INDEMNIFICATION AGREEMENT
Exhibit 10.1
This
Indemnification Agreement (this “Agreement”) made this day of , 20 by and
between Xxxxx Industries, Inc., an Ohio corporation (the “Company”), and , a
member of the Board of Directors of the Company (the “Indemnitee”);
A. Section 1701.59 of the Ohio Revised Code provides that the business and affairs of a
corporation shall be managed by or under the direction of its Board of Directors;
B. The Company and the Indemnitee are each aware of the exposure to litigation of officers,
directors and representatives of the Company as such persons exercise their duties to the Company;
C. The Company and the Indemnitee are also aware of conditions in the insurance industry that
have affected and may affect in the future the Company’s ability to obtain appropriate directors’
and officers’ liability insurance on an economically acceptable basis;
D. The Company desires to continue to benefit from the services of highly qualified,
experienced and otherwise competent persons such as the Indemnitee; and
E. The Indemnitee desires to serve or to continue to serve the Company as a Director of the
Company, or, if requested to do so by the Company, as a director, officer, trustee, employee,
representative or agent of another corporation, joint venture, trust or other enterprise in which
the Company has a direct or indirect ownership interest, for so long as the Company continues to
provide on an acceptable basis adequate and reliable indemnification against certain liabilities
and expenses which may be incurred by the Indemnitee.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants herein
contained, the parties hereto agree as follows:
1. Indemnification.
(a) The Company shall indemnify the Indemnitee with respect to Indemnitee’s activities
as a director, officer, employee or agent, to the fullest extent permitted by law and/or the
Company’s Articles of Incorporation or Code of Regulations with respect to the Indemnitee’s
actions or inactions as a director, officer, employee or agent of the Company, whether prior
to, or after the date hereof, and/or as a person who is serving or has served at the request
of the Company as a director, officer, trustee, employee, representative or agent of another
corporation, joint venture, trust or other enterprise, domestic or foreign, in which the
Company has a direct or indirect ownership interest (an “affiliated entity”), against
expenses (including, without limitation, attorneys’ fees, judgments, fines, penalties,
assessments, damages and amounts paid in settlement) actually and reasonably incurred by the
Indemnitee (“Expenses”) in connection with any claim against the Indemnitee which is the
subject of any threatened, pending or completed action, suit or other type of proceeding,
whether civil, criminal, administrative,
investigative or otherwise and whether formal or informal (a “Proceeding”), to which
the
Indemnitee was or is threatened to be made a party by reason of anything done or not
done by the Indemnitee in any such capacity.
(b) The rights of the Indemnitee hereunder shall be in addition to any rights the
Indemnitee may now or hereafter have to indemnification by the Company or otherwise. More
specifically, the parties hereto intend that the Indemnitee shall be entitled to receive, as
determined by the Indemnitee, payment to the maximum extent permitted by one or any
combination of the following:
(i) the payments provided by the Company’s Amended Regulations in effect on the
date hereof, a copy of the relevant portions of which are attached hereto as Exhibit
A;
(ii) the payments provided by the Company’s Articles of Incorporation or the
Company’s Code of Regulations, or their equivalent in effect at the time Expenses
are incurred by the Indemnitee;
(iii) the payments allowable under Ohio law in effect at the date hereof or as
such laws may from time-to-time hereafter be amended;
(iv) the payments allowable under the law of the jurisdiction under which the
Company is incorporated at the time Expenses are incurred by the Indemnitee;
(v) the payments available under liability insurance obtained by the Company;
and
(vi) such other payments as are or may be otherwise available to the
Indemnitee.
Combination of two or more of the payments provided by (i) through (vi) shall be available
to the extent that the Applicable Document, as hereafter defined, does not require that the
payments provided therein be exclusive of other payments. The document or law providing for
any of the payments listed in items (i) through (vi) above is referred to in this Agreement
as the “Applicable Document”. The Company hereby undertakes to use its best efforts to
assist the Indemnitee, in all proper and legal ways, to obtain the payments selected by the
Indemnitee under items (i) through (vi) above.
