EXHIBIT 10.15
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT ("Agreement") is made effective as of
___________, 200__ by and between ▇▇▇▇▇▇ INTERNATIONAL INC., an Ohio corporation
(the "Company"), and __________________ (the "Indemnitee").
R E C I T A L S:
A. The Company and the Indemnitee recognize the difficulty and
expense of obtaining adequate directors' and officers' liability insurance;
B. The Company and the Indemnitee recognize the substantial
increase in corporate litigation in general, subjecting directors and officers
to expensive litigation risks at the same time as the availability and coverage
of liability insurance has been severely limited;
C. Based upon their experience as business managers, the Board of
Directors of the Company (the "Board") has concluded that, to retain and attract
talented and experienced individuals to serve as directors and officers of the
Company, it is necessary for the Company contractually to indemnify its
directors and officers with respect to claims against such directors and
officers in connection with their service to or on behalf of the Company, and
that the failure to provide such contractual indemnification could result in
great harm to the Company and the Company's shareholders;
D. Section 1701.13(E) ("Section 1701.13(E)") of the General
Corporation Law of Ohio, under which the Company is organized, empowers the
Company to indemnify its directors and officers by agreement and to indemnify
persons who serve, at the request of the Company, as the directors, officers,
employees or agents of other corporations or enterprises, and expressly provides
that the indemnification provided by Section 1701.13(E) is not exclusive;
E. The Company, after reasonable investigation prior to the date
hereof, has determined that the liability insurance coverage available to the
Company is inadequate or inordinately expensive and that the Indemnitee and
other directors or officers of the Company may not be willing to continue to
serve as directors or officers without additional protection;
F. The Company desires and has requested the Indemnitee to serve
or continue to serve as a director or officer of the Company; and,
G. The Indemnitee is willing to serve, or to continue to serve,
the Company, provided that he is furnished the indemnity provided for herein;
NOW, THEREFORE, based upon the foregoing premises and in consideration
of the mutual covenants contained herein, the parties hereto hereby agree as
follows:
1. Definitions.
1.1 Agent. For the purposes of this Agreement, "Agent" means any
person who is a director or officer of the Company; or is serving at the request
of, for the convenience of or to represent the interests of the Company as a
director, officer, manager, employee or agent of another foreign or domestic
corporation (for profit or nonprofit), partnership, limited liability company,
joint venture, trust or other enterprise (specifically including employee
benefit plans).
1.2 Expenses. For purposes of this Agreement, "Expenses" includes
all direct costs (including, without limitation, all attorneys' fees and related
disbursements and other out-of-pocket costs) actually and reasonably incurred by
the Indemnitee in connection with the investigation, defense or appeal of a
Proceeding, as that term is defined in Section 1.4, or establishing or enforcing
a right to indemnification under this Agreement; provided, however, that
"Expenses" shall not include any judgments, fines, ERISA excise taxes or
penalties or amounts paid in settlement of a Proceeding, or prepaid retainers
for attorneys or other professionals engaged by or on behalf of the Indemnitee.
1.3 Liability. For purposes of this Agreement, "Liability" or
"Liabilities," includes any judgment, fine, ERISA excise tax or penalty or any
amount paid, with the Company's written consent, in settlement of a Proceeding.
1.4 Proceeding. For the purposes of this Agreement, "Proceeding"
means any threatened, pending or completed action, suit or other proceeding,
whether civil, criminal, administrative, investigative or any other type
whatsoever.
2. Agreement to Serve. The Indemnitee agrees to serve and/or to
continue to serve as an Agent in the capacity the Indemnitee currently serves as
an Agent, as long as such service is mutually agreeable to Indemnitee and the
Company.
3. Maintenance of Liability Insurance.
3.1 Maintenance of Insurance. As long as the Indemnitee shall
continue to serve as an Agent and thereafter as long as the Indemnitee shall be
subject to any possible Proceeding by reason of the fact that the Indemnitee was
an Agent, the Company, subject to the provisions of Section 3.3 with respect to
the unavailability of satisfactory insurance coverage, shall promptly obtain
and/or maintain in full force and effect directors' and officers' liability
insurance ("D&O Insurance") in reasonable amounts from established and reputable
insurers. If D&O Insurance is obtained, the Company covenants that the
Indemnitee shall be named as an insured.
3.2 Indemnitee Named as Insured. In all policies of D&O Insurance,
if any, the Indemnitee shall be named as an insured in such a manner as to
provide the Indemnitee the same rights and benefits as are accorded to the
Company's most favorably insured directors.
