proper in the circumstances because Indemnitee has met the applicable standard
of conduct as may be required by applicable law, nor any actual determination by
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the Corporation (including its Board of Directors, any committee or subgroup of
the Board of Directors, independent legal counsel, or its shareholders) that
Indemnitee has not met such applicable standard of conduct, shall (a) constitute
a defense to such action, (b) create a presumption that Indemnitee has or has
not met the applicable standard of conduct, or (c) otherwise alter the
presumption in favor of Indemnitee referred to in the preceding sentence.
10. Allowance for Compliance with SEC Requirements. Indemnitee acknowledges
that the Securities and Exchange Commission ("SEC") has expressed the opinion
that indemnification of directors and officers from liabilities under the
Securities Act of 1933, as amended (the "Act"), is against public policy as
expressed in the Act and is, therefore, unenforceable. Indemnitee hereby
acknowledges and agrees that it will not be a breach of this Agreement for the
Corporation to undertake with the SEC in connection with the registration for
sale of any capital stock or other securities of the Corporation from time to
time that, in the event a claim for indemnification against such liabilities
(other than the payment by the Corporation of expenses incurred or paid by a
director or officer of the Corporation in the successful defense of any action,
suit or proceeding) is asserted in connection with such capital stock or other
securities being registered, the Corporation will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of competent jurisdiction on the question of whether or not such indemnification
by it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue. Indemnitee further agrees that such
submission to a court of competent jurisdiction shall not be a breach of this
Agreement.
11. Indemnification Hereunder Not Exclusive. The indemnification provided
by this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under the Articles of Incorporation or the Code of
Regulations of the Corporation, any agreement, any vote of shareholders or
disinterested directors, the Ohio General Corporation Laws, or otherwise, both
as to action in his or her official capacity and as to action in another
capacity while holding such office.
The indemnification under this Agreement for any action taken or not taken
while serving in an indemnified capacity shall continue as to Indemnitee even
though he or she may have ceased to be a Director and/or Officer and shall inure
to the benefit of the heirs, executors and personal representatives of
Indemnitee.
12. Partial Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Corporation for some claims, issues
or matters, but not as to other claims, issues or matters, or for some or a
portion of the Expenses, judgments, fines or penalties actually and reasonably
incurred by Indemnitee or amounts actually and reasonably paid in settlement by
Indemnitee in the investigation, defense, appeal or settlement of any
Proceeding, but not for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such claims, issues or
matters or Expenses, judgments, fines, penalties or amounts paid in settlement
to which Indemnitee is entitled.
13. No Rights of Continued Employment. Nothing contained in this Agreement
is intended to create in Indemnitee any right to continued employment with the
Corporation.
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14. Reimbursement to Corporation by Indemnitee; Limitation on Amounts Paid
by Corporation. To the extent Indemnitee has been indemnified by the Corporation
hereunder and later receives payments from any insurance carrier covering the
same Expenses, judgments, fines, penalties or amounts paid in settlement so
indemnified by the Corporation hereunder, Indemnitee shall immediately reimburse
the Corporation hereunder for all such amounts received from the insurer.
Notwithstanding anything contained herein to the contrary, Indemnitee shall
not be entitled to recover amounts under this Agreement which, when added to the
amount of indemnification payments made to, or on behalf of, Indemnitee, under
the Articles of Incorporation or Code of Regulations of the Corporation, in the
aggregate exceed the Expenses, judgments, fines, penalties and amounts paid in
settlement actually and reasonably incurred by Indemnitee ("Excess Amounts"). To
the extent the Corporation has paid Excess Amounts to Indemnitee, Indemnitee
shall be obligated to immediately reimburse the Corporation for such Excess
Amounts.
Notwithstanding anything contained herein to the contrary, the Corporation
shall not be obligated under the terms of this Agreement to indemnify
Indemnitee:
(a) or advance expenses to Indemnitee with respect to proceedings or
claims initiated or brought voluntarily by Indemnitee and not by way of
defense, except with respect to Proceedings brought to establish or enforce
a right to indemnification under this Agreement or any other statute or law
or otherwise, but such indemnification or advancement of expenses may be
provided by the Corporation in specific cases if the Board of Directors
finds it appropriate;
(b) if it is proved by final judgment in a court of law or other final
adjudication to have been based upon or attributable to the Indemnitee's in
fact having gained any personal profit or advantage to which he or she was
not legally entitled;
(c) for any expenses incurred by Indemnitee with respect to any
proceeding instituted by Indemnitee to enforce or interpret this Agreement,
if a court of competent jurisdiction determines that each of the material
assertions made by Indemnitee in such proceeding was not made in good faith
or was frivolous;
(d) for a disgorgement of profits made from the purchase and sale by
Indemnitee of securities pursuant to Section 16(b) of the Securities
Exchange Act of 1934, as amended, or similar provisions of any state
statutory law or common law; or
(e) for any Expenses, judgment, fine or penalty which the Corporation
is prohibited by applicable law from paying as indemnity or for any other
reason.
15. Scope. Notwithstanding any other provision of this Agreement, except
Paragraph 14 hereof, the Corporation hereby agrees to indemnify the Indemnitee
to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of this
Agreement, the Corporation's Code of Regulations or Articles of Incorporation,
or by statute. In the event of any change, after the date of this Agreement, in
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any applicable law, statute or rule which expands the right of an Ohio
corporation to indemnify a member of its board of directors or an officer, such
change shall be deemed to be within the purview of the Indemnitee's rights and
the Corporation's obligations under this Agreement. In the event of any change
in any applicable law, statute or rule which narrows the right of an Ohio
corporation to indemnify a member of its board of directors or an officer, such
change, to the extent not otherwise required by such law, statute or rule to be
applied to this Agreement, shall have no effect on this Agreement or the
parties' rights and obligations hereunder.