(c) For purposes of this Agreement, references to an “other enterprise” shall include
employee benefit plans for employees of the Company, of any affiliated entity, or of its
subsidiaries without regard to ownership of such plans; references to “fines” shall include
any excise taxes assessed on the Indemnitee with respect to any employee benefit plan;
references to “serving at the request of the Company” shall include any service as a
director, officer, trustee, employee, representative or agent of the Company which imposes
duties on, or involves services by, the Indemnitee with respect to an employee benefit plan,
its participants or beneficiaries; references to the masculine shall include the feminine;
references to the singular shall include the plural and vice versa; and if the Indemnitee
acted in good faith and in a manner that the Indemnitee reasonably believed
to be in the interest of the participants and beneficiaries of an employee benefit
plan, the
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Indemnitee shall be deemed to have acted in a manner consistent with the standards
required for indemnification by the Company under the Applicable Documents.
2. Insurance. The Company shall maintain directors’ and officers’ liability insurance which is at least
as favorable to the Indemnitee as the policy in effect on the date hereof and for so long as the
Indemnitee’s services are covered hereunder, provided and to the extent that such insurance is
available on a reasonable commercial basis (taking into account the scope and amount of coverage
available relative to the cost). The Indemnitee shall, however, continue to be entitled to the
indemnification rights provided hereunder regardless of whether liability or other insurance
coverage is at any time obtained or retained by the Company. Any payments in fact made to the
Indemnitee under an insurance policy obtained or retained by the Company shall reduce the
obligation of the Company to make payments hereunder by the amount of the payments made under any
such insurance policy. In the event that insurance becomes unavailable in the amount or scope of
coverage of the policy in effect on the date hereof on a reasonable commercial basis and the
Company foregoes maintenance of all or a portion of such insurance coverage, the Company shall
stand as a self-insurer with respect to the coverage, or portion thereof, not retained, and shall
indemnify the Indemnitee against any loss arising out of the reduction or cancellation of such
insurance coverage.
3. Payment of Expenses. At the Indemnitee’s request, the Company shall pay the Expenses as and when incurred by the
Indemnitee, after receipt of written notice pursuant to Paragraph 6 hereof and an undertaking in
the form of Exhibit B attached hereto by or on behalf of the Indemnitee (i) to repay such amounts
so paid on the Indemnitee’s behalf if it shall ultimately be determined under the Applicable
Document that the Indemnitee is required to repay such Expenses and (ii) to reasonably cooperate
with the Company concerning the Proceeding. That portion of Expenses which represents attorneys’
fees and other costs incurred in defending any Proceeding shall be paid by the Company within
thirty (30) days of its receipt of such notice, together with reasonable documentation (consistent,
in the case of attorneys’ fees, with Company practice in payment of legal fees) evidencing the
amount and nature of such Expenses, subject to its also having received such a notice and
undertaking.
4. Additional Rights. The indemnification provided in this Agreement shall not be exclusive of any other
indemnification or right to which the Indemnitee may be entitled and shall continue after the
Indemnitee has ceased to occupy a position as an officer, director or representative as described
in Paragraph 1 above with respect to Proceedings relating to or arising out of the Indemnitee’s
acts or omissions during the Indemnitee’s service in such position.
5. Notice to Company. The Indemnitee shall provide to the Company prompt written notice, including a brief
description of any Proceeding brought, threatened, asserted or commenced against the Indemnitee
with respect to which the Indemnitee may assert a right to indemnification
hereunder; provided that failure to provide such notice shall not in any way limit the
Indemnitee’s rights under this Agreement unless, and only to the extent that, the Company did not
otherwise learn of such Proceeding and such failure by the Indemnitee to provide prompt notice
results in forfeiture by the Company of substantial defenses, rights or insurance coverage, or
otherwise materially prejudices the ability of the Company to defend against any claim asserted.
