EXHIBIT
10.3
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement,
dated as of October 10, 2006, is made by and among Remy
Worldwide Holdings, Inc., a Delaware corporation, and Remy
International, Inc., a Delaware corporation (collectively or
severally the “Company”), and [
] (the “Indemnitee”).
BACKGROUND
The Company and Indemnitee recognize
the increasing difficulty in obtaining liability insurance for
directors and officers, the significant increases in the cost of
such insurance and the general reductions in the coverage of such
insurance. The Company and Indemnitee further 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. Indemnitee does not regard the current
protection available as adequate under the present circumstances,
and Indemnitee may not be willing to continue to serve as an
officer or director of the Company without additional
protection.
The Company’s Bylaws require
the Company to indemnify its directors and officers to the fullest
extent permitted by the Delaware General Company Law (the
“DGCL”). The Bylaws expressly provide that the
indemnification provisions set forth therein are not exclusive, and
contemplate that contracts may be entered into between the Company
and its directors and officers with respect to indemnification. The
Company desires and has requested Indemnitee to serve or continue
to serve as a director or officer of the Company free from undue
concern for unwarranted claims for damages arising out of or
related to such services to the Company. Indemnitee is willing to
serve, continue to serve or to provide additional service for or on
behalf of the Company on the condition that he is furnished the
indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, in consideration of
the mutual covenants and agreements set forth below, and other good
and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
Section 1. Generally
.
To the fullest extent permitted by
the laws of the State of Delaware:
(a) The Company shall indemnify
Indemnitee if Indemnitee was or 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, by reason of the fact that Indemnitee is or was or
has agreed to serve at the request of the Company as a director,
consultant, or officer of the Company, or while serving as a
director or officer of the Company, is or was serving or has agreed
to serve at the request of the Company as a director, officer,
employee or agent (which, for purposes hereof, shall include a
trustee, partner or manager or
similar capacity) of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, or by reason of any action alleged to have been taken
or omitted in such capacity.
(b) The indemnification provided by
this Section 1 shall be from and against expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with such action, suit or
proceeding and any appeal therefrom, but shall only be provided if
Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action, suit or
proceeding, had no reasonable cause to believe Indemnitee’s
conduct was unlawful.
(c) Notwithstanding the foregoing
provisions of this Section 1, in the case of any threatened,
pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact
that Indemnitee is or was a director, consultant, or officer of the
Company, or while serving as a director or officer of the Company,
is or was serving or has agreed to serve at the request of the
Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged to be liable to the Company unless, and only to
the extent that, the Delaware Court of Chancery or the court in
which such action or suit was brought 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 which the
Delaware Court of Chancery or such other court shall deem
proper.
(d) The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good
faith and in a manner which Indemnitee 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 reasonable cause
to believe that Indemnitee’s conduct was unlawful.
Section 2. Successful
Defense; Partial Indemnification .
(a) To the extent that Indemnitee
has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1 hereof or
in defense of any claim, issue or matter therein, Indemnitee shall
be indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred in connection therewith. For
purposes of this Agreement and without limiting the foregoing, if
any action, suit or proceeding is disposed of, on the merits or
otherwise (including a disposition without prejudice), without
(i) the disposition being adverse to Indemnitee, (ii) an
adjudication that Indemnitee was liable to the Company,
(iii) a plea of guilty or nolo contendere by Indemnitee,
(iv) an adjudication that Indemnitee did not act in good faith
and in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, and (v) with
respect to any criminal proceeding, an adjudication that Indemnitee
had reasonable cause to believe Indemnitee’s conduct was
unlawful, Indemnitee shall be considered for the purposes hereof to
have been wholly successful with respect thereto.
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(b) If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company
for some or a portion of the expenses (including attorneys’
fees), judgments, fines or amounts paid in settlement actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection with any action, suit, proceeding or investigation,
or in defense of any claim, issue or matter therein, and any appeal
therefrom but not, however, for the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for the portion of
such expenses (including attorneys’ fees), judgments, fines
or amounts paid in settlement to which Indemnitee is
entitled.
Section 3. Advance Payment
of Expenses; Notification and Defense of Claim .
(a) Expenses (including
attorneys’ fees) incurred by Indemnitee in defending a
threatened or pending civil, criminal, administrative or
investigative action, suit or proceeding, or in connection with an
enforcement action pursuant to Section 4(b), shall be paid by
the Company in advance of the final disposition of such action,
suit or proceeding. The Company shall pay the expenses (including
attorneys’ fees) incurred by an indemnitee in defending any
proceeding in advance of its final disposition provided that
the Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be not opposed to the best interests of the
Company or had no reasonable cause to believe the
Indemnitee’s conduct was unlawful. The initial determination
of whether any advance of expenses under this Section 3(a) is
permissible shall be made, at the election of the Indemnitee,
(i) by a majority vote of the disinterested directors not
parties to such proceeding, even though less than a quorum, or
(ii) by a committee of such directors designated by a majority
vote of such directors, even though less than a quorum, or
(iii) by independent legal counsel selected by Indemnitee with
reasonable approval of a majority of the disinterested directors
not parties to such proceeding or an officer duly authorized by the
Board of Directors (such approval to be limited to such legal
counsel’s independence), or (iv) by the stockholders.
The reasonable fees and expenses of any special legal counsel
engaged to determine the permissibility of advance of expenses
shall be borne by the Company. The payment of expenses incurred by
an Indemnitee in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking from such
Indemnitee to repay all amounts advanced if it should be ultimately
determined that the Indemnitee is not entitled to be indemnified
under this Section 3(a) or otherwise. Expenses authorized
under this Section 3(a) shall be paid within thirty
(30) days after receipt by the Company of (i) a statement
or statements from Indemnitee requesting such advance or advances
from time to time, and (ii) an undertaking by or on behalf of
Indemnitee to repay such amount or amounts, only if, and to the
extent that, it shall ultimately be determined that Indemnitee is
not entitled to be indemnified by the Company as authorized by this
Agreement or otherwise. Such undertaking shall be accepted without
reference to the financial ability of Indemnitee to make such
repayment. Advances shall be unsecured and
interest-free.
(b) Promptly after receipt by
Indemnitee of notice of the commencement of any action, suit or
proceeding, Indemnitee shall, if a claim thereof is to be made
against the Company hereunder, notify the Company of the
commencement thereof. The failure to promptly
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notify the Company of the commencement of the
action, suit or proceeding, or Indemnitee’s request for
indemnification, will not relieve the Company from any liability
that it may have to Indemnitee hereunder, except to the extent the
Company is prejudiced in its defense of such action, suit or
proceeding as a result of such failure. In addition, Indemnitee
shall give the Company such information and cooperation as it may
reasonably require and as shall be within Indemnitee’s
power.
(c) In the event the Company shall
be obligated to pay the expenses of Indemