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EXHIBIT 10.13
INDEMNITY AGREEMENT
By this INDEMNITY AGREEMENT (this "Agreement"), Xxxxxx Steel Company, a
Delaware corporation (the "Company"), and the undersigned member of its Board
of Directors ("Indemnitee") warrant, covenant and agree as follows:
WHEREAS, Indemnitee is a member of the Board of Directors of the
Company and in such capacity is performing a valuable service for the Company;
and
WHEREAS, the Company's Certificate of Incorporation provides for
indemnification of directors and others to the fullest extent authorized by the
Delaware General Corporation Law ("DGCL"); and
WHEREAS, the DGCL provides that the indemnification rights provided
thereunder are not exclusive, and that agreements may be entered into between
Company and the members of its Board of Directors with respect to
indemnification; and
WHEREAS, in order to induce Indemnitee to serve as a member of the
Board of Directors of the Company, the Company desires to enter into this
contract with Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee's continued service as a
director after the date hereof the parties hereto agree as follows:
1. Indemnification of Indemnitee. Subject to Section 2 below, the
Company shall hold harmless and indemnify Indemnitee against any and all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee in connection with
any threatened, pending or completed action, suit or proceeding, whether,
civil, criminal, administrative or investigative to which Indemnitee is, was or
at any time becomes a party, or is threatened to be made a party, by reason of
the fact that Indemnitee is, was or at any time becomes a director, officer,
employee or agent of the Company, or is or was serving or at any time serves at
the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, to the
extent currently set forth in the Company's Certificate of Incorporation, a copy
of which is attached hereto as Exhibit A. No amendment or termination of the
Company's Certificate of Incorporation shall affect or terminate the contracted
rights granted to the Indemnitee hereunder.
2. Limitations on Indemnification. No indemnity pursuant to Section 1
hereof shall be paid by the Company:
(a) Except to the extent the aggregate of losses to be
indemnified hereunder exceeds the amount of losses for which the
Indemnitee is indemnified pursuant to any policy of insurance purchased
and maintained by the Company;
(b) In respect to remuneration paid to Indemnitee if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(c) On account of any suit in which final judgment is rendered
against Indemnitee or an accounting of profits made from the purchase or
sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any law; or
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(d) If a final decision by a court having jurisdiction in
the matter shall determine that such indemnification is not lawful;
3. Continuation of Indemnification. All obligations of the Company
hereunder shall continue during the period Indemnitee is a director, officer,
employee or agent of the Company (or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and shall continue
thereafter so long as Indemnitee shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that Indemnitee was a director
of the Company or serving in any other capacity referred to herein.
4. Notification and Defense of Claim. Indemnitee shall promptly
notify the Company of any matter which is or may be the subject of any
indemnification claim hereunder. Promptly after receipt by Indemnitee of notice
of the commencement of any action, suit or proceeding, Indemnitee will notify
the Company thereof. With respect to any such action, suit or proceeding:
(a) The Company will be entitled to participate therein at
its own expense;
(b) Except as otherwise provided below, to the extent that it
may wish, the Company jointly with any other indemnifying party may
assume the defense thereof, with counsel reasonably satisfactory to
Indemnitee. After notice from the Company to Indemnitee of its election
so to assume the defense thereof, the Company will not be liable to
Indemnitee for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable
costs of investigation or as otherwise provided below. Indemnitee shall
have the right to employ counsel in such action, suit or 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 Indemnitee unless (i) the employment of counsel by Indemnitee has
been authorized by the Company, (ii) Indemnitee shall have reasonably
concluded that there may be a material conflict of interest between the
Company and Indemnitee in the conduct of the defense of such action or
(iii) 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 borne by the Company. The Company shall not be entitled
to assume the defense of any action, suit or proceeding brought by or on
behalf of the Company or as to which Indemnitee shall have made the
determination provided for in (ii) above.
(c) The Company shall not be liable to indemnify Indemnitee
under the 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 material
penalty or limitation on Indemnitee without Indemnitee's written
consent. Neither the Company nor Indemnitee will unreasonably withhold
its or his consent to any settlement proposed by the other of any matter
for which indemnity is provided hereunder, including any settlement
including a penalty or limitation on the Indemnitee.
5. Prepaid Expenses. The expenses (including attorneys' fees)
incurred by Indemnitee in investigating, defending, or appealing any
threatened, pending or completed action, suit or proceeding covered hereunder,
whether civil, criminal, administrative or investigative, including without
limitation any action by or in the right of the Company (other than expenses
to be paid directly by the Company in assuming the defense of any matter
covered hereby under Section 4(b) hereof), shall be paid in advance by the
Company.
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6. Repayment of Expenses. Indemnitee shall reimburse the Company for
all expenses paid by the Company in defending any civil or criminal action,
suit or proceeding against Indemnitee in the event and only to the extent that
it shall be finally determined that Indemnitee is not entitled to be
indemnified by the Company for such expenses under this Agreement or otherwise.
7. Other Rights and Remedies. The rights provided by any provision of
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under any provision of law or of the Company's
Certificate of Incorporation, any Bylaw, this or other agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while occupying any of
the positions or having any of the relationships referred to in Section 1 of
this Agreement, and shall continue after Indemnitee has ceased to occupy such
position or have such relationship.
8. Enforcement. In the event Indemnitee is required to bring any
action to enforce rights or to collect monies due under this Agreement and is
successful in such action, the Company shall reimburse Indemnitee for all of
Indemnitee's reasonable fees and expenses in bringing and pursuing such action.
9. Separability. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
10. Miscellaneous. This Agreement shall be interpreted and enforced in
accordance with the laws of Delaware. This Agreement shall be binding upon
Indemnitee and upon Company, its successors and assigns, and shall inure to the
benefit of Indemnitee, his heirs, personal representatives and assigns and to
the benefit of the Company, its successors and assigns. No amendment,
modification, termination or cancellation of this Agreement, other than
pursuant to Section 9, shall be effective unless in writing signed by both
parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of , 1997.
XXXXXX STEEL COMPANY
By
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Its
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Indemnitee
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