16. Notice to Insurers. If, at the time of the receipt of a written request
of Indemnitee pursuant to Paragraph 9 hereof, the Corporation has director and
officer liability insurance in effect, the Corporation shall give prompt notice
of the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Corporation shall
thereafter take all necessary or desirable action, using commercially reasonable
efforts, to cause such insurers to pay, on behalf of the Indemnitee, all amounts
payable as a result of such proceeding in accordance with the terms of such
policies.
17. Continuation of Rights and Obligations. All rights and obligations of
the Corporation and Indemnitee hereunder shall continue in full force and effect
despite the subsequent amendment or modification of the Corporation's Articles
of Incorporation or Code of Regulations, as such are in effect on the date
hereof, and such rights and obligations shall not be affected by any such
amendment or modification, any resolution of directors or shareholders of the
Corporation, or by any other corporate action which conflicts with or purports
to amend, modify, limit or eliminate any of the rights or obligations of the
Corporation and/or Indemnitee hereunder.
18. Amendment and Modification. This Agreement may only be amended,
modified or supplemented by the written agreement of the Corporation and
Indemnitee.
19. Assignment. This Agreement shall not be assigned by the Corporation or
Indemnitee without the prior written consent of the other party thereto, except
that the Corporation may freely assign its rights and obligations under this
Agreement to any subsidiary for whom Indemnitee is serving as a director and/or
officer thereof; provided, however, that no permitted assignment shall release
the assignor from its obligations hereunder. Subject to the foregoing, this
Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
including, without limitation, any successor to the Corporation by way of
merger, consolidation and/or sale or disposition of all or substantially all of
the capital stock of the Corporation.
20. Saving Clause. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, the
Corporation shall nevertheless indemnify Indemnitee as to Expenses, judgments,
fines, penalties and amounts paid in settlement with respect to any Proceeding
to the full extent permitted by any applicable portion of this Agreement that
shall not have been invalidated or by any other applicable law.
21. Counterparts. This Agreement may be executed in two or more fully or
partially executed counterparts each of which shall be deemed an original
binding the signer thereof against the other signing parties, but all
counterparts together shall constitute one and the same instrument. Executed
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signature pages may be removed from counterpart agreements and attached to one
or more fully executed copies of this Agreement. The parties may execute and
deliver this Agreement by facsimile signature, which shall have the same binding
effect as an original ink signature.
22. Notice. Indemnitee shall, as a condition precedent to his or her right
to be indemnified under this Agreement, give to the Corporation notice in
writing as soon as practicable of any claim made against him or her for which
indemnity will or could be sought under this Agreement. Notice to the
Corporation shall be directed to the Corporation at its headquarters located at
Xxx Xxxxxxxx Xxx, Xxxxxx, Xxxx 00000, Attention: Chairman (or such other address
as the Corporation shall designate in writing to Indemnitee). Notice shall be
deemed received three days after the date postmarked if sent by prepaid mail,
properly addressed. In addition, Indemnitee shall give the Corporation such
information and cooperation as it may reasonably require within Indemnitee's
power.
23. Applicable Law. All matters with respect to this Agreement, including,
without limitation, matters of validity, construction, effect and performance,
shall be governed by and construed in accordance with the laws of the State of
Ohio applicable to contracts made and to be performed therein between the
residents thereof (regardless of the laws that might otherwise be applicable
under principles of conflict of law).
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
duly executed and signed as of the day and year first above written.
INVACARE CORPORATION
THE "CORPORATION"
By
-------------------------
Its:
"INDEMNITEE"
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Schedule of Indemnity Agreements with Current Directors and Executive Officers
Name Position Date of Agreement
---- -------- -----------------
A. Xxxxxxx Xxxxx, III Chairman of the Board of Directors May 24, 2001
and Chief Executive Officer
Xxxxxx X. Xxxxxx President, Chief Operating Officer May 24, 2001
and Director
Xxxxxxx X. Xxxxxxxx Senior Vice President and Chief November 12, 2002
Financial Officer
Xxxxxx X. Xxxxxx, XX President - Invacare Technologies, May 24, 2001
Senior Vice President - Electronics
and Design Engineering and Director
Louis X.X. Xxxxxxx Senior Vice President - Sales & May 24, 2001
Marketing
Xxxxx X. Xxxxx Senior Vice President - Human February 24, 2003
Resources
Xxxxxx Xxxxxxx Vice President - Human Resources May 24, 2001
Xxxx X. Xxxxxx Vice President - Engineering and May 24, 2001
Product Development
Xxxxxxx X. Xxxxx Vice President - Distributed Products May 24, 2001
Xxxxx X. Xxxxxx Director May 24, 2001
Xxxxxxx X. Xxxxxxx Director May 24, 2001
Xxxxxxx Xxxxx Director May 24, 2001
Dr. C. Xxxxxx Xxxxxx Director January 24, 2003
Xx. Xxxxxxxxx X.Xxxxx Director May 24, 2001
Xxxx X. Xxxxxx Director May 24, 2001
Xxx X. Xxxxx, III Director May 24, 2001
X.X. Xxxxxx Director May 24, 2001
Xxxxxxx X. Xxxxx Director May 24, 2001
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