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EXHIBIT 10.47
FORM OF AMENDED AND RESTATED INDEMNITY
AGREEMENT
This
Amended and Restated Indemnity Agreement (this " Agreement
") is entered into on
, 200_, by and between LEAR CORPORATION, a Delaware corporation
(the " Company "), and
(" Indemnitee ") and amends and restates, in its entirety,
the Indemnity Agreement dated August 3, 2005 by and between
the Company and Indemnitee.
RECITALS
WHEREAS, the Company’s Amended and Restated
Certificate of Incorporation (the " Charter ") requires
indemnification of the Company’s directors and permits
indemnification of the Company’s officers to the fullest
extent permitted by law; the Company’s Bylaws (the "
Bylaws ") require indemnification of the Company’s
officers and directors if such officers and/or directors, as the
case may be, meet the applicable standard of conduct under the
circumstances; and Indemnitee may also be entitled to
indemnification pursuant to the Delaware General Corporation Law
(the " DGCL ").
WHEREAS, the Charter, Bylaws and the DGCL expressly provide
that the indemnification provisions set forth therein are not
exclusive, and thereby contemplate that contracts may be entered
into between the Company and members of the Board of Directors of
the Company (the " Board ") and officers of the Company with
respect to indemnification, hold harmless, exoneration, advancement
of expenses and reimbursement rights.
WHEREAS, the statutes and judicial decisions regarding the
duties of directors and officers are often difficult to apply,
ambiguous, or conflicting, and therefore fail to provide such
directors and officers with adequate, reliable knowledge of legal
risks to which they are exposed or information regarding the proper
course of action to take.
WHEREAS , directors and officers of companies and other
business enterprises are being increasingly subjected to expensive
and time-consuming litigation relating to, among other things,
matters that traditionally would have been brought only against the
Company or business enterprise itself.
WHEREAS, plaintiffs often seek damages in such large amounts
and the costs of litigation may be so great (whether or not the
case is meritorious), that the defense and/or settlement of such
litigation is usually beyond the personal resources of directors
and officers.
WHEREAS , the uncertainties relating to insurance and to
indemnification have increased the difficulty of attracting and
retaining such persons.
WHEREAS , the Board has determined that the increased
difficulty in attracting and retaining such persons is detrimental
to the best interests of the Company and its stockholders and that
the Company should act to assure such persons that there will be
increased certainty of such protection in the future.
WHEREAS , it is reasonable, prudent and necessary for the
Company contractually to obligate itself to indemnify, hold
harmless, exonerate and to advance expenses on behalf of, such
persons to the fullest extent permitted by applicable law so that
they will serve or continue to serve the Company free from undue
concern that they will not be so protected against such
liabilities.
WHEREAS , this Agreement is a supplement to, and in
furtherance of, the Charter and Bylaws (and any resolutions adopted
pursuant thereto) and any insurance purchased by the Company with
respect to the matters set forth in this Agreement, and shall not
be deemed a substitute therefor, nor to diminish or abrogate any
rights of Indemnitee thereunder.
WHEREAS , Indemnitee may not be willing to serve as an
officer or director without adequate protection, and the Company
desires Indemnitee to serve in such capacity. Indemnitee is willing
to serve, continue to serve and to take on additional service for
or on behalf of the Company on the condition that he or she be so
indemnified by the Company.
NOW, THEREFORE , in consideration of the premises and the
covenants contained herein, the Company and Indemnitee do hereby
covenant and agree as follows:
1. Services to the
Company . Indemnitee will serve or continue to serve, at the
will of the Company, as an officer or director of the Company for
so long as Indemnitee is duly elected or appointed or until
Indemnitee tenders his or her resignation.
2.
Definitions . As used in this Agreement:
(a)
" Affiliated Entity " means, with respect to Indemnitee, an
entity or person (i) for which Indemnitee serves as a
director, managing director, officer, trustee, general partner or
in any other similar capacity, (ii) that controls, is
controlled by, or is under common control with Indemnitee or any
Affiliated Entity or (iii) that is an immediate family member
of Indemnitee. " Control " shall mean the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of an entity, whether
through the ownership of voting securities, by contract or
otherwise. " Immediate family member " of Indemnitee
includes Indemnitee’s spouse (whether or not such person
resides with Indemnitee), parents, stepparents, children,
stepchildren, siblings, mothers and fathers-in-law, sons and
daughters-in-law, and brothers and sisters-in-law and any other
person (other than a tenant or employee) sharing Indemnitee’s
household.