3.3 Unavailability of Satisfactory Coverage. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain D&O
Insurance if the Company determines in good faith that such insurance is not
reasonably available, or that the premium costs for such insurance are
disproportionate to the amount of coverage provided or that the coverage
provided by such insurance is limited by exclusions so as to provide an
insufficient benefit. The failure of the Company to obtain D&O Insurance or the
decision by the Company not to obtain such coverage shall not have any
detrimental effect on the Indemnitee's rights hereunder.
4. Mandatory Indemnification.
4.1 Third Party Actions. The Company shall indemnify the
Indemnitee when the Indemnitee is a party or is threatened to be made a party to
any Proceeding (other than an action by or in the right of the Company) by
reason of the fact that he is or was an Agent, or by reason of anything done or
not done by him in any such capacity, against any and all Expenses and
Liabilities of any type whatsoever actually and reasonably incurred by him in
connection with the investigation, defense, settlement or appeal of that
Proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any Proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not create a presumption that the Indemnitee did not satisfy the foregoing
standard of conduct.
4.2 Proceedings by or in the Right of the Company. The Company
shall indemnify the Indemnitee when the Indemnitee is a party or is threatened
to be made a party to any Proceeding by or in the right of the Company to
procure a judgment in its favor by reason of the fact that he is or was an
Agent, or by reason of anything done or not done by him in any such capacity,
against any amounts paid in settlement of any such proceeding and all
expenses actually and reasonably incurred by him in connection with the
investigation, defense, settlement or appeal of that Proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company; except that no indemnification under this
subsection shall be made in respect of any claim, issue or matter as to which
such person shall have been finally adjudged to be liable to the Company under
the standards of the Ohio General Corporation Law by a court of competent
jurisdiction in the performance of his duty to the Company unless and only to
the extent that the court in which such Proceeding was brought shall determine,
upon application, that, despite the adjudication of liability, but in view of
all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such amounts which such court shall deem proper.
4.3 Expenses or Liabilities Paid by D&O Insurance or the Trust.
Notwithstanding the foregoing, the Company shall not be obligated to indemnify
the Indemnitee for Expenses or Liabilities of any type whatsoever which have
been paid directly to, or for the benefit of, the Indemnitee by D&O Insurance or
out of any trust that may be established pursuant to Section 9 hereof.
5. Partial Indemnification. If the Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company for a part,
but not the total amount, of any Expenses or Liabilities of any type whatsoever
incurred by him in the investigation, defense, settlement or appeal of a
Proceeding, the Company shall indemnify the Indemnitee only for such amount to
which the Indemnitee is entitled as indemnification hereunder.
6. Mandatory Advancement of Expenses. Subject to Sections 7 and
10 hereof, the Company shall advance all Expenses incurred by the Indemnitee in
connection with the investigation, defense, settlement or appeal of any
Proceeding to which the Indemnitee is a party or is threatened to be made a
party by reason of the fact that the Indemnitee is or was an Agent, or in
connection with any action brought by the Indemnitee to establish or enforce a
right to indemnification under this Agreement pursuant to Section 8 hereof, in
advance of the final disposition thereof. Indemnitee hereby undertakes: (x) to
repay all such amounts advanced if (but only if) it shall be proved by clear and
convincing evidence in a court of competent jurisdiction that his action or
failure to act involved an act or omission undertaken with deliberate intent to
cause injury to the Company or undertaken with reckless disregard for the best
interests of the Company; and (y) to cooperate reasonably with the Company in
connection with such Proceeding. The advances to be made hereunder shall be paid
by the Company to or for the benefit of the Indemnitee within twenty (20) days
following delivery of a written request therefore, accompanied by true and
complete copies of invoices therefore, by the Indemnitee to the Company.
7. Notice and Other Indemnification Procedures.
7.1 Notice to Company. Promptly after receipt by the Indemnitee of
notice of the commencement or the threatened commencement of any Proceeding, the
Indemnitee shall notify the Company of such commencement or threatened
commencement. The Indemnitee shall also provide the Company such information and
cooperation as the Company from time to time may reasonably request and as shall
reasonably be within the Indemnitee's power to provide. The Company shall have
no obligation to indemnify the Indemnitee under this Agreement if (but only if)
the Indemnitee's delay or failure to provide notice, information or cooperation
as required under this Section 7.1 results in a material impairment of the
Company's ability to defend the Proceeding or in the loss of coverage under any
applicable insurance policy.
