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Exhibit 10.1
AGREEMENT
This Agreement, made as of this _____ day of ______, ________, between
Park-Ohio Holdings Corp., an Ohio corporation (the "Company") and
__________________, a director, officer or representative (as hereinafter
defined) of the Company (the "Indemnitee");
WHEREAS, 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;
WHEREAS, the Company and the Indemnitee are also aware of conditions in
the insurance industry that have affected and may continue to affect the
Company's ability to obtain appropriate directors' and officers' liability
insurance on an economically acceptable basis;
WHEREAS, the Company desires to continue to benefit from the services
of highly qualified, experienced and otherwise competent persons such as the
Indemnitee;
WHEREAS, the Indemnitee desires to serve or to continue to serve the
Company as a director, officer, trustee or as a director, officer or trustee 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
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Subject to the terms of this Agreement, the Company shall indemnify the
Indemnitee with respect to his activities as a director or officer of the
Company and/or as a person who is serving or has served on behalf of the Company
("representative") as a director, officer, or trustee 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, and amounts paid in settlement) actually and reasonably incurred by him
("Expenses") in connection with any claim against Indemnitee which is the
subject of any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, investigative or otherwise and whether
formal or informal (a "Proceeding"), 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 such a director, officer or representative, to the extent
of the highest and most advantageous to the Indemnitee, as determined by the
Indemnitee, of one or any combination of the following:
a) The benefits provided by the Company's Regulations in effect on the
date hereof, a copy of
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the relevant portions of which are attached hereto as Exhibit I;
b) The benefits provided by the Articles of Incorporation, Regulations,
or By-laws or their equivalent of the Company in effect at the
time Expenses are incurred by Indemnitee;
c) The benefits allowable under Ohio law in effect at the date hereof;
d) The benefits allowable under the law of the jurisdiction under which
the Company exists at the time Expenses are incurred by the
Indemnitee;
e) The benefits available under liability insurance obtained by the
Company;
f) The benefits which would have been available to the Indemnitee under
the Chubb Executive Liability Insurance Policy issued by Federal
Insurance Company on September 7, 1983 which is designated as
policy number 81026391, a copy of which is attached as Exhibit
II hereto; had such policy continued in effect and unamended at
the time Expenses are incurred by the Indemnitee; and
g) Such other benefits as are or may be otherwise available to Indemnitee.
Combination of two or more of the benefits provided by (a) through (g) shall be
available to the extent that the Applicable Document, as hereafter defined, does
not require that the benefits provided therein be exclusive of other benefits.
The document or law providing for the benefits listed in items (a) through (g)
above is called the "Applicable Document" in this Agreement. Company hereby
undertakes to use its best efforts to assist Indemnitee, in all proper and legal
ways, to obtain the benefits selected by Indemnitee under items (a) through (g)
above.
For purposes of this Agreement, references to "other enterprises" shall
include employee benefit plans for employees of the Company or of any affiliated
entity 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 on behalf of the Company" shall include any
service as a director, officer, employee 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 he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan he 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
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The Company shall maintain directors' and officers' liability insurance
for so long as Indemnitee's services are covered hereunder, provided and only to
the extent that such insurance is available in amounts and on terms and
conditions determined by the Company to be acceptable.
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However, the Company agrees that the provisions hereof shall remain in effect
regardless of whether liability or other insurance coverage is at any time
obtained or retained by the Company; except that any payments in fact made to
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.
3. PAYMENT OF EXPENSES
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At Indemnitee's request, after receipt of written notice pursuant to
Section 5 hereof and an undertaking in the form of Exhibit III attached hereto
by or on behalf of Indemnitee to repay such amounts so paid on Indemnitee's
behalf if it shall ultimately be determined under the Applicable Document that
Indemnitee is not entitled to be indemnified by the Company for such Expenses,
the Company shall pay the Expenses as and when incurred by Indemnitee. 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 request, together with reasonable documentation (consistent,
in the case of attorneys' fees, with Company practice in payment of legal fees
for outside counsel generally) evidencing the amount and nature of such
Expenses, subject to its also having received such a notice and undertaking.
4. ADDITIONAL RIGHTS
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The indemnification provided in this Agreement shall not be exclusive
of any other indemnification or right to which Indemnitee may be entitled and
shall continue after 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 Indemnitee's acts or omissions during
his service in such position.
5. NOTICE TO COMPANY
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Indemnitee shall provide to the Company prompt written notice of any
Proceeding brought, threatened, asserted or commenced against Indemnitee with
respect to which Indemnitee may assert a right to indemnification hereunder;
provided that failure to provide such notice shall not in any way limit
Indemnitee's rights under this Agreement.