(b)
" Beneficial Owner " and " Beneficial Ownership "
shall have the meaning given to such term in Rule 13d-3 under
the Exchange Act.
(c) A
" Change in Control " shall be deemed to occur as of the
first day any one or more of the following events occur:
(i) Any Person becomes the
Beneficial Owner, directly or indirectly, of securities of the
Company representing more than twenty-five percent (25%) of the
combined voting power of the Company’s then outstanding
securities.
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(ii) During any period of
twenty-six (26) consecutive months (not including any period
prior to the execution of this Agreement), individuals who at the
beginning of that period constitute the Board cease for any reason
(other than death, disability or voluntary retirement) to
constitute a majority of the Board. For this purpose, any new
directors whose election by the Board or nomination for election by
the Company’s stockholders was approved by a vote of at least
two-thirds of the directors then still in office, and who either
were directors at the beginning of the period or whose election or
nomination for election was so approved, will be deemed to have
been a director at the beginning of any twenty-six (26) month
period under consideration.
(iii) The stockholders of the
Company approve: (A) a plan of complete liquidation or
dissolution of the Company; (B) an agreement for the sale or
disposition of all or substantially all the Company’s assets;
or (C) a merger, consolidation or reorganization of the
Company with or involving any other corporation, other than a
merger, consolidation or reorganization that would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity)
at least eighty percent (80%) of the combined voting power of the
voting securities of the Company (or the surviving entity)
outstanding immediately after the merger, consolidation, or
reorganization.
provided , however , that a Change in Control
shall not be deemed to result upon the occurrence of the events in
(i), (ii) or (iii) above if such events occurred as a
result of any actions taken by, or that were initiated by, an
Affiliated Entity or Affiliated Entities.
(d)
" Corporate Status " shall mean the status of a person who
is or was a director, officer, trustee, general partner, managing
member, fiduciary, employee or agent of the Company or of any other
Enterprise for which such person is or was serving at the request
of the Company.
(e)
" Delaware Court " shall mean the Court of Chancery of the
State of Delaware.
(f)
" Disinterested Director " shall mean a director of the
Company who is not and was not a party to the Proceeding in respect
of which indemnification is sought by Indemnitee.
(g)
" Enterprise " shall mean the Company, any Subsidiary of the
Company and any other corporation, constituent corporation
(including any constituent of a constituent) absorbed in a
consolidation or merger to which the Company (or any of its wholly
owned subsidiaries) is a party, partnership, limited liability
company, joint venture, trust, employee benefit plan or other
enterprise of which Indemnitee is or was serving at the request of
the Company as a director, officer, trustee, general partner,
managing member, employee, agent or fiduciary.
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(h)
" Exchange Act " shall mean the Securities Exchange Act of
1934, as amended.
(i)
" Expenses " shall include all reasonable direct and
indirect costs, fees and expenses of any type or nature, including,
without limitation, all reasonable attorneys’ fees and costs,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, fees of private investigators and
professional advisors, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, fax
transmission charges, secretarial services and all other
disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating, being or preparing to be a witness in,
settlement or appeal of, or otherwise participating in, a
Proceeding. Expenses also shall include Expenses incurred in
connection with any appeal resulting from any Proceeding, including
without limitation the premium, security for, and other costs
relating to any cost bond, supersedeas bond, or other appeal bond
or its equivalent. Expenses, however, shall not include amounts
paid in settlement by Indemnitee or the amount of judgments or
fines against Indemnitee.
(j)
" Independent Counsel " shall mean a law firm, or a member
of a law firm, that is experienced in matters of corporation law
and neither presently is, nor in the past five years has been,
retained to represent: (i) the Company, Indemnitee or any
Affiliated Entity in any matter material to such party (other than
with respect to matters concerning the Indemnitee under this
Agreement, or of other indemnitees under similar indemnification
agreements), or (ii) any other party to the Proceeding giving
rise to a claim for indemnification, hold harmless or exoneration
hereunder. Notwithstanding the foregoing, the term "Independent
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 Company or
Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
(k)
" Person " shall have the meaning as set forth in Sections
13(d) and 14(d) of the Exchange Act as in effect on the date
hereof; provided, however, that Person shall exclude (i) the
Company; (ii) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company; and
(iii) any corporation owned, directly or indirectly, by the
Company’s stockholders in substantially the same proportion
as their ownership of stock of the Company.