7.2 Notice to Insurance Carriers. If the Company has any
applicable insurance policy in effect at the time it receives notice pursuant to
Section 7.1 of the commencement or threatened commencement of a Proceeding, the
Company shall give prompt notice thereof to the insurer(s) in accordance with
the procedure set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of the Indemnitee, all amounts payable as a result of such Proceeding in
accordance with the terms of such policies.
7.3 Choice of Counsel. In the event the Company shall be obligated
to advance the Expenses of any Proceeding against the Indemnitee, the Company
shall be entitled, in lieu thereof, to assume the defense of such proceeding
upon the delivery to the Indemnitee of written notice of the Company's election
to do so, which notice shall contain the name, address and phone number of
counsel engaged by the Company to handle such defense and confirmation that the
Company has undertaken to pay that counsel's reasonable fees and expenses
therefore. After delivery of such notice, the Company shall not be liable to the
Indemnitee under this Agreement for any fees or
expenses of counsel for the Indemnitee (other than the counsel engaged by the
Company) subsequently incurred by the Indemnitee with respect to the same
Proceeding; provided, however, that the fees and expenses of such counsel for
the Indemnitee shall be at the expense of the Company if () the employment of
separate counsel by the Indemnitee has been previously authorized by the
Company, or () the Indemnitee shall have reasonably concluded, and either the
Company shall have agreed, or independent counsel (as defined herein) shall have
determined, that there may be a conflict of interest between the Company and the
Indemnitee in the conduct of any such defense; and further provided, however,
that, the Indemnitee's counsel shall have been approved by any carrier of an
applicable insurance policy if required under the terms of that policy. As used
in this Section 7.3, "independent counsel" shall mean counsel selected and
compensated by the Company, and reasonably approved by the Indemnitee, to
determine whether a conflict of interest may exist, which counsel shall not
represent the Company, the Indemnitee or any other party to the Proceeding for
which indemnification is sought. Independent counsel shall be selected promptly
following notice from the Indemnitee to the Company of the Indemnitee's belief
that a conflict of interest may exist. Nothing herein shall limit the right of
the Indemnitee to employ counsel at the Indemnitee's sole expense.
8. Determination of Right to Indemnification.
8.1 Successful Defense. To the extent the Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding referred to
in Sections 4.1 or 4.2 hereof or in the defense of any claim, issue or matter
described therein, the Company shall indemnify the Indemnitee against Expenses
actually and reasonably incurred by him in connection with the investigation,
defense or appeal of such Proceeding.
8.2 Satisfaction of Standard of Conduct. In the event that Section
8.1 is inapplicable, (i) indemnification under Section 4.1 hereof shall be made
by the Company only upon a determination in accordance with this Section 8 that
the Indemnitee is entitled to indemnification hereunder, and (ii)
indemnification under Section 4.2 shall be made, if at all, in accordance with
the procedure set forth in Section 4.2. If the Indemnitee believes, upon the
disposition of any Proceeding described in Section 4.1 (whether by judgment,
settlement or otherwise), that the Indemnitee is entitled to indemnification
pursuant to this Agreement, the Indemnitee shall make written demand therefor
upon the Company. The Company shall indemnify the Indemnitee in accordance with
such demand unless, within forty-five (45) days after receipt of the
Indemnitee's demand, the Company notifies the Indemnitee that it has determined
that the Indemnitee has not met the applicable standard of conduct required to
entitle the Indemnitee to such indemnification (the "Notice of Denial"). The
Notice of Denial shall set forth, in reasonable detail, the basis for such
determination by the Company and the name of counsel selected by the Board
pursuant to Section 8.3.2 hereof.
8.3 Forum for Determination of Satisfaction of Standard of
Conduct. Provided the Indemnitee notifies the Company of his choice of forum
within thirty (30) days after the receipt of a Notice of Denial, the Indemnitee
shall be entitled to select one of the following forums to determine whether he
met the applicable standard of conduct specified in Section 4.1 and is therefore
entitled to indemnification under this Agreement:
8.3.1 Quorum of Disinterested Directors. A vote of a
majority of a quorum (more than fifty percent (50%)) of the Board
consisting of directors who are not parties to the Proceeding for which
indemnification is being sought, based upon written submissions by the
Company and the Indemnitee and, if the Indemnitee or directors so
request, an oral presentation by the Indemnitee and by such other
persons as such directors may request; provided, however, that the
Indemnitee shall not have the right to be present during such
directors' deliberations nor during presentations made to such
directors by any person other than the Indemnitee;
8.3.2 Counsel. Legal counsel selected by the Board (other
than counsel to any party to the Proceeding for which indemnification
is sought), and reasonably approved by the Indemnitee, which counsel
shall make such determination in a written opinion based upon written
submissions by the Company and the Indemnitee and responses to such
questions as that counsel may have in such form as that counsel may
request;
8.3.3 Arbitration Panel. A majority vote of a panel of
three arbitrators, one of whom is selected by the first two arbitrators
so selected, which arbitration shall be conducted in accordance with
the rules of the American Arbitration Association and such rules of
procedure as may be established by the panel; or
8.3.4 Court. The court in which the Proceeding is or was
pending, in accordance with such rules of procedure as may be
applicable to or established by that court.
