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EXHIBIT 10.14
WASTEQUIP, INC.
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INDEMNITY AGREEMENT
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THIS AGREEMENT is made as of the ________ day of ___________________,
by and between WASTEQUIP, INC., an Ohio corporation (the "Corporation"), and
_____________________________ ("Indemnitee"), a Director and/or Executive
Officer of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
Directors and/or Executive Officers the most capable persons available; and
WHEREAS, the substantial increase in corporate litigation subjects
directors and officers to expensive litigation risks at the same time that the
availability of directors' and officers' liability insurance has been severely
limited; and
WHEREAS, it is now the express policy of the Corporation to indemnify
its Directors and/or Executive 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 have
entered into settlements of derivative suits 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 service
as a Director and/or Executive Officer to have adequate protection, and the
Corporation desires Indemnitee to serve in such capacity; and
WHEREAS, the Ohio Revised Code Section 1701.13(E) provides that
indemnification of directors and officers of a corporation may be authorized by
agreement, and thereby contemplates that contracts of this nature may be entered
into between the Company and Indemnitee with respect to indemnification of
Indemnitee as a Director and/or Executive Officer of the Corporation.
NOW, THEREFORE, 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 Executive Officer of the Corporation for so long as he is
duly elected or appointed or until such time as he tenders his resignation in
writing.
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2. DEFINITIONS. As used in this Agreement:
(a) 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 Executive Officer of the Corporation, by reason of any
action taken by him or of any inaction on his part while acting as such a
Director and/or Executive Officer, or by reason of the fact that he is or was
serving at the request of the Corporation as a director, partner, trustee,
officer, employee or agent of another corporation, domestic or foreign,
non-profit or for-profit, partnership, joint venture, trust or other enterprise;
in each case whether or not he 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.
(b) 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 8 of this Agreement, but shall not include the
amount of judgments, fines or penalties against or settlements paid by
Indemnitee.
(c) 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 and/or Executive Officer of the
Corporation which imposes duties on, or involves services by, such Director
and/or Executive 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 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 Executive Officer of the Corporation, or
is or was serving at the request of the Corporation as a director, partner,
trustee, officer, employee or agent of another corporation, domestic or foreign,
non-profit or for-profit, 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 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 conduct was unlawful. The termination of any such
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
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Indemnitee 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 Corporation, and
with respect to any criminal proceeding, that such person had reasonable cause
to believe that his 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 Executive Officer of the Corporation, or is or was serving at
the request of the Corporation as a director, partner, trustee, officer,
employee, or agent of another corporation, domestic or foreign, non-profit or
for-profit, partnership, joint venture, trust or other enterprise, against all
Expenses actually and reasonably incurred by Indemnitee in connection with the
defense or settlement of such Proceeding, but only if he acted in good faith and
in a manner which he 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 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 Executive Officer of the Corporation, or
is or was serving at the request of the Corporation as a director, partner,
trustee, officer, employee, or agent of another corporation, domestic or
foreign, non-profit or for-profit, 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 acted in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation.
6. 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.
7. ADVANCES OF EXPENSES. Any Expenses incurred by or on behalf of
Indemnitee pursuant to Paragraphs 3 and 4 in any Proceeding shall be paid by the
Corporation in advance upon the written request of Indemnitee if Indemnitee
shall undertake to repay such amount to the extent that it is ultimately
determined that Indemnitee is not entitled to indemnification hereunder.
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8. RIGHT OF INDEMNITEE TO INDEMNIFICATION UPON APPLICATION; PROCEDURE
UPON APPLICATION. Any indemnification under Paragraphs 3, 4 and 5 shall be made
no later than thirty (30) days after receipt by the Corporation of the written
request of Indemnitee, unless a determination is made within said thirty-day
period by (a) the Board of Directors by a majority vote of a quorum consisting
of directors who were not parties to such Proceeding, or (b) independent legal
counsel, agreed to by the Corporation, in a written opinion (which counsel shall
be appointed if such a quorum is not obtainable), that the Indemnitee has not
met the relevant standards for indemnification set forth in Paragraphs 3, 4 or
5. Such independent legal counsel shall not be an attorney, or a firm having
associated with it an attorney, who has been retained by or who has performed
services for the Corporation, or any person to be indemnified within the past
five years.
The right to indemnification or advances as provided by this
Agreement shall be enforceable by Indemnitee in any court of competent
jurisdiction. 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, and the burden of
proving that the relevant standards have not been met by Indemnitee shall be on
the Corporation. Neither the failure of the Corporation (including its Board of
Directors or independent legal counsel) prior to the commencement of such action
to have made a determination that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Corporation (including its Board of Directors or
independent legal counsel) that Indemnitee has not met such applicable standard
of conduct, shall (i) constitute a defense to the action, (ii) create a
presumption that Indemnitee has not met the applicable standard of conduct, or
(iii) otherwise alter the presumption in favor of Indemnitee referred to in the
preceding sentence. Indemnitee's expenses reasonably incurred in connection with
successfully establishing his right to indemnification, in whole or in part, in
any such action shall also be indemnified by the Corporation.
9. 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 ("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 Commission in connection with the registration for sale of
any Shares 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 Shares 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.
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10. 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 official capacity and as to action in another capacity while
holding such office.
The indemnification under this Agreement shall continue as to
Indemnitee even though he may have ceased to be a Director and/or Executive
Officer and shall inure to the benefit of the heirs, executors and personal
representatives of Indemnitee.
11. 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 him or amounts actually and reasonably paid in settlement
by him 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.
12. 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.
13. 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.
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14. AMENDMENT AND MODIFICATION. This Agreement may only be amended,
modified or supplemented by the written agreement of the Corporation and
Indemnitee.
15. 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 executive 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 Shares of the Corporation.
16. 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.
17. 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
signature pages may be removed from counterpart agreements and attached to one
or more fully executed copies of this Agreement.
18. NOTICE. Indemnitee shall, as a condition precedent to his right to
be indemnified under this Agreement, give to the Corporation notice in writing
as soon as practicable of any claim made against him 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 0000 Xxxxxxx
Xxxxxxxx, Xxxxxxxxx, 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.
19. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Ohio.
* SIGNATURE PAGE FOLLOWS *
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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.
WASTEQUIP, INC.
the "CORPORATION"
By:___________________________________
Name:______________________________
Title:_____________________________
"INDEMNITEE"
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Director and/or Executive Officer
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