INDEMNIFICATION AGREEMENT
EXHIBIT
10.31
Indemnification
agreement between Stoneridge, Inc. and Xxxx X. Xxxxx, Xxxxxx X. Xxxxxxxxx,
Xxxxxxx X. Xxxx and Xxxxx X. Xxxxxxx.
This
Indemnification Agreement is made ________ __, 2009 by and between Stoneridge,
Inc., an Ohio corporation (the “Company”), and
(the “Employee”).
Background
Information
A. The
Employee is a key employee and/or officer of the Company and is a director of
Stoneridge Xxxxxx Holdings Ltd. and/or Stoneridge Xxxxxx Ltd. and/or Stoneridge
International Financial Services Company and, in those capacities and others, is
performing valuable services for the Company.
B. The
shareholders of the Company adopted an Amended and Restated Code of Regulations
(the “Regulations”) providing, among other things, for indemnification of the
officers or employees of the Company in accordance with Section 1701.13 of the
Ohio Revised Code (the “Statute”), including indemnification of a person who was
or is party, or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, 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 serving at the request of the Company as a
director, trustee, officer, employee, or agent of another corporation, domestic
or foreign.
C. The
Regulations and the Statute specifically provide that they are not exclusive,
and contemplate that contracts may be entered into between the Company and
officer and/or employees with respect to indemnification of officer and/or
employees.
D. The
Company and Employee recognize the substantial cost of carrying directors and
officers liability insurance (“D&O Insurance”) and that the Company may
elect not to carry D&O Insurance from time to time.
E. The
Company and Employee further recognize that directors, officers and employees
may be exposed to certain risks not covered by D&O Insurance.
F. These
factors with respect to the coverage and cost to the Company of D&O
Insurance and issues concerning the scope of indemnity under the Statute and
Regulations generally have raised questions concerning the adequacy and
reliability of the protection presently afforded to certain officers and
employees.
G. In
order to address such issues and induce the Employee to continue to serve as an
officer and/or employee of the Company or one or more of its subsidiaries, the
Company has determined to enter into this Indemnification Agreement with the
Employee.
Statement
of Agreement
In
consideration of the Employee’s continued service as an officer and/or employee
of the Company or one or more of its subsidiaries after the date of this
Indemnification Agreement, the Company and the Employee hereby agree as
follows:
Section
1. Indemnity of
Employee. Subject only to the limitations set forth in Section
2, below, the Company shall indemnify the Employee to the full extent not
otherwise prohibited by the Statute or other applicable law, including without
limitation indemnity:
(a) Against
any and all costs and expenses (including travel, legal, expert, and other
professional fees and expenses), judgments, damages, fines (including excise
taxes with respect to employee benefit plans), penalties, and amounts paid in
settlement actually and reasonably incurred by the Employee (collectively,
“Expenses”), in connection with any threatened, pending, or completed action,
suit or proceeding, or arbitration or other alternative dispute resolution
mechanism, whether domestic or foreign, whether civil, criminal, administrative,
or investigative, (each a “Proceeding”) to which the Employee is or at any time
becomes a party, or is threatened to be made a party, as a result, directly or
indirectly, of serving at any time: (i) as a director, officer, employee, or
agent of the Company; or (ii) at the request of the Company as a director,
officer, employee, trustee, fiduciary, manager, member, or agent of a
corporation, partnership, trust, limited liability company, employee benefit
plan, or other enterprise or entity, whether domestic or foreign;
and
(b) Otherwise
to the fullest extent that the Employee may be indemnified by the Company under
the Regulations and the Statute, including without limitation the
non-exclusivity provisions thereof.
Section
2. Limitations on
Indemnity. No indemnity pursuant to Section 1 shall be paid by
the Company:
(a) Except
to the extent that the aggregate amount of losses to be indemnified exceed the
aggregate amount of such losses for which the Employee is actually paid or
reimbursed pursuant to D&O Insurance, if any, which may be purchased and
maintained by the Company or any of its subsidiaries;
(b) On
account of any Proceeding in which judgment is rendered against the Employee for
an accounting of profits made from the purchase or sale of securities of the
Company pursuant to the provisions of Section 16(b) of the Securities Exchange
Act of 1934, as amended;
(c) On
account of the Employee’s conduct which is determined (pursuant to the Statute)
to have been knowingly fraudulent, deliberately dishonest, or willful
misconduct, except to the extent such indemnity is otherwise permitted under the
Statute;
(d) With
respect to any remuneration paid to the Employee determined, by a court having
jurisdiction in the matter in a final adjudication from which there is no
further right of appeal, to have been in violation of law;
(e) If
it shall have been determined by a court having jurisdiction in the matter, in a
final adjudication from which there is no further right of appeal, that
indemnification is not lawful;
(f) On
account of the Employee’s conduct to the extent it relates to any matter that
occurred prior to the time such individual became an employee of the Company;
or
(g) With
respect to Proceedings initiated or brought voluntarily by the Employee and not
by way of defense, except pursuant to Section 8 with respect to proceedings
brought to enforce rights or to collect money due under this Indemnification
Agreement; provided however that indemnity may be provided by the Company in
specific cases if the Board of Directors finds it to be
appropriate.