8.4 Submission to Forum. As soon as practicable, and in no event
later than thirty (30) days after the Indemnitee's written notice to the Company
of the Indemnitee's choice of forum pursuant to Section 8.3 above, the Company
shall, at its expense, submit to the selected forum its claim that the
Indemnitee is not entitled to indemnification. The Indemnitee shall be afforded
an adequate opportunity to defend against that claim. A presumption shall exist
that the Indemnitee is entitled to indemnification hereunder, and the Company
shall indemnify the Indemnitee unless the Company shall prove to the selected
forum, by clear and convincing evidence, that the Indemnitee has not met the
applicable standard of conduct required to entitle the Indemnitee to such
indemnification. The decision of the selected forum shall constitute a binding
and final adjudication between the Company and the Indemnitee as to the
Indemnitee's right to indemnification under Section 4.1 of this Agreement.
8.5 Expenses of Determination. Notwithstanding any other provision
in this Agreement to the contrary, the Company shall indemnify the Indemnitee
against all Expenses incurred by the Indemnitee in connection with any hearing
or proceeding under this Section 8 involving the Indemnitee and against all
Expenses incurred by the Indemnitee in connection with any other Proceeding
between the Company and the Indemnitee involving the interpretation or
enforcement of the rights of the Indemnitee under this Agreement unless the
Company shall be deemed the prevailing party in any such proceeding.
9. Indemnification Trust Agreement. In order to secure the
obligations of the Company to advance to the Indemnitee certain amounts under
Section 6 hereof, the Company may establish a trust fund naming the Indemnitee
as a beneficiary (in addition to all other directors, officers and other agents
with whom the Company enters into Indemnity Agreements, whether before, on, or
after the date hereof). The Indemnitee shall not seek any amount from the Trust,
if established, (i) unless entitled to an advance of Expenses pursuant to this
Agreement and (ii) unless and until the Indemnitee has made demand for payment
of Expenses pursuant to Section 6 hereof and, after twenty (20) days, the
Company has failed to advance such Expenses. The Indemnitee shall not be
entitled to receive a reimbursement or advance from the Trust, if established,
for a liability or other amount not expressly covered by Section 6 hereof.
10. Exceptions. Notwithstanding any other provision herein to the
contrary, the Company shall not be obligated pursuant to the terms of this
Agreement:
10.1 Claims Initiated by the Indemnitee. To indemnify or advance
Expenses to the Indemnitee with respect to proceedings or claims initiated or
brought voluntarily by the Indemnitee and not by way of defense, except with
respect to proceedings brought to establish or enforce a right to
indemnification under this Agreement; or
10.2 The Company Prevails in Action to Enforce or Interpret
Agreement. To indemnify the Indemnitee for any Expenses incurred by the
Indemnitee with respect to any Proceeding instituted by the Indemnitee to
enforce or interpret this Agreement, if the Company is deemed to be the
prevailing party in such proceeding; or
10.3 Unauthorized Settlements. To indemnify the Indemnitee for any
amounts paid in settlement of a Proceeding unless the Company expressly consents
in writing to such settlement; or
10.4 Failure to Settle Proceeding. To indemnify the Indemnitee for
Liabilities in excess of the total amount at which settlement reasonably could
have been made, or for any Expenses incurred by the Indemnitee following the
time such settlement reasonably could have been effected, if the Indemnitee
shall have unreasonably delayed, refused or failed to enter into a settlement of
any Proceeding (or investigation or appeal thereof) recommended in good-faith,
in writing, by the Company.
11. No Restriction of Other Indemnification Rights. The Company
shall not adopt any amendment to its Articles of Incorporation or Regulations,
the effect of which would be to deny, diminish or encumber the Indemnitee's
rights to indemnity pursuant to the Articles of Incorporation, the Regulations,
the Ohio General Corporation Law or any other applicable law as applied to any
act or failure to act occurring in whole or in part prior to the date (the
"Effective Date") upon which the amendment shall apply only to acts or failures
to act occurring entirely after the Effective Date thereof, unless the
Indemnitee shall have voted in favor of the amendment as a director or holder of
record of the Company's common stock, as the case may be.