(l)
" Proceeding " shall include any threatened, pending or
completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing, appeal
or any other actual, threatened or completed proceeding, whether
brought in the right of the Company or otherwise and whether of a
civil (including intentional or unintentional tort claims),
criminal, administrative or investigative nature, in which
Indemnitee was, is or will be involved as a party or otherwise by
reason of the fact that Indemnitee is or was a director or officer
of the Company, by reason of any action (or failure to act) taken
by him or her or of any action (or failure to act) on his or her
part while acting as a director or officer of the Company, or by
reason of the fact that he or she is or was serving at the request
of the Company as a director, officer, trustee, general partner,
managing member, fiduciary, employee or agent of any other
Enterprise, in each case whether or not serving in such capacity at
the time any liability or expense is incurred for which
indemnification, holding harmless, exoneration, reimbursement, or
advancement of expenses can be provided under this Agreement.
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(m)
" Subsidiary " shall mean, with respect to any Person, any
corporation or other entity of which a majority of the voting power
of the voting equity securities or equity interests is owned,
directly or indirectly, by that Person.
(n)
(i) References to " fines " shall include any excise
tax assessed on Indemnitee with respect to any employee benefit
plan; (ii) references to " serving at the request of the
Company " shall include any service as a director, officer,
employee, agent or fiduciary of the Company which imposes duties
on, or involves services by, such director, officer, employee,
agent or fiduciary with respect to an employee benefit plan, its
participants or beneficiaries; (iii) none of the
Company’s directors or officers who serves as a director,
officer, trustee, general partner, managing member, fiduciary,
employee or agent for an entity, other than the Company or its
Subsidiaries or affiliated entities (including employee benefit
plans), shall be deemed to be " serving at the request of the
Company " for purposes of this Agreement without an express
authorizing resolution adopted by the Board or a committee thereof;
and (iv) If Indemnitee acted in good faith and in a manner he
or she reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan,
Indemnitee shall be deemed to have acted in a manner " not
opposed to the best interests of the Company " as referred to
in this Agreement.
3. Indemnity in
Third-Party Proceedings . The Company shall indemnify, hold
harmless and exonerate Indemnitee in accordance with the provisions
of this Section 3 if Indemnitee is, or is threatened to be
made, a party to or a participant (as a witness or otherwise) in
any Proceeding, other than a Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this
Section 3, Indemnitee shall be indemnified, held harmless and
exonerated against all Expenses, judgments, liabilities, fines and
amounts paid in settlement (including all interest, assessments and
other charges paid or payable in connection with or in respect of
such Expenses, judgments, fines and amounts paid in settlement)
actually and reasonably incurred by Indemnitee or on his or her
behalf in connection with such Proceeding or any claim, issue or
matter therein, if Indemnitee acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best
interests of the Company and, in the case of a criminal Proceeding
had no reasonable cause to believe that his or her conduct was
unlawful.
4. Indemnity in
Proceedings by or in the Right of the Company . The Company
shall indemnify, hold harmless and exonerate Indemnitee in
accordance with the provisions of this Section 4 if Indemnitee is,
or is threatened to be made, a party to or a participant (as a
witness or otherwise) in any Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this
Section 4, Indemnitee shall be indemnified, held harmless and
exonerated against all Expenses, judgments, liabilities, fines and
amounts paid in settlement (including all interest, assessments and
other charges paid or payable in connection with or in respect of
such Expenses, judgments, fines and amounts paid in settlement),
actually and reasonably incurred by him or her on his or her behalf
in connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best
interests of the Company. No indemnification, hold harmless or
exoneration for Expenses, judgments, liabilities, fines and amounts
paid in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such
Expenses, judgments, fines and amounts paid in settlement) shall be
made under this
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Section 4 in respect of any claim, issue or matter as to
which Indemnitee shall have been finally adjudged by a court to be
liable to the Company, unless and only to the extent that any court
in which the Proceeding was brought, or the Delaware 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 such
indemnification, hold harmless and exoneration rights.
