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Director Indemnification Agreement
This Director Indemnification Agreement, dated
as of February 10, 2005 (this " Agreement "), is made
by and between Oglebay Norton Company, an Ohio corporation (the "
Company "), and Thomas O. Boucher, Jr. (the "
Indemnitee "), a Director of the Company.
RECITAL:
The Indemnitee is presently serving as a
Director of the Company, and the Company desires that the
Indemnitee continue serving in such capacity. The Indemnitee is
willing, subject to certain conditions including the execution and
performance of this Agreement by the Company, to continue serving
in such capacity.
AGREEMENT:
NOW, THEREFORE, in order to induce the
Indemnitee to continue to serve in his present capacity, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Indemnitee
agree as follows:
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- Continued Service . The Indemnitee shall continue to
serve at the will of the Company as a Director of the Company so
long as he is duly elected in accordance with the Second Amended
and Restated Articles of Incorporation of the Company (the
"Articles" ) and the Second Amended and Restated Code of
Regulations of the Company (the "Regulations" ) or until he
resigns in writing in accordance with applicable law.
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- Initial Indemnity . The Company shall indemnify the
Indemnitee if or when he is a party or is threatened to be made a
party to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the
Company), by reason of the fact that he is or was a Director of the
Company or is or was serving at the request of the Company as a
director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit,
a limited liability company, or a partnership, joint venture,
trust, or other enterprise, or by reason of any action alleged to
have been taken or omitted in any such capacity, against any and
all costs, charges, expenses (including fees and expenses of
attorneys or others; all such costs, charges, and expenses being
herein jointly referred to as " Expenses "),
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by the Indemnitee in connection therewith,
including any appeal of or from any judgment or decision, unless it
is proved by clear and convincing evidence in a court of competent
jurisdiction that the Indemnitee's 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. In addition, with respect to
any criminal action or proceeding, indemnification hereunder shall
be made only if the Indemnitee had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the Indemnitee did not satisfy the
foregoing standard of conduct to the extent applicable
thereto.
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- The Company shall indemnify the Indemnitee if or when he is a
party or is threatened to be made a party, to any threatened,
pending, or completed action, suit, or proceeding by or in the
right of the Company to procure a judgment in its favor, by reason
of the fact that the Indemnitee is or was a Director of the Company
or is or was serving at the request of the Company as a director,
trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust,
or other enterprise, against any and all Expenses actually and
reasonably incurred by the Indemnitee in connection with the
defense or settlement thereof or any appeal of or from any judgment
or decision, unless it is proved by clear and convincing evidence
in a court of competent jurisdiction that the Indemnitee's 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, except
that no indemnification pursuant to this Section 2(b) shall
be made in respect of any action or suit in which the only
liability asserted against the Indemnitee is pursuant to Section
1701.95 of the Ohio Revised Code (the " ORC ").
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- Any indemnification under Section 2(a) or 2(b)
(unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination that
indemnification of the Indemnitee is proper in the circumstances
because he has met the applicable standard of conduct set forth in
Section 2(a) or 2(b) . Such authorization shall be
made (i) by the Board of Directors of the Company (the "
Board ") by a majority vote of a quorum consisting of
Directors who were not and are not parties to or threatened with
such action, suit, or proceeding, or (ii) if such a quorum of
disinterested Directors is not available or if a majority of such
quorum so directs, in a written opinion by independent legal
counsel (designated for such purpose by the Board) which shall not
be an attorney, or a firm having associated with it an attorney,
who has been retained by or who has performed services for the
Company, or any person to be indemnified, within the five years
preceding such determination, or (iii) by the shareholders of the
Company (the " Shareholders "), or (iv) by the court
of common pleas or other court in which such action, suit, or
proceeding was brought.
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- To the extent that the Indemnitee has been successful on the
merits or otherwise, including the dismissal of an action without
prejudice, in defense of any action, suit, or proceeding referred
to in Section 2(a) or 2(b) , or in defense of any
claim, issue, or matter therein, he shall be indemnified against
Expenses actually and reasonably incurred by him in connection
therewith.
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- Expenses actually and reasonably incurred by the Indemnitee in
defending any action, suit, or proceeding referred to in Section
2(a) or 2(b) , or in defense of any claim, issue or
matter therein, shall be paid by the Company as they are incurred
in advance of the final disposition of such action, suit, or
proceeding under the procedure set forth in Section 4(b)
hereof.
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- For purposes of this Agreement, references to " other
enterprises " shall include employee benefit 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,
employee, member, manager, 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; the word "
including " is used by way of illustration only and
not by way of limitation.