12. Merger or Consolidation. In the event that the Company shall
be a constituent corporation in a merger, consolidation or other reorganization,
the Company, if it shall not be the surviving, resulting or acquiring
corporation therein, shall require, as a condition thereto, that the surviving,
resulting, or acquiring corporation agree to indemnify the Indemnitee to the
full extent provided in this Agreement and to adopt and assume the Company's
obligations under this Agreement. Whether or not the Company is the surviving,
resulting or acquiring corporation in any such transaction, the Indemnitee shall
also stand in the same position under this Agreement as he would have with
respect to the Company if its separate existence had continued.
13. Non-Exclusivity. The provisions for indemnification and
advancement of expenses set forth in this Agreement shall not be deemed
exclusive of any other rights which the Indemnitee may have under any provision
of law, the Company's Articles of Incorporation or Regulations, the vote of the
Company's shareholders or disinterested directors, other agreements or
otherwise, whether as to actions in his official capacity or actions in another
capacity while occupying his position as an Agent. The Indemnitee's rights
hereunder shall continue after the Indemnitee has ceased acting as an Agent and
shall inure to the benefit of the successors, heirs, executors, administrators,
estates, legal representatives and assigns of the Indemnitee.
14. Interpretation of Agreement. It is understood that the parties
hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to the Indemnitee to the fullest extent now or hereafter
permitted by law; provided, however, that no change in any applicable law,
statute or rule which has the effect of narrowing the right of an Ohio
corporation to indemnify any Agent shall, unless otherwise required thereby,
affect this Agreement or the parties' rights or obligations hereunder.
15. Headings. Descriptive headings in this Agreement are solely
for convenience and shall not control or affect the construction or
interpretation of any provision herein.
16. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever,
(i) the validity, legality and enforceability of the remaining provisions of the
Agreement (including without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby, and (ii) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable and to give
effect to Section 13 hereof.
17. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
18. Successors and Assigns. The terms of this Agreement shall
bind, and shall inure to the benefit of, the successors, heirs, executors,
administrators, estates, legal representatives and assigns of the parties
hereto; provided, however, that the Indemnitee may not delegate his duties
hereunder; and provided further, that no assignment shall obligate the Company
to provide any indemnification with respect to the actions or failures to act of
any person other than the Indemnitee specifically named herein.
19. Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been given when delivered personally by
overnight carrier or by telecopy with telephonic confirmation of receipt or by
two (2) business days after being deposited in the U.S. mail, certified or
registered, return receipt requested with postage prepaid, and addressed to the
party to whom such notice, request, demand, waiver or other communication is to
be given as follows, or at such other address as either party shall designate by
notice to the other party pursuant to this section:
The Company: ▇▇▇▇▇▇ International Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Chairman of the Board
and Chief Executive Officer
with a required copy to: Chief Legal Counsel
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Indemnitee:
20. Governing Law. This Agreement, and the rights and duties of
the parties hereto under this Agreement, shall be governed exclusively by and
construed in accordance with the laws of the State of Ohio, as applied to
contracts between Ohio residents entered into and to be performed entirely
within Ohio.
21. Consent to Jurisdiction. Except as expressly provided in
Section 8 hereof, the Company and the Indemnitee each hereby irrevocably consent
to the jurisdiction of the courts of the State of Ohio for all purposes in
connection with any action or proceeding which arises out of or relates to this
Agreement and agree that any action instituted under this Agreement shall be
brought only in the state courts of the State of Ohio.
22. Counterparts. This Agreement may be executed in two (2) or
more counterparts, and by each party on separate counterparts, each of which
counterparts shall be deemed an original, but all of which counterparts taken
together shall be one and the same document.
23. Public Policy Determinations. The Company and the Indemnitee
acknowledge that, in certain circumstances, federal law or applicable public
policy may prohibit the Company from indemnifying the Indemnitee under this
Agreement or otherwise. The Indemnitee understands and acknowledges that the
Company has undertaken, and may in the future be required to undertake, to
submit the question of the Company's right under public policy to indemnify the
Indemnitee to a court of appropriate jurisdiction under certain circumstances,
unless, in the opinion of counsel, such matter has been settled by controlling
precedent, and that such determination shall be binding on the Company and the
Indemnitee.
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The parties hereto have entered into this Indemnity Agreement effective
as of the date first above written.
▇▇▇▇▇▇ INTERNATIONAL INC.
By:________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Chairman of the Board
and Chief Executive Officer
INDEMNITEE:
____________________________________