EXHIBIT 10viii
HON INDUSTRIES INC.
INDEMNITY AGREEMENT
This Indemnity Agreement, effective as of ___________, 20___ (this
"Agreement"), between HON INDUSTRIES Inc., an Iowa corporation ("Corporation"),
and ______________ ("Indemnitee").
WITNESSETH:
WHEREAS, Indemnitee is or will become a director or an officer of the
Corporation and, as such, is or will be performing valuable services for or on
behalf of the Corporation; and
WHEREAS, Indemnitee is willing to perform or continue to perform such
services, and may from time to time perform additional services, for or on
behalf of the Corporation on the condition that Indemnitee is indemnified as
provided in this Agreement; and
WHEREAS, it is intended that Indemnitee shall be paid promptly by the
Corporation all amounts necessary to fully effectuate the indemnity provided in
this Agreement; and
WHEREAS, all capitalized terms used in this Agreement are used herein
as defined in Section 15 hereof;
NOW THEREFORE, in order to induce Indemnitee to serve or continue to
serve the Corporation as a director or an officer and in consideration of the
mutual promises set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Corporation and the
Indemnitee hereby agree as follows:
1. SERVICES BY INDEMNITEE. Indemnitee agrees to serve as a director
or an officer of the Corporation for so long as Indemnitee is duly appointed or
elected and qualified in accordance with the applicable provisions of the
Articles of Incorporation, as amended ("Articles of Incorporation"), and
By-laws, as amended ("By-laws"), of the Corporation or until such time as
Indemnitee resigns or otherwise ceases to be a director or an officer.
Indemnitee may from time to time also perform other services at the request or
for the convenience of the Corporation. Following the termination of
Indemnitee's service as a director or an officer of the Corporation by reason of
resignation or otherwise, the Corporation shall continue to be obligated to
indemnify Indemnitee under this Agreement for acts occurring while Indemnitee
was serving as a director or an officer of the Corporation. Nothing in this
Agreement shall confer upon the Indemnitee the right to continue in the employ
of the Corporation or affect the right of the Corporation to terminate the
Indemnitee's employment at any time in the sole discretion of the Corporation
with or without cause.
2. INDEMNIFICATION. Subject to the limitations set forth in this
Section 2 and in Section 6 of this Agreement, the Corporation hereby agrees to
indemnify Indemnitee to the fullest extent permitted by applicable law and the
Articles of Incorporation and the By-laws, as the same may be amended from time
to time from and against any and all Expenses and Liabilities 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, or
otherwise with respect to any Proceeding relating to or arising out of
Indemnitee's being or having been a director or an officer of the Corporation or
as to action taken in another capacity while serving as such director or
officer. The right to indemnification conferred in this Agreement shall be
presumed to have been relied upon by Indemnitee in Indemnitee's agreeing to
serve, or serving, or continuing to serve, or having served, as a director or an
officer of the Corporation and shall be enforceable as a contract right. Without
in any way limiting the scope of the indemnification otherwise provided by this
Section 2, if and whenever Indemnitee is or was a party or is threatened to be
made a party to any Proceeding (including without limitation any Proceeding
brought by or in the right of the Corporation) because Indemnitee is or was a
director or an officer of the Corporation or because of any act or omission by
Indemnitee in any such capacity, the Corporation shall indemnify Indemnitee to
the fullest extent permitted by applicable law against all Expenses and
Liabilities actually and reasonably incurred by or on behalf of Indemnitee in
connection with the investigation, defense, settlement or appeal of the
Proceeding. In addition to the foregoing, the rights of Indemnitee to
indemnification provided in this Agreement shall include those rights set forth
in Sections 3 and 8 hereof. Notwithstanding anything in this Agreement to the
contrary and prior to a Change in Control, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any claim
initiated by Indemnitee against the Corporation or any director or officer of
the Corporation unless the Corporation has joined in or consented to the
initiation of such claim; provided, however, that the Corporation shall
indemnify Indemnitee against any and all Expenses and, if requested by
Indemnitee in writing, shall advance, in accordance with the terms of this
Agreement, such Expenses to Indemnitee, which are incurred by Indemnitee in
connection with any claim asserted against or action brought by Indemnitee for
(i) indemnification or advance payment of Expenses by the Corporation under this
Agreement or any other agreement, by-law or articles of incorporation now or
hereafter in effect and/or (ii) recovery under any directors' and officers'
liability insurance policies maintained by the Corporation, regardless of
whether Indemnitee ultimately is determined to be entitled to such
indemnification, advance payment or insurance recovery, as the case may be.
3. ADVANCEMENT OF EXPENSES; ESTABLISHMENT OF TRUST; LETTER OF
CREDIT.
a. ADVANCEMENT OF EXPENSES. All reasonable Expenses incurred by or
on behalf of Indemnitee shall be advanced to Indemnitee from time to time by the
Corporation to the fullest extent permitted by applicable law within 20 days
after the receipt by the Corporation of a written request for the advancement of
any such Expenses, whether before or after final disposition of a Proceeding
(except to the extent that there has been a Final Adverse Determination that
Indemnitee is not entitled to be indemnified for any such Expenses), including
without limitation any Proceeding brought by or in the right of the Corporation.
The written request for an advancement of Expenses under this Section 3(a) shall
contain reasonable details of the Expenses incurred by or on behalf of
Indemnitee for which advancement is thereby
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requested. By executing such a request, Indemnitee shall be deemed to have made
such written affirmation of Indemnitee's good faith belief that Indemnitee has
met the standard of conduct required by law to be met to entitle Indemnitee to
such advancement of Expenses (including, without limiting the generality of the
foregoing, Indemnitee's written affirmation of Indemnitee's good faith belief
that Indemnitee has met the standard of conduct described in Section 490.851 of
the Iowa Business Corporation Act). Advancement of Expenses by the Corporation
in connection with any Proceeding shall be made only upon delivery to the
Corporation of a written undertaking, executed personally or on Indemnitee's
behalf, to repay the advance if it is ultimately determined that Indemnitee did
not meet the standard of conduct required for indemnification under the Iowa
Business Corporation Act. Such undertaking must be an unlimited general
obligation of Indemnitee that need not be secured and may be accepted without
reference to financial ability to make repayment; provided, however, that under
no circumstances shall Indemnitee be deemed to have undertaken to repay to the
Corporation Expenses for which Indemnitee has the right to be indemnified under
this Agreement or otherwise.
b. ESTABLISHMENT OF TRUST. Upon receipt of a written request from
Indemnitee for advancement of Expenses or indemnification pursuant to this
Agreement, the Corporation shall create a grantor trust (the "Trust"), the
trustee of which shall be chosen by Indemnitee. Upon receipt of any such written
request from Indemnitee, the Corporation shall from time to time fund the Trust
in amounts sufficient to satisfy any and all Expenses and Liabilities that are
reasonably anticipated at the time of such request and for which the Corporation
may indemnify Indemnitee under this Agreement. The amount or amounts to be
deposited in the Trust pursuant to this funding obligation shall be determined
by mutual agreement of Indemnitee and the Corporation or, if Indemnitee and the
Corporation are unable to reach such agreement, by Independent Legal Counsel
selected by Indemnitee and shall be used exclusively for the uses and purposes
set forth in the Trust. The terms of the Trust shall provide that:
(1) the Trust shall not be revoked or the principal thereof
invaded without the consent of Indemnitee and the Corporation;
(2) Indemnitee shall not have any preferred claim to, or any
beneficial ownership in, any assets of the Trust prior to the time that such
assets are paid to Indemnitee as provided in the Trust;
(3) within ten days of a request by Indemnitee, the trustee of
the Trust shall advance to Indemnitee amounts sufficient to satisfy any and all
Expenses, provided that Indemnitee shall have executed and delivered to the
Corporation the written affirmation and the written undertaking required by
Section 3(a) of this Agreement;
(4) the Trust shall continue to be funded by the Corporation in
accordance with the funding obligations set forth in this Section 3(b);
(5) the trustee of the Trust shall promptly pay to Indemnitee
any amounts to which Indemnitee shall be entitled pursuant to this Agreement;
and
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(6) all unexpended funds in the Trust shall revert to the
Corporation on a final determination either by Independent Legal Counsel
selected by Indemnitee or by a court of competent jurisdiction that Indemnitee
has been fully indemnified with respect to the Proceeding giving rise to the
establishment of the Trust under the terms of this Agreement.
