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Exhibit 10.5
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INDEMNIFICATION AGREEMENT
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AGREEMENT between AMCAST INDUSTRIAL CORPORATION, an Ohio corporation
(the "Company"), and __________________ (the "Indemnitee").
WHEREAS, it is essential to the Company to retain and attract as
directors the most capable persons available;
WHEREAS, both the Company and Indemnitee recognize the increased risk of
litigation and other claims being asserted against directors of public companies
in today's environment;
WHEREAS, basic protection against undue risk of personal liability of
directors heretofore has been provided through insurance coverage providing
reasonable protection at reasonable cost, and Indemnitee has relied on the
availability of such coverage; but as a result of substantial changes in the
marketplace for such insurance it has become increasingly more difficult to
obtain such insurance on terms providing reasonable protection at reasonable
cost;
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, the Company wishes to provide in this
Agreement for the indemnification of Indemnitee to the full extent permitted by
law;
NOW, THEREFORE, in consideration of the premises and of Indemnitee
continuing to serve the Company directly or, at its request, with another
enterprise, and intending to be legally bound hereby, the parties hereto agree
as follows:
1. CERTAIN DEFINITIONS.
(a) CHANGE IN CONTROL: means and shall be deemed to have occurred on
(i) the date of approval by shareholders of the Company of a definitive
agreement providing either for the merger or consolidation of the Company
into or with another corporation, if the Company will not be surviving
corporation or will become a subsidiary of another corporation, or for the
sale of all or substantially all of the assets of the Company; (ii) the
date upon which the Company is provided a copy of a Schedule 13D (filed
pursuant to Section 13(d) of the Securities Exchange Act of 1934)
indicating that a group or person has become the beneficial owner of 20%
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or more of the outstanding voting shares of the Company or if no such
Schedule 13D is filed, the date the Company first learns that a group or
person has become the beneficial owner of 20% or more of such shares; or
(iii) the date of a change in the composition of the Board of Directors of
the Company such that individuals who were members of the Board of
Directors on the date two years prior to such change (or who were
subsequently elected to fill a vacancy in the Board, or were subsequently
nominated for election by the Company's shareholders, by the affirmative
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of such two year period) no longer constitute a
majority of the Board of Directors of the Company.
(b) CLAIM: any threatened, pending or completed action, suit or
proceeding, or any investigation, whether conducted by the Company or any
other party, that Indemnitee in good faith believes might lead to the
institution of any such action, suit or proceeding, whether civil,
criminal, administrative, investigative or other.
(c) EXPENSES: include attorneys' fees and all other costs, expenses
and obligations paid or incurred in connection with investigating,
defending, being a witness in or participating in (including on appeal) or
preparing to defend, being a witness in or participant in any Claim
relating to any Indemnifiable Event (including all interest, assessments
and other charges paid or payable in connection with or in respect of any
of the foregoing).
(d) JUDGMENTS: include judgments, fines, penalties and amounts paid in
settlement that are paid or payable in connection with any Claim relating
to any Indemnifiable Event.
(e) INDEMNIFIABLE EVENT: any event or occurrence related to the fact
that Indemnitee is or was a director of the Company, or is or was serving
at the request of the Company as a director, trustee, officer, employee,
agent or representative 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.
(f) REVIEWING PARTY: any appropriate person or body consisting of a
member or members of the Company's Board of Directors or any other person
or body appointed
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by the Board (including the special, independent counsel referred to in
Section 4) who is not a party to the particular Claim for which Indemnitee
is seeking indemnification.
2. SCOPE OF INDEMNIFICATION.
(a) BASIC INDEMNIFICATION ARRANGEMENT. In the event Indemnitee was, is
or becomes a party to or witness or other participant in, or is threatened
to be made a party to or witness or other participant in, a Claim by reason
of (or arising in part out of) an Indemnifiable Event, the Company shall
indemnify Indemnitee to the fullest extent permitted by law as soon as
practicable but in any event no later than thirty days after written demand
is presented to the Company against any and all Judgments arising from or
relating to such Claim.
(b) EXPENSES. Any and all Expenses and any and all expenses referred
to in Section 2(c) shall be paid by the Company promptly as they are
incurred by Indemnitee (any such payment of expenses by the Company is
hereinafter referred to as an "Expense Advance"). Indemnitee hereby agrees
to repay the amount of Expenses so paid if it is proved by clear and
convincing evidence in a court of competent jurisdiction that his 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. Indemnitee hereby further agrees to
reasonably cooperate with the Company concerning any Claim.
(c) INDEMNIFICATION FOR ADDITIONAL EXPENSES. The Company shall
indemnify Indemnitee against any and all expenses (including attorneys'
fees) which are incurred by Indemnitee in connection with any claim
asserted against or action brought by Indemnitee for (i) indemnification of
Expenses or Judgments or advance payment of Expenses by the Company under
this Agreement or under any other agreement, the Company's Regulations,
statute or rule of law now or hereafter in effect relating to claims for
Indemnifiable Events and/or (ii) recovery under any directors and officers
liability insurance policy or policies maintained by the Company,
regardless of whether Indemnitee ultimately is determined to be entitled to
such indemnification, advance expense payment or insurance recovery, as the
case may be.