5. Indemnification for
Expenses of a Party Who is Wholly or Partly Successful .
Notwithstanding any other provisions of this Agreement, to the
extent that Indemnitee is a party to (or a participant in) and is
successful, on the merits or otherwise, in any Proceeding or in
defense of any claim, issue or matter therein, in whole or in part,
the Company shall indemnify, hold harmless and exonerate Indemnitee
against all Expenses, liabilities, fines and amounts paid in
settlement (including all interest, assessments and other charges
paid or payable in connection with or in respect of such Expenses,
fines and amounts paid in settlement) actually and reasonably
incurred by him or her in connection therewith. If Indemnitee is
not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Company shall indemnify,
hold harmless and exonerate Indemnitee against all Expenses,
liabilities, fines and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, fines and amounts
paid in settlement) actually and reasonably incurred by him or her
or on his or her behalf in connection with each successfully
resolved claim, issue or matter. If the Indemnitee is not wholly
successful in such Proceeding, the Company also shall indemnify,
hold harmless and exonerate Indemnitee against all Expenses,
liabilities, fines and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, fines and amounts
paid in settlement) actually and reasonably incurred in connection
with a claim, issue or matter related to any claim, issue, or
matter on which the Indemnitee was successful. For purposes of this
Section and without limitation, the termination of any claim, issue
or matter in such a Proceeding by dismissal, with or without
prejudice, by reason of settlement, judgment, order or otherwise,
shall be deemed to be a successful result as to such claim, issue
or matter so long as there has been no finding that Indemnitee
(i) did not act in good faith, or (ii) did not act in a
manner reasonably believed to be in or not opposed to the best
interests of the Company, or (iii) with respect to any
criminal proceeding, had reasonable grounds to believe that his or
her conduct was unlawful.
6. Indemnification For
Expenses of a Witness . Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of his
or her Corporate Status, a witness in any Proceeding to which
Indemnitee is not a party, he or she shall be indemnified, held
harmless and exonerated against all Expenses actually and
reasonably incurred by him or her or on his or her behalf in
connection therewith.
7. Additional
Indemnification, Hold Harmless and Exoneration Rights .
(a) Notwithstanding
any limitation in Sections 3, 4, or 5, the Company shall
indemnify, hold harmless and exonerate Indemnitee to the fullest
extent permitted by law if Indemnitee is a party to or threatened
to be made a party to any Proceeding (including a Proceeding by or
in the right of the Company to procure a judgment in its favor)
against all Expenses, judgments, fines, penalties and amounts paid
in settlement (including all interest,
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assessments and other charges paid or payable in connection with
or in respect of such Expenses, judgments, fines, penalties and
amounts paid or payable) actually and reasonably incurred by
Indemnitee in connection with the Proceeding.
(b) For
purposes of Section 7(a), the meaning of the phrase "to the
fullest extent permitted by law" shall include, but not be limited
to:
(i) to the fullest extent
permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the
corresponding provision of any amendment to or replacement of the
DGCL, and
(ii) to the fullest extent
authorized or permitted by any amendments to or replacements of the
DGCL adopted after the date of this Agreement that increase the
extent to which a corporation may indemnify, hold harmless or
exonerate its officers and directors.
8. Exclusions .
Notwithstanding any provision in this Agreement, the Company shall
not be obligated under this Agreement to make any indemnification,
hold harmless or exoneration payment in connection with any claim
made against Indemnitee:
(a) for
which payment has actually been received by or on behalf of
Indemnitee under any insurance policy or other indemnity provision,
except with respect to any excess beyond the amount actually
received under any insurance policy, contract, agreement or other
indemnity provision or otherwise; or
(b) for
an accounting of profits made from the purchase and sale (or sale
and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Exchange Act or similar provisions
of state statutory law or common law; or
(c) prior
to a Change in Control, in connection with any Proceeding (or any
part of any Proceeding) initiated by Indemnitee, including any
Proceeding (or any part of any Proceeding) initiated by Indemnitee
against the Company or its directors, officers, employees or other
indemnitees, unless (i) the Board authorized the Proceeding
(or any part of any Proceeding) prior to its initiation or
(ii) the Company provides the indemnification, hold harmless
or exoneration payment in its sole discretion, pursuant to the
powers vested in the Company under applicable law.
9. Advances of Expenses;
Defense
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