c. LETTER OF CREDIT. In order to secure the obligations of the
Corporation to indemnify and advance Expenses to Indemnitee pursuant to this
Agreement, the Corporation shall obtain at its expense at the time of any Change
in Control an irrevocable standby letter of credit naming Indemnitee as the sole
beneficiary ("Letter of Credit"). The Letter of Credit shall be in an
appropriate amount not less than $1,000,000, shall be issued by a financial
institution having assets in excess of $100,000,000 and shall contain terms and
conditions reasonably acceptable to Indemnitee. The Letter of Credit shall
provide that Indemnitee may from time to time draw certain amounts thereunder,
upon written certification by Indemnitee to the issuer of the Letter of Credit
that Indemnitee has made written request to the Corporation for an amount not
less than the amount Indemnitee is drawing under the Letter of Credit, that the
Corporation has failed or refused to provide Indemnitee with such amount in full
within 20 days after receipt of such request, and that Indemnitee believes that
Indemnitee is entitled under the terms of this Agreement to the amount that
Indemnitee is drawing under the Letter of Credit. The issuance of the Letter of
Credit shall not in any way diminish the obligation of the Corporation to
indemnify Indemnitee against Expenses and Liabilities to the full extent
required by this Agreement or otherwise. Once the Corporation has obtained the
Letter of Credit, the Corporation shall at its expense maintain and renew the
Letter of Credit or a substitute letter of credit meeting the criteria of this
Section 3(c) during the term of this Agreement, so that the Letter of Credit
shall have an initial term of five years, shall be renewed for successive
five-year terms, and shall always have at least one year of its term remaining
after the termination of this Agreement.
4. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
a. Upon making a request for indemnification, Indemnitee shall be
presumed to be entitled to indemnification under this Agreement and the
Corporation shall have the burden of proof to overcome such presumption in
reaching any contrary determination. The partial or complete disposition of any
Proceeding by judgment, order, settlement, arbitration award, conviction,
dismissal, or acceptance of a plea of nolo contendere or its equivalent, shall
not affect such presumption and, except as may be provided in Section 6 of this
Agreement, shall not be determinative that the Indemnitee failed to meet any
requisite standard of conduct and shall not establish a presumption with regard
to any other factual matter relevant to determining the right of Indemnitee to
indemnification under this Agreement or otherwise.
b. If the person or persons empowered to make a determination
pursuant to Section 5 of this Agreement shall have failed to make the requested
determination within 30 days after any judgment, order, settlement, arbitration
award, conviction, dismissal, acceptance of a plea of nolo contendere or its
equivalent, or other partial or complete disposition of any Proceeding or any
other event that could enable the Corporation to determine the right of
Indemnitee to be indemnified under this Agreement or otherwise, the requisite
determination that
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Indemnitee has the right to such indemnification shall be deemed to have been
made, provided that such thirty-day period may be extended for a reasonable time
(not to exceed an additional 30 days), if the person or persons so empowered to
make such a determination in good faith require such additional time to obtain
or evaluate documentation or information relating thereto, and provided further
that the foregoing provisions of this Section 4(b) shall not apply if the
determination of entitlement to indemnification is to be made by the
shareholders of the Corporation pursuant to Section 5(b) of this Agreement and
(i) within 15 days after receipt by the Corporation of the request for such
determination, the Board of Directors resolves to submit such determination to
the shareholders for their consideration at an annual meeting to be held within
75 days after such receipt, and such determination is made thereat, or (ii) a
special meeting of shareholders is called within 15 days after such receipt for
the purpose of making such determination and is held for such purpose within 60
days after having been so called, and such determination is made thereat.
5. PROCEDURE FOR DETERMINATION OF RIGHT OF INDEMNITEE TO BE
INDEMNIFIED.
a. Whenever Indemnitee believes that Indemnitee has a right to
indemnification pursuant to this Agreement, Indemnitee shall submit a written
request for indemnification to the Corporation. Any request for indemnification
shall include sufficient documentation or information reasonably available to
Indemnitee for the determination of the right of Indemnitee to be indemnified
pursuant to this Agreement. In any event, Indemnitee shall submit such request
for indemnification within a reasonable time, which shall not exceed five years
after any judgment, order, settlement, arbitration award, conviction, dismissal,
acceptance of a plea of nolo contendere or its equivalent, or other final
disposition of any Proceeding. Upon receipt of any such request for
indemnification, the General Counsel or other appropriate officer of the
Corporation shall promptly advise the Board of Directors in writing that
Indemnitee has made such request. Determination of the right of Indemnitee to
indemnification shall be made not later than 30 days after the receipt by the
Corporation of such written request for indemnification; provided, however, that
any request for indemnification for Liabilities (other than amounts paid in
settlement) with respect to a particular Proceeding shall be made only after a
determination thereof has been made in that particular Proceeding. If it is so
determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within 10 days after such determination.