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(d) PARTIAL INDEMNITY. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion
of the Judgments arising from or relating to a Claim but not, however, for
all of the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion thereof to which Indemnitee is entitled.
(e) INDEMNIFICATION OF SUCCESSFUL DEFENSE EXPENSES. 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, including dismissal without prejudice, Indemnitee
shall be indemnified against all Expenses incurred in connection therewith.
3. REVIEWING PARTY DETERMINATIONS.
(a) GENERAL RULES. Notwithstanding the provisions of Section 2, 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
opinion, in any case in which the special, independent counsel referred to
in Section 4 hereof is involved) that Indemnitee would not be permitted to
be indemnified under applicable law; 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
Indemnitee would not be permitted to be indemnified under applicable law
shall not be binding until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed) and any such determination by the Reviewing Party
shall be modified, to the extent necessary, to conform to such final
judicial determination.
(b) ELECTION OF REVIEWING PARTY. If there has not been a Change in
Control, the Reviewing Party shall be selected by the Board of Directors.
If there has been such a Change in Control; the Reviewing Party shall be
the special, independent counsel referred to in Section 4 hereof.
(c) JUDICIAL REVIEW. If there has been no determination by the
Reviewing Party or if the Reviewing Party determines that Indemnitee
substantively would not
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be permitted to be indemnified in whole or in part under applicable law,
Indemnitee shall have the right to commence litigation in any court in the
State of Ohio 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.
(d) BURDEN OF PROOF. In connection with any determination by the
Reviewing Party pursuant to Section 3(a), or by a court of competent
jurisdiction pursuant to Section 3(c) or otherwise, as to whether
Indemnitee is entitled to be indemnified hereunder, the burden of proof
shall be on the Company to establish by clear and convincing evidence that
Indemnitee is not so entitled.
4. CHANGE IN CONTROL. The Company agrees that if there is a Change in
Control of the Company (other than a Change in Control that has been approved by
a majority of the Company's Board of Directors who were directors immediately
prior to such Change in Control) then with respect to all matters thereafter
arising concerning the rights of Indemnitee to indemnity payments under this
Agreement or under any other agreement, the Company's Regulations, statute or
rule of law now or hereafter in effect relating to Claims for Indemnifiable
Events, the Company shall seek legal advice only from special, independent
counsel selected by Indemnitee and approved by the Company (which approval shall
not be unreasonably withheld), and who has not otherwise performed services for
the Company within the last five years (other than in connection with such
matters) or Indemnitee. The Company agrees to pay the reasonable fees of the
special, independent counsel referred to above and to indemnify fully such
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.
5. NO PRESUMPTION. For purposes of this Agreement, the termination of
any claim, action, suit or proceeding, by judgment, order, settlement (whether
with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by applicable
law.
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6. NON-EXCLUSIVITY. The rights of Indemnitee hereunder shall be in
addition to any other rights Indemnitee may now or hereafter have to
indemnification by the Company.
7. LIABILITY INSURANCE. The rights of the Indemnitee hereunder shall
also be in addition to any other rights Indemnitee may now or hereafter have
under policies of insurance maintained by the Company or otherwise. To the
extent the Company maintains an insurance policy or policies providing directors
or 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 available for any Company director.
8. LIABILITY STANDARDS. This Agreement shall be construed on the basis
of the duties owed by Indemnitee as a director of the Company, and the standards
for determining liability in damages for a breach thereof, which apply to each
particular Claim. The parties acknowledge that changes in such duties or such
liability standards may result in an expansion or contraction of the Company's
indemnification exposure hereunder.
9. AMENDMENTS, ETC. 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 other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.
10. SUBROGATION. 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.
11. NO DUPLICATION OF PAYMENTS. 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 Company's Regulations or otherwise) of the
amounts otherwise indemnifiable hereunder.
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12. BINDING EFFECT, ETC. 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 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, spouses, heirs, and personal and legal
representatives. This Agreement shall continue in effect regardless of whether
Indemnitee continues to serve as a director of the Company or as a director,
trustee, officer, agent or representative of any other enterprise at the
Company's request.
13. SEVERABILITY. 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.
14. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Ohio applicable to
contracts made and to be performed in such state without giving effect to the
principles of conflicts of laws.
15. SHAREHOLDER APPROVAL. This Agreement will automatically terminate
on December 31, 1987 unless prior thereto it has been approved by the
affirmative vote of the holders of a majority of the outstanding Common Shares
of the Company.
Executed and effective as of this ____ day of _________ , 1987.
AMCAST INDUSTRIAL CORPORATION
By__________________________________
Xxx X. Xxxxxxxx
Chairman of the Board and
Chief Executive Officer
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