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6. Cooperation in Defense and Settlement. The Indemnitee shall not make any admission or effect any settlement with respect to a
Proceeding without the Company’s written consent unless the Indemnitee shall have determined to
undertake his or her own defense in such matter and has waived the benefits of this Agreement in
writing delivered to the Company. The Company shall not settle any Proceeding to which the
Indemnitee is a party in any manner which would impose any Expense on the Indemnitee without his or
her written consent. Neither the Indemnitee nor the Company will unreasonably withhold consent to
any proposed settlement. The Indemnitee shall fully cooperate with the Company and with the
Company’s insurers, in the defense and settlement of such Proceeding.
7. Assumption of Defense. Except as otherwise provided below, to the extent that it may wish, the Company jointly
with any other indemnifying party similarly notified will be entitled to assume control of the
Indemnitee’s defense in any Proceeding, with counsel mutually satisfactory to the Indemnitee and
the Company. After notice from the Company to the Indemnitee of the Company’s election so to assume
such defense, the Company will not be liable to the Indemnitee under this Agreement for Expenses
subsequently incurred by the Indemnitee in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. The Indemnitee shall have the
right to employ counsel in such 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 Indemnitee’s
expense unless:
(a) the employment of counsel by the Indemnitee has been authorized by the Company;
(b) the Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Indemnitee and the Company in the conduct of the defense of such
Proceeding; or
(c) the Company shall not have employed counsel promptly to assume the defense of such
Proceeding.
(d) In each of the cases set forth in items (a) through (c) above, the reasonable fees
and expenses of counsel shall be at the expense of the Company and subject to payment
pursuant to this Agreement. The Company shall not be entitled to assume the defense of the
Indemnitee in any Proceeding brought by or on behalf of the Company or as to which the
Indemnitee shall have reached the conclusion provided for in clause (b) above.
8. Enforcement. In the event that any dispute or controversy shall arise under this Agreement between the
Indemnitee and the Company with respect to whether the Indemnitee is entitled to indemnification in
connection with any Proceeding or with respect to the amount of Expenses incurred, then with
respect to each such dispute or controversy the Indemnitee may seek to enforce this Agreement
through legal action or, at the Indemnitee’s sole option and request, through arbitration. If
arbitration is requested, such dispute or controversy shall be submitted by the parties to binding
arbitration in the City of Akron, State of Ohio, before a single arbitrator agreeable to both
parties; provided that indemnification in respect to any claim, issue or matter in a Proceeding
brought against the Indemnitee by or in the right of the Company and as to which the Indemnitee
shall have been adjudged to be liable for negligence or misconduct in
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the performance of his duty
to the Company shall be submitted to arbitration only to the extent permitted under the Company’s
Code of Regulations and applicable law then in effect. If the parties cannot agree on a designated
arbitrator within fifteen (15) days after arbitration is requested in writing by either of them,
the arbitration shall proceed in the City of Akron, State of Ohio, before an arbitrator appointed
by the American Arbitration Association. In either case, the arbitration proceeding shall commence
promptly under the rules then in effect of that Association and the arbitrator agreed to by the
parties or appointed by that Association shall be an attorney other than an attorney who has, or is
associated with a firm having associated with it an attorney which has, been retained by or
performed services for the Company or the Indemnitee at any item during the five (5) years
preceding the commencement of arbitration. The award shall be rendered in such form that judgment
may be entered thereon in any court having jurisdiction thereof. The prevailing party shall be
entitled to prompt reimbursement of any costs and expenses (including, without limitation,
reasonable attorney’s fees) incurred in connection with such legal action or arbitration provided
that the Indemnitee shall not be obligated to reimburse the Company unless the arbitrator or court
which resolves the dispute determines that the Indemnitee acted in bad faith in bringing such
action or arbitration.