6. COOPERATION IN DEFENSE AND SETTLEMENT
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Indemnitee shall not make any admission or effect any settlement of any
Proceeding without the Company's written consent unless Indemnitee shall have
determined to undertake his own defense in such matter and has waived the
benefits of this Agreement. The Company shall not settle any Proceeding to which
Indemnitee is a party in any manner which would impose any Expense on Indemnitee
without his written consent. Neither Indemnitee nor the Company will
unreasonably withhold consent to any proposed settlement. Indemnitee and the
Company shall cooperate to the extent reasonably possible with each other and
with the Company's insurers, in attempts to defend and/or settle such
Proceeding.
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7. ASSUMPTION OF DEFENSE
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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 Indemnitee's defense in any Proceeding, with counsel mutually
satisfactory to Indemnitee and the Company. After notice from the Company to
Indemnitee of the Company's election so to assume such defense, the Company will
not be liable to Indemnitee under this Agreement for 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 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 Indemnitee's expense unless:
a) The employment of counsel by Indemnitee has been authorized by the
Company;
b) Counsel employed by the Company initially is unacceptable or later
becomes unacceptable to Indemnitee and such unacceptability is
reasonable under then existing circumstances;
c) Indemnitee shall have reasonably concluded that there may be a conflict
of interest between Indemnitee and the Company in the conduct of
the defense of such Proceeding; or
d) The Company shall not have employed counsel promptly to assume the
defense of such Proceeding,
in each of which cases the 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 Indemnitee in any Proceeding
brought by or on behalf of the Company or as to which Indemnitee shall have made
either of the conclusions provided for in clauses (b) or (C) above.
8. ENFORCEMENT
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In the event that any dispute or controversy shall arise under this
Agreement between 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 Indemnitee may seek to enforce the Agreement through
legal action or, at Indemnitee's sole option and written request, through
arbitration. If arbitration is requested, such dispute or controversy shall be
submitted by the parties to binding arbitration in the City of Cleveland, State
of Ohio, before a single arbitrator agreeable to both parties. If the parties
cannot agree on a designated arbitrator within 15 days after arbitration is
requested in writing by Indemnitee, the arbitration shall proceed in the City of
Cleveland, 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
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performed services for the Company or Indemnitee at any time during the five
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 attorneys' fees)
incurred in connection with such legal action or arbitration; provided that
Indemnitee shall not be obligated to reimburse the Company unless the arbitrator
or court which resolves the dispute determines that Indemnitee acted in bad
faith in bringing such action or arbitration.
9. EXCLUSIONS
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Notwithstanding the scope of indemnification which may be available to
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 Indemnitee shall have been
adjudged by a court of competent jurisdiction from which no
appeal is or can be taken to have acted in willful misfeasance,
or willful disregard of his duties, except to the extent that
such court 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 the court shall deem proper;
b) Any claim or any part thereof arising under Section 16(b) of the
Securities Exchange Act of 1934 pursuant to which Indemnitee
shall be obligated to pay any penalty, fine, settlement or
judgment;
c) Any obligation of Indemnitee based upon or attributable to the
Indemnitee gaining in fact any personal gain, profit or
advantage to which he was not entitled; or
d) Any Proceeding initiated by 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 Indemnitee to enforce his rights under this Agreement
or in any Proceeding initiated by another person or entity
whether or not such claims were brought by Indemnitee against a
person or entity who was otherwise a party to such Proceeding.
Nothing in this Section 9 shall eliminate or diminish Company's obligations to
advance that portion of Indemnitee's Expenses which represent attorneys' fees
and other costs incurred in defending any Proceeding pursuant to Section 3 of
this Agreement.
10. EXTRAORDINARY TRANSACTIONS
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The Company covenants and agrees that, in the event of any merger,
consolidation or reorganization in which the Company is not the surviving
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
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referred to as an "extraordinary transaction"), the Company shall:
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
Otherwise adequately provide for the satisfaction of the Company's
obligations under this Agreement, in a manner acceptable to
Indemnitee.
11. NO PERSONAL LIABILITY
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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 Indemnitee
shall look solely to the assets of the Company for satisfaction of any claims
hereunder.
12. SEVERABILITY
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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 the Agreement enforceable, and the Agreement as thus amended shall
be enforced to give effect to the intention of the parties insofar as that is
possible.
13. SUBROGATION
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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 actions as
shall be reasonably necessary for the Company to enforce such rights.
14. GOVERNING LAW
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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
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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:
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If to the Company, to: PARK-OHIO HOLDINGS CORP.
00000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Secretary
If to 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
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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 Company hereunder
with respect to Indemnitee's activities prior to the effective date of
termination.
17. AMENDMENTS AND BINDING EFFECT
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This Agreement and the rights and duties of Indemnitee and the Company
hereunder may not be amended, modified or terminated except by written
instrument signed and delivered by the parties hereto. This Agreement is and
shall be binding upon and shall inure to the benefits of the parties thereto and
their respective heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement in
triplicate as of the date first above written.
INDEMNITEE PARK-OHIO HOLDINGS CORP.
By: By:
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Xxxxxx X. Xxxxxxxx
Title: Title: Chairman and Chief Executive
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