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.
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 it
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