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In no
event shall the Company be obligated to indemnify the Employee pursuant to this
Indemnification Agreement to the extent such indemnification is prohibited by
applicable law.
Section
3. Advancement of
Expenses. Subject to Section 7 of this Indemnification
Agreement, the Expenses incurred by the Employee in connection with any
Proceeding shall be promptly reimbursed or paid by the Company as they become
due; provided that the Employee submits a written request to the Company for
such payment together with reasonable supporting documentation for such
Expenses; and provided further that the Employee, at the request of the Company,
submits to the Company an undertaking to the effect stated in Section 7, below,
and to reasonably cooperate with the Company concerning such
Proceeding.
Section
4. Insurance and Self
Insurance. The Company shall not be required to maintain
D&O Insurance in effect if and to the extent that such insurance is not
reasonably available or if, in the reasonable business judgment of the Board of
Directors, either (a) the premium cost of such insurance is disproportionate to
the amount of coverage, or (b) the coverage provided by such insurance is so
limited by exclusions that there is insufficient benefit from such
insurance. To the extent the Company determines not to maintain
D&O Insurance, the Company shall be deemed to be self-insured within the
meaning of Section 1701.13(E)(7) of the Statute and shall, in addition to the
Employee’s other rights hereunder, provide protection to the Employee similar to
that which otherwise would have been available to the Employee under such
insurance.
Section
5. Continuation of
Obligations. All obligations of the Company under this
Indemnification Agreement shall apply retroactively beginning on the date the
Employee commenced as, and shall continue during the period that the Employee
remains, an officer, employee or agent of the Company or is, as described above,
a director, officer, employee, trustee, fiduciary, manager, member, or agent of
another corporation, partnership, limited liability company, trust, employee
benefit plan, or other enterprise, whether domestic of foreign, and shall
continue thereafter as long as the Employee (whether still employed by the
Company or not) may be subject to any possible claim or any threatened, pending
or completed Proceeding as a result, directly or indirectly, of being such a
director, officer, employee, trustee, fiduciary, manager, member, or
agent.
Section
6. Notification and Defense of
Claim. Promptly after receipt by the Employee of notice of the
commencement of any Proceeding, if a claim is to be made against the Company
under this Indemnification Agreement, the Employee shall notify the Company of
the commencement thereof, but the delay or omission to so notify the Company
shall not relieve the Company from any liability which it may have to the
Employee under this Indemnification Agreement, except to the extent the Company
is materially prejudiced by such delay or omission. With respect to
any such Proceeding of which the Employee notifies the Company of the
commencement:
(a) The
Company shall be entitled to participate therein at its own
expense;
(b) The
Company shall be entitled to assume the defense thereof, jointly with any other
indemnifying party similarly notified, with counsel selected by the Company and
approved by the Employee, which approval shall not unreasonably be
withheld. After notice from the Company to the Employee of the
Company’s election to assume such defense, the Company shall not be liable to
the Employee under this Indemnification Agreement for any legal or other
Expenses subsequently incurred by the Employee in connection with the defense
thereof except as otherwise provided below. The Employee shall have
the right to employ his own counsel in such Proceeding, but the fees and
expenses of such counsel incurred after notice from the Company of its
assumption of such defense shall be the expenses of the Employee unless (i) the
employment of such counsel by the Employee has been authorized by the Company,
(ii) the Employee, upon the advice of counsel, shall have reasonably concluded
that there may be a conflict of interest between the Company and the Employee in
the conduct of such defense, or (iii) the Company has not in fact employed
counsel to assume such defense, in any of which cases the fees and expenses of
such counsel shall be the expense of the Company. The Company shall
not be entitled to assume the defense of any Proceeding brought by or on behalf
of the Company or as to which the Employee, upon the advice of counsel, shall
have made the conclusion described in (ii), above. In the event the
Company assumes the defense of any Proceeding as provided in this Section 6(b),
the Company may defend or settle such Proceeding as it deems appropriate;
provided, however, the Company shall not settle any Proceeding in any manner
which would impose any penalty or limitation on the Employee without the
Employee’s written consent, which consent shall not be unreasonably
withheld.
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(c) The
Company shall not be required to indemnify the Employee under this
Indemnification Agreement for any amounts paid in settlement of any Proceeding
without the Company’s written consent, which consent shall not be unreasonably
withheld.
(d) The
Employee shall cooperate with the Company in all ways reasonably requested by it
in connection with the Company fulfilling its obligations under this
Indemnification Agreement.