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- No amendment to the Articles or the Regulations shall deny,
diminish, or encumber the Indemnitee's rights to indemnity pursuant
to this Agreement, except to the extent that such amendment is
required by law to be given effect. No amendment to the Articles or
the Regulations shall deny, diminish, or encumber the Indemnitee's
rights to indemnity pursuant to the Articles, the Regulations, the
ORC, 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 was
approved by the Shareholders, except to the extent that such
amendment is required by law to be given effect. In the event that
the Company shall purport to adopt any amendment to its Articles or
Regulations or take any other action the effect of which is to
deny, diminish, or encumber the Indemnitee's rights to indemnity
pursuant to the Articles, the Regulations, the ORC, or any such
other law, such amendment shall apply only to acts or failures to
act occurring entirely after the Effective Date thereof.
- Additional Indemnification . Pursuant to Section
1701.13(E)(6) of the ORC, without limiting any right which the
Indemnitee may have pursuant to Section 2 hereof or any
other provision of this Agreement or the Articles, the Regulations,
the ORC, any policy of insurance, or otherwise, but subject to any
limitation on the maximum permissible indemnity which may exist
under applicable law at the time of any request for indemnity
hereunder and subject to the following provisions of this
Section 3 , the Company shall indemnify the Indemnitee
against any amount which he is or becomes obligated to pay relating
to or arising out of any claim made against him because of any act,
failure to act, or neglect or breach of duty, including any actual
or alleged error, misstatement, or misleading statement, that he
commits, suffers, permits, or acquiesces in while acting in his
capacity as a Director of the Company. The payments which the
Company is obligated to make pursuant to this Section 3
shall include any and all Expenses, judgments, fines, and amounts
paid in settlement, actually and reasonably incurred by the
Indemnitee in connection therewith including any appeal of or from
any judgment or decision; provided , however , that
the Company shall not be obligated under this Section 3 to
make any payment in connection with any claim against the
Indemnitee:
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- to the extent of any fine or similar governmental imposition
which the Company is prohibited by applicable law from paying which
results from a final, nonappealable order; or
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- to the extent based upon or attributable to the Indemnitee
having actually realized a personal gain or profit to which he was
not legally entitled, including profit from the purchase and sale
by the Indemnitee of equity securities of the Company which are
recoverable by the Company pursuant to Section 16(b) of the
Securities Exchange Act of 1934, or profit arising from
transactions in publicly traded securities of the Company which
were effected by the Indemnitee in violation of Section 10(b) of
the Securities Exchange Act of 1934, or Rule 10b-5 promulgated
thereunder.
- A determination as to whether the Indemnitee shall be entitled
to indemnification under this Section 3 shall be made in
accordance with Section 4(a) hereof.
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- Expenses incurred by the Indemnitee in defending any claim to
which this Section 3 applies shall be paid by the Company as
they are actually and reasonably incurred in advance of the final
disposition of such claim under the procedure set forth in
Section 4(b) hereof.
- Certain Procedures Relating to Indemnification . For
purposes of pursuing his rights to indemnification under Section
3 hereof, the Indemnitee shall (i) submit to the Board a sworn
statement of request for indemnification substantially in the form
of Exhibit l attached hereto and made a part hereof (the "
Indemnification Statement ") averring that he is
entitled to indemnification hereunder; and (ii) present to the
Company reasonable evidence of all amounts for which
indemnification is requested. Submission of an Indemnification
Statement to the Board shall create a presumption that the
Indemnitee is entitled to indemnification hereunder, and the
Company shall, within 60 calendar days after submission of the
Indemnification Statement, make the payments requested in the
Indemnification Statement to or for the benefit of the Indemnitee,
unless (A) within such 60-calendar-day period the Board shall
resolve by vote of a majority of the Directors at a meeting at
which a quorum is present that the Indemnitee is not entitled to
indemnification under Section 3 hereof, (B) such vote shall
be based upon clear and convincing evidence (sufficient to rebut
the foregoing presumption), and (C) the Board shall notify
Indemnitee within such period of such vote, which notice shall
disclose with particularity the evidence upon which the vote is
based. The foregoing notice shall be sworn to by all persons who
participated in the vote and voted to deny indemnification. The
provisions of this Section 4(a) are intended to be
procedural only and shall not affect the right of Indemnitee to
indemnification under Section 3 of this Agreement so long as
Indemnitee follows the prescribed procedure, and any determination
by the Board that Indemnitee is not entitled to indemnification and
any failure to make the payments requested in the Indemnification
Statement shall be subject to judicial review by any court of
competent jurisdiction.
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- For purposes of obtaining payments of Expenses in advance of
final disposition pursuant to Section 2(e) or Section
3(c) hereof, the Indemnitee shall submit to the Company a sworn
request for advancement of Expenses substantially in the form of
Exhibit 2 attached hereto and made a part hereof (the "
Under
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