9. Exclusions. Notwithstanding the scope of indemnification which may be available to the Indemnitee from
time to time under any Applicable Document, no indemnification, reimbursement or payment shall be
required of the Company hereunder with respect to:
(a) any claim or any part thereof as to which the Indemnitee shall have been adjudged
by a court of competent jurisdiction from which no appeal is or can be taken, to have acted
or failed to act with deliberate intent to cause injury to the Company or with reckless
disregard for the best interests of the Company;
(b) any claim or any part thereof arising under Section 16(b) of the Exchange Act
pursuant to which the Indemnitee shall be obligated to pay any penalty, fine, settlement or
judgment;
(c) any obligation of the Indemnitee based upon or attributable to the Indemnitee
gaining in fact any personal gain, profit or advantage to which the Indemnitee was not
entitled; or
(d) any Proceeding initiated by the Indemnitee without the consent or authorization of
the Board of Directors of the Company, provided that this exclusion shall
not apply with respect to any claims brought by the Indemnitee (i) to enforce the
Indemnitee’s rights under this Agreement or (ii) in any Proceeding initiated by another
person or entity whether or not such claims were brought by the Indemnitee against a person
or entity who was otherwise a party to such Proceeding.
Nothing in this Paragraph 9 shall eliminate or diminish the Company’s obligations to advance that
portion of the Indemnitee’s Expenses which represent reasonable attorneys’ fees and other costs
incurred in defending any Proceeding pursuant to Paragraph 3 of this Agreement.
10. Extraordinary Transactions. The Company covenants and agrees that, in the event of any merger, consolidation or
reorganization in which the Company is not the surviving
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entity, any sale of all or substantially
all of the assets of the Company or any liquidation of the Company (each such event is hereinafter
referred to as an “extraordinary transaction”), the Company shall:
(a) Have the obligations of the Company under this Agreement expressly assumed by the
survivor, purchaser or successor, as the case may be, in such extraordinary transaction; or
(b) Otherwise adequately provide for the satisfaction of the Company’s obligations
under this Agreement, in a commercially reasonable manner.
11. No Personal Liability. The Indemnitee agrees that neither the directors nor any officer, employee, representative
or agent of the Company shall be personally liable for the satisfaction of the Company’s
obligations under this Agreement, and the Indemnitee shall look solely to the assets of the Company
for satisfaction of any claims hereunder.
12. Severability. If any provision, phrase, or other portion of this Agreement should be determined by any
court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, and
such determination should become final, such provision, phrase or other portion shall be deemed to
be severed or limited, but only to the extent required to render the remaining provisions and
portions of this Agreement enforceable, and this Agreement as thus amended shall be enforced to
give effect to the intention of the parties insofar as that is possible.
13. Subrogation. In the event of any payment under this Agreement, the Company shall be subrogated to the
extent thereof to all rights to indemnification or reimbursement against any insurer or other
entity or person vested in the Indemnitee, who shall execute all instruments and take all other
action as shall be reasonably necessary for the Company to enforce such rights.
14. Governing
Law. The parties hereto agree that this Agreement shall be construed and enforced in accordance
with and governed by the laws of the State of Ohio.
15. Notices. All notices, requests, demands and other communications hereunder shall be in writing and
shall be considered to have been duly given if delivered by hand and receipted for by the party to
whom the notice, request, demand or other communication shall have been directed, or mailed by
certified mail, return receipt requested, with postage prepaid:
| (a) | If to the Company, to: | Xxxxx Industries, Inc. | ||||
| 0000 Xxxxx Xxxx Xxxxxx | ||||||
| Xxxxx, Xxxx 00000 | ||||||
| Attention: President | ||||||
| With a copy to: | Xxxxxxx Xxxxxxxxxxx Xxxxxx & Aronoff LLP | |||||
| 000 Xxxxxx Xxxxxx, Xxxxx 0000 | ||||||
| Xxxxxxxxx, Xxxx 00000 | ||||||
| Attention: Xxxxx X. Xxxxxxx | ||||||
| (b) | If to the Indemnitee, to: | |||||
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or to such other or further address as shall be designated from time to time by the Indemnitee or
the Company to the other.
16. Termination. This Agreement may be terminated by either party upon not less than sixty (60) days prior
written notice delivered to the other party, but such termination shall not in any way diminish the
obligations of the Company hereunder with respect to the Indemnitee’s activities prior to the
effective date of the termination.
17. Amendments. This Agreement and the rights and duties of the Indemnitee and the Company hereunder may
not be amended, modified or terminated except by written instrument signed and delivered by the
parties hereto.
18. Binding Effect. This Agreement is and shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, successors and assigns.