Section
7. Repayment of
Expenses. The Employee shall reimburse the Company for all
Expenses paid by the Company pursuant to Section 3 of this Indemnification
Agreement or otherwise in defending any Proceeding against the Employee if and
only to the extent that a determination shall have been made by a court in a
final adjudication from which there is no further right of appeal that the
Employee is not entitled to indemnification by the Company for such Expenses
under the Statute, the Regulations, this Indemnification Agreement or
otherwise.
Section
8. Enforcement. The
Company expressly confirms that it has entered into this Indemnification
Agreement and has assumed the obligations of this Indemnification Agreement in
order to induce the Employee to continue as a Employee and employee of the
Company and acknowledges that the Employee is relying upon this Indemnification
Agreement in continuing in that capacity. If the Employee is required
to bring an action to enforce rights or to collect money due under this
Indemnification Agreement, the Company shall reimburse the Employee for all of
the Employee’s reasonable fees and expenses (including legal, expert, and other
professional fees and expenses) in bringing and pursuing such action, unless the
court determines that each of the material assertions made by the Employee as a
basis for such action were not made in good faith or were
frivolous. The Company shall have the burden of proving that
indemnification is not required under this Indemnification Agreement, unless a
prior determination has been made by the shareholders of the Company or a court
of competent jurisdiction that indemnification is not required
hereunder.
Section
9. Rights Not
Exclusive. The indemnification provided by this
Indemnification Agreement shall not be deemed exclusive of any other rights to
which the Employee may be entitled under the Company’s articles of
incorporation, Regulations, any vote of the shareholders or disinterested
Employees of the Company, the Statute, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
Section
10. Separability. Each
of the provisions of this Indemnification Agreement is a separate and distinct
agreement and independent of the others so that, if any provisions of this
Indemnification Agreement shall be held to be invalid and unenforceable for any
reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions of this Indemnification
Agreement.
Section
11. Modification to Applicable
Law. In the event there is a change, after the date of this
Indemnification Agreement, in any applicable law (including without limitation
the Statute) which: (a) expands the right of an Ohio corporation to indemnify a
member of its Board of Directors or an Employee, such change shall be
automatically included within the scope of the Employee’s rights and Company’s
obligations under this Indemnification Agreement; or (b) 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, shall have no
effect on this Indemnification Agreement or the parties’ rights and obligations
hereunder.
Section
12. Partial
Indemnity. If the Employee is entitled under any provision of
this Indemnification Agreement to indemnity by the Company for some or a portion
of the Expenses actually or reasonably incurred by him in the investigation,
defense, appeal, or settlement of any Proceeding, but not for the total amount
thereof, the Company shall nevertheless indemnify the Employee for the portion
of such Expenses to which the Employee is entitled.
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Section
13. Governing
Law. This Indemnification Agreement shall be interpreted and
enforced in accordance with the laws of the State of Ohio, without regard to
choice of law principles.
Section
14. Venue. The
parties agree that venue for any litigation arising out of this Indemnification
Agreement or any document delivered in connection herewith shall be in a court
with subject matter jurisdiction located in Cuyahoga County, Ohio.
Section
15. Successors. This
Indemnification Agreement shall be binding upon, inure to the benefit of, and be
enforceable by and against the Employee and the Company and their respective
heirs, successors, and assigns. The Company shall require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of the Company, expressly, absolutely, and unconditionally to assume and
agree to perform this Indemnification Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession or assignment had taken place.
Section
16. Notices. All
notices and other communications required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given when received,
if personally delivered; when transmitted, if transmitted by electronic fax,
telecopy or similar electronic transmission method; the day after it is sent, if
mailed, first-class mail, postage prepaid.
Section
17. Amendment and
Modification. This Indemnification Agreement may be amended,
modified or supplemented only by a written agreement executed by the Company and
the Employee.
Section
18. Assignment. This
Indemnification Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns, but neither this Indemnification Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto without the prior written consent of the other party, nor
is this Indemnification Agreement intended to confer upon any other person
except the parties any rights or remedies hereunder.
Section
19. Prior
Agreements. This Indemnification Agreement shall supersede any
other agreements entered into prior to the date of this Indemnification
Agreement between the Company and the Employee concerning the subject matter of
this Indemnification Agreement.
Section
20. Consent to
Jurisdiction. The Company and the Employee each hereby
irrevocably consents to the jurisdiction of the courts of the State of Ohio for
all purposes in connection with any action or proceeding which arises out of or
relates to this Indemnification Agreement and hereby waives any objections or
defenses relating to jurisdiction with respect to any lawsuit or other legal
proceeding initiated in or transferred to such courts.
Section
21. Counterparts. This
Indemnification Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, and all of which shall together
constitute one and the same instrument.
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STONERIDGE,
INC.
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By:
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| Xxxxxxx X. Xxxxx | |||
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Chairman
of the Board of Directors
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EMPLOYEE:
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| ___________________________________ | |
| Printed Name __________________________ |
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