b. The Corporation shall be entitled to select the forum in which
the right of Indemnitee to indemnification will be heard; provided, however, if
such forum is selected after a Change in Control of the Corporation, Independent
Legal Counsel shall determine whether Indemnitee has the right to
indemnification. The forum shall be any one of the following:
(1) the shareholders of the Corporation, other than shareholders
who are parties to the Proceeding with respect to which the Indemnitee has
claimed indemnification;
(2) a majority of a quorum of the Board of Directors consisting
of Disinterested Directors;
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(3) Independent Legal Counsel, who shall make the determination
in a written opinion; or
(4) a panel of three arbitrators, one selected by the
Corporation, another by Indemnitee and the third by the first two arbitrators
selected or, if for any reason three arbitrators are not selected within 30 days
after the appointment of the first arbitrator, then selection of additional
arbitrators shall be made by the American Arbitration Association. If any
arbitrator resigns or is unable to serve in such capacity for any reason, the
American Arbitration Association shall select a replacement. The arbitration
shall be conducted pursuant to the commercial arbitration rules of the American
Arbitration Association then in effect.
6. SPECIFIC LIMITATIONS ON INDEMNIFICATION. Notwithstanding anything
in this Agreement to the contrary, the Corporation shall not be obligated under
this Agreement to make any payment to Indemnitee for indemnification with
respect to any Proceeding:
a. to the extent that payment is actually made to Indemnitee under
any insurance policy, or is made to Indemnitee by the Corporation or an
affiliate of the Corporation otherwise than pursuant to this Agreement;
provided, however, notwithstanding the availability of any such insurance,
Indemnitee also may claim indemnification from the Corporation pursuant to this
Agreement by assigning to the Corporation any claims under any such insurance to
the extent Indemnitee is paid by the Corporation;
b. if a court in such Proceeding has entered a judgment or other
adjudication that is final and has become nonappealable and establishes that the
claim of Indemnitee for indemnification arose from (1) a breach by Indemnitee of
Indemnitee's duty of loyalty to the Corporation or its shareholders, (2) acts or
omissions of Indemnitee that were not in good faith or involved intentional
misconduct or knowing violations of the law, (3) a transaction in which
Indemnitee derived an improper personal benefit, or (4) liability of Indemnitee
to the Corporation pursuant to Section 490.833 of the Iowa Business Corporation
Act (or any successor provision thereto);
c. prior to the occurrence of a Change in Control, for Liabilities
in connection with any Proceeding settled without the consent of the
Corporation, which shall not be unreasonably withheld; or
d. for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Corporation within the meaning of Section 16(b)
of the Securities Exchange Act of 1934, as amended.
7. FEES AND EXPENSES OF INDEPENDENT LEGAL COUNSEL. The Corporation
shall pay the reasonable fees and expenses of Independent Legal Counsel or a
panel of three arbitrators, if Independent Legal Counsel or a panel of
arbitrators is retained to make a determination of the right of Indemnitee to
indemnification pursuant to Section 5(b) of this Agreement, and to fully
indemnify such Independent Legal Counsel or panel of arbitrators
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against any and all expenses and losses incurred by any of them and arising out
of or relating to this Agreement or their engagement pursuant hereto.
8. REMEDIES OF INDEMNITEE.
a. If a determination is made pursuant to Section 5 of this
Agreement that Indemnitee is not entitled to indemnification, or if advances of
Expenses are not made to Indemnitee pursuant to this Agreement, or if payment is
not timely made following a determination that Indemnitee has a right to
indemnification pursuant to this Agreement, or if Indemnitee otherwise seeks
enforcement of this Agreement, Indemnitee shall be entitled to a final
adjudication in an appropriate court of the State of Iowa of the remedy sought.
Alternatively, unless the determination was made by a panel of arbitrators
pursuant to Section 5(b)(4) of this Agreement, Indemnitee may elect to seek an
award in arbitration to be conducted by a single arbitrator pursuant to the
commercial arbitration rules of the American Arbitration Association then in
effect, and the decision of such arbitrator shall be rendered within 90 days
following the filing of the demand for arbitration. The Corporation shall not
oppose the right of Indemnitee to seek any such adjudication or arbitration
award. In any such proceeding or arbitration, Indemnitee shall be presumed to be
entitled to indemnification under this Agreement and the Corporation shall have
the burden of proof to overcome such presumption.
b. If a determination that Indemnitee is not entitled to
indemnification, in whole or in part, has been made pursuant to Section 5, the
decision in the judicial proceeding or arbitration provided in Section 8(a)
shall be made de novo and Indemnitee shall not be prejudiced by reason of a
determination that Indemnitee is not entitled to indemnification.
c. If a determination that Indemnitee is entitled to indemnification
has been made pursuant to Section 5 or is deemed to have been made pursuant to
Section 4 or otherwise pursuant to this Agreement, the Corporation shall be
bound by such determination in the absence of a misrepresentation of a material
fact by Indemnitee.
d. The Corporation shall be precluded from asserting that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable, and the Corporation shall stipulate in any such court or before any
such arbitrator that the Corporation is bound by all the provisions of this
Agreement and is precluded from making any assertion to the contrary.
e. Expenses reasonably incurred by Indemnitee in connection with the
request of Indemnitee for indemnification under, seeking enforcement of, or to
recover damages for breach of, this Agreement shall be borne by the Corporation
when and as incurred by Indemnitee irrespective of any Final Adverse
Determination that Indemnitee is not entitled to indemnification.
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9. INSURANCE.
a. MAINTENANCE OF INSURANCE. The Corporation represents that it
presently maintains certain policies of directors' and officers' liability
insurance. Subject only to the provisions of this Section 9, the Corporation
agrees that, during the Indemnification Period, the Corporation shall use its
best efforts to purchase and maintain in effect for the benefit of Indemnitee
one or more valid, binding and enforceable policies of directors' and officers'
liability insurance providing coverage that, in scope and amount and all other
respects, is no less favorable than that presently provided. Notwithstanding the
foregoing, prior to the occurrence of a Change in Control, the Corporation shall
not be required to maintain such policies of directors' and officers' liability
insurance if such insurance is not reasonably available or if it is in good
faith determined by the Board of Directors that:
(1) the premium cost of maintaining such insurance is
substantially disproportionate to the amount of coverage provided thereunder; or
(2) the protection provided by such insurance is so limited by
exclusions, deductions or otherwise that there is insufficient benefit to
warrant the cost of maintaining such insurance.
Notwithstanding anything in this Agreement to the contrary, to the
extent that and for so long as the Corporation shall choose to continue to
maintain any policy of directors' and officers' liability insurance during the
Indemnification Period, the Corporation shall maintain similar and equivalent
insurance for the benefit of Indemnitee during the Indemnification Period
(regardless of whether such similar or equivalent insurance is more or less
favorable to Indemnitee than the existing policy or policies of such insurance
maintained by the Corporation).
b. ADDITIONAL INDEMNIFICATION IN LIEU OF INSURANCE. If the
Corporation discontinues any policy or policies of directors' and officers'
liability insurance referred to in Section 9(a) of this Agreement or limits in
any way the scope or amount of the coverages provided thereunder, or such
policies or coverages provided thereunder become unavailable in whole or in part
for any reason, the Corporation agrees to hold harmless and indemnify Indemnitee
for the remainder of the Indemnification Period to the full extent of the
coverage that would otherwise have been provided for the benefit of Indemnitee
if the insurance specified in Section 9(a) hereof had been maintained.
10. MODIFICATION, WAIVER, TERMINATION AND CANCELLATION. No
supplement, modification, termination, cancellation or amendment of this
Agreement shall be binding unless executed in writing by both Indemnitee and the
Corporation. No waiver of any provision of this Agreement shall constitute or be
deemed to be (a) a waiver of any other provision of this Agreement or (b) a
continuing waiver.
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11. SUBROGATION. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all such papers as may be
reasonably required and shall do all such other things as may be reasonably
necessary to secure such rights, including the execution of such documents as
may be reasonably necessary to enable the Corporation to effectively bring suit
to enforce such rights.
12. NOTICE BY INDEMNITEE AND DEFENSE OF CLAIM. Indemnitee shall
promptly notify the Corporation in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any civil, criminal, administrative or investigative matter, but the
omission to so notify the Corporation shall not relieve the Corporation of any
liability that it may have to Indemnitee if such omission does not materially
prejudice the rights of the Corporation. If such omission does materially
prejudice the rights of the Corporation, the Corporation shall be relieved from
liability under this Agreement only to the extent of such prejudice, and no such
omission will relieve the Corporation from any liability that it may have to
Indemnitee otherwise than under this Agreement. With respect to any Proceeding
as to which Indemnitee notifies the Corporation of the commencement thereof:
a. The Corporation will be entitled to participate therein at its
own expense; and
b. The Corporation, jointly with any other indemnifying party
similarly notified, will be entitled to assume the defense of Indemnitee therein
with counsel reasonably satisfactory to Indemnitee; provided, however, that the
Corporation shall not be entitled to assume the defense of Indemnitee in any
Proceeding if there has been a Change in Control or if Indemnitee has reasonably
concluded that there may be a conflict of interest between the Corporation and
Indemnitee with respect to the Proceeding. After notice to Indemnitee from the
Corporation of its election to assume the defense of Indemnitee therein, the
Corporation will not be liable to Indemnitee under this Agreement for any
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 his or her own counsel in any
such Proceeding, but the fees and expenses of such counsel incurred after notice
from the Corporation of its assumption of the defense thereof shall be at the
expense of Indemnitee unless:
(1) the employment of counsel by Indemnitee has been authorized
by the Corporation;
(2) Indemnitee has reasonably concluded that counsel employed by
the Corporation may not adequately represent Indemnitee; or
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(3) the Corporation has not in fact employed counsel to assume
the defense of Indemnitee in the Proceeding or has not in fact assumed such
defense or is not acting with reasonable diligence in connection therewith; in
each of which cases, the fees and expenses of such counsel shall be borne by the
Corporation.
c. The Corporation shall not settle any Proceeding in any manner
that would impose any liability, penalty or limitation on Indemnitee without the
written consent of Indemnitee; provided, however, that Indemnitee will not
unreasonably withhold consent to any proposed settlement.
13. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (a)
delivered by hand and receipted for by the party to whom such notice or other
communication shall have been directed or (b) mailed by registered mail with
postage prepaid.
a. If to Indemnitee, to:
b. If to the Corporation, to:
HON INDUSTRIES Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: General Counsel
or to such other address as may be hereafter furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
14. NONEXCLUSIVITY. The rights of Indemnitee under this Agreement
shall not be deemed exclusive of any other rights to which Indemnitee may be
entitled under the Business Corporation Act of the State of Iowa, the Articles
of Incorporation or By-laws of the Corporation, or any Agreements, vote of
shareholders, resolution of the Board of Directors or otherwise and, to the
extent that during the Indemnification Period the rights of the then existing
directors and officers are more favorable to such directors or officers than the
rights currently provided to Indemnitee thereunder or under this Agreement,
Indemnitee shall be entitled to the full benefits of such more favorable rights.
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15. CERTAIN DEFINITIONS. For the purposes of this Agreement, the
following terms shall have the following meanings:
a. "Change in Control" means:
(1) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (i) the then outstanding shares of common stock of the
Corporation (the "Outstanding Company Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of the Corporation entitled to
vote generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection (1), the
following acquisitions shall not constitute a Change of Control: (i) any
acquisition directly from the Corporation, (ii) any acquisition by the
Corporation, (iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any corporation controlled
by the Corporation or (iv) any acquisition by any corporation pursuant to a
transaction which complies with clauses (i), (ii) and (iii) of subsection (3) of
this Section 15(a); or
(2) individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least two-thirds
of the Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Corporation's shareholders, was approved by a vote of at least three-quarters of
the directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(3) consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Corporation (a "Business Combination"), in each case, unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such Business Combination beneficially own, directly or indirectly, more than
50% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Corporation or all or
substantially all of the Corporation's asets either directly or through one or
more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be, (ii) no
person (excluding any corporation resulting from such Business Combination or
any employee benefit plan (or related trust) of the
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Corporation or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(4) approval by the shareholders of the Corporation of a
complete liquidation or dissolution of the Corporation.
b. "Disinterested Director" means a director of the Corporation who
is not or was not a party to the Proceeding with respect to which
indemnification is being sought by Indemnitee.
c. "Expenses" shall include all direct and indirect costs (including
but not limited to attorneys' fees, retainers, court costs, transcript fees,
fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage costs, delivery service fees, all
other disbursements or out-of-pocket expenses and reasonable compensation for
time spent by Indemnitee for which Indemnitee is otherwise not compensated by
the Corporation or any third party) actually and reasonably incurred in
connection with the investigation, defense, settlement or appeal of a Proceeding
or establishing or enforcing a right to Indemnification under this Agreement,
applicable law or otherwise; provided, however, that Expenses shall not include
any Liabilities.
d. "Final Adverse Determination" means a determination that
Indemnitee is not entitled to indemnification pursuant to Section 5 of this
Agreement and either (i) a final, nonappealable adjudication in an Iowa court or
decision of an arbitrator pursuant to Section 8(a) of this Agreement shall have
denied the right of Indemnitee to indemnification under this Agreement or (ii)
Indemnitee shall have failed to file a complaint in an Iowa court or seek an
arbitration award pursuant to Section 8(a) hereof within 120 days after the
determination made pursuant to Section 5 hereof.
e. "Indemnification Period" means the period of time during which
Indemnitee shall serve as a director or officer of the Corporation and for so
long thereafter as Indemnitee may be subject to any Proceeding.
f. "Independent Legal Counsel" means special legal counsel who is
selected by the Board of Directors by vote of a majority of a quorum consisting
of Disinterested Directors or, if such quorum cannot be obtained, by vote of a
majority of the full Board of Directors, including directors who are not
Disinterested Directors, and is approved by Indemnitee (which approval shall not
be unreasonably withheld) or, if there has been a Change in Control, selected by
Indemnitee and approved by the Board of Directors (which approval shall not be
unreasonably withheld), and who is not presently and has not in the five years
preceding such selection been
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retained to represent (i) the Corporation or any of its subsidiaries or
affiliates, or Indemnitee or any corporation or entity as to which Indemnitee is
or was a director, officer, partner or employee, or any subsidiary or affiliate
of such a corporation or entity, in any material matter or (ii) any other party
to the Proceeding giving rise to the claim for indemnification with respect to
which such counsel is being selected. Notwithstanding the foregoing, Independent
Legal Counsel shall not include any person who, under the applicable standards
of professional conduct then prevailing, would have a conflict of interest in
representing either the Corporation or Indemnitee in an action to determine the
right of Indemnitee to indemnification under this Agreement.
g. "Liabilities" means liabilities of any type whatsoever, including
but not limited to any judgments, fines, ERISA excise taxes and penalties,
penalties and amounts paid in settlement (including all interest assessments and
other charges paid or payable in connection with or in respect of such
judgments, fines, penalties or amounts paid in settlement), incurred with
respect to any Proceeding.
h. "Proceeding" means any threatened, pending or completed action,
claim, suit, arbitration, alternative dispute resolution mechanism,
investigation, administrative hearing or any other formal or informal civil,
criminal, administrative or investigative proceeding that is associated with
Indemnitee being or having been a director or officer of the Corporation.
16. BINDING EFFECT; DURATION AND SCOPE OF AGREEMENT. This Agreement
shall be binding upon and inure to the benefit of and be enforceable by
Indemnitee and the Corporation and their respective successors and assigns
(including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business or assets of the
Corporation), spouses, heirs, executors, personal representatives and
administrators and other legal representatives. This Agreement shall continue in
effect during the Indemnification Period, regardless of whether Indemnitee
continues to serve as a director or officer of the Corporation.
17. SEVERABILITY. If any provision or provisions of this Agreement
shall be held to be illegal, invalid or otherwise unenforceable for any reason
whatsoever:
a. the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby; and
b. the provisions of this Agreement shall be construed so as to give
effect to the fullest extent legally possible to the intent of any provisions
held to be illegal, invalid or otherwise unenforceable.
18. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Iowa.
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19. ENTIRE AGREEMENT. This Agreement represents the entire Agreement
between the Corporation and Indemnitee, and there are no other Agreements,
contracts or understandings between them with respect to the subject matter of
this Agreement, except as specifically referred to herein or as provided in
Section 14 hereof.
IN WITNESS WHEREOF, this Indemnity Agreement is executed by the
Corporation and the Indemnitee as of the date first written above.
HON INDUSTRIES Inc.
By
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Name:
Title:
INDEMNITEE
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Name:
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