19. Entire
Agreement. This Agreement contains the entire agreement between the parties
hereto and with respect to the subject matter hereof this Agreement replaces and
supersedes all prior representations, warranties, agreements, and understandings, oral and
written, with respect to these matters.
IN WITNESS WHEREOF, the undersigned have executed this Agreement in triplicate as of the date
first above written.
| INDEMNITEE | XXXXX INDUSTRIES, INC. | |||||
| By: | ||||||
Title: Director |
||||||
| Title: | ||||||
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Exhibit A
From the Xxxxx Industries, Inc. Amended and Restated Code of Regulations
Article VI
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
The Company shall indemnify any director or officer and any former director or officer of the
Company and any such director or officer who is or has served at the request of the Company as a
director, officer or trustee of another corporation, partnership, joint venture, trust or other
enterprise (and his heirs, executors and administrators) against expenses, including attorney’s
fees, judgments, fines and amounts paid in settlement, actually and reasonably incurred by him by
reason of the fact that he is or was such director, officer or trustee in connection with any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative to the full extent permitted by applicable law. The
indemnification provided for herein shall not be deemed to restrict the right of the Company (i) to
indemnify employees, agents and others to the extent not permitted by such law, (ii) to purchase
and maintain insurance or furnish similar protection on behalf of or for any person who is or was
serving at the request of the Company as a director, officer, trustee, employee or agent of another
corporation, joint venture, partnership, trust or other enterprise against any liability asserted
against him or incurred by him in any such capacity or arising out of his status as such, and (iii)
to enter into such agreements with persons of the class identified in clause (ii) above
indemnifying them against any and all liabilities (or such lesser indemnification as may be
provided in such agreements) asserted against or incurred by them in such capacities.
[Effective as of April 26, 2001]
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Exhibit B
FORM OF UNDERTAKING
THIS UNDERTAKING has been entered into by (hereinafter “Indemnitee”) pursuant to
an Indemnification Agreement dated , (the “Indemnification Agreement”), between
Xxxxx Industries, Inc. (hereinafter “Company”), an Ohio corporation, and Indemnitee.
RECITALS:
A. Pursuant to the Indemnification Agreement, Company agreed to pay Expenses (within the
meaning of the Indemnification Agreement) as and when incurred by Indemnitee in connection with any
claim against Indemnitee which is the subject of any threatened, pending or completed action, suit
or proceeding, whether civil, criminal or investigative, to which Indemnitee was, is or is
threatened to be made a party by reason of facts which include Indemnitee’s being or having been a
director, officer or representative (within the meaning of the Indemnification Agreement) of
Company;
B. Such a claim has arisen against Indemnitee and Indemnitee has notified Company thereof in
accordance with the terms of Section 5 of the Indemnification Agreement (hereinafter the
“Proceeding”);
C. Indemnitee believes that Indemnitee should prevail in this Proceeding and it is in the
interest of both Indemnitee and Company to defend against the claims against Indemnitee thereunder;
NOW, THEREFORE, Indemnitee hereby agrees that in consideration of Company’s advance payment of
Indemnitee’s Expenses incurred prior to a final disposition of the Proceeding, Indemnitee hereby
undertakes to reimburse Company for any and all expenses paid by Company on behalf of Indemnitee
relating to the Proceeding in the event that Indemnitee is determined under the Applicable Document
(within the meaning of the Indemnification Agreement) not to be entitled to indemnification for
such Expenses pursuant to the Indemnification Agreement and applicable law, provided that if
Indemnitee is entitled under the Applicable Document to indemnification for some or a portion of
such Expenses, Indemnitee’s obligation to reimburse Company shall only be for those Expenses for
which Indemnitee is determined not to be entitled to indemnification. Such reimbursement or
arrangements for reimbursement by Indemnitee shall be consummated within ninety (90) days after a
determination that Indemnitee is not entitled to indemnification and reimbursement pursuant to the
Indemnification Agreement and applicable law
IN WITNESS WHEREOF, the undersigned has set his hand this day of , .
| Indemnitee | ||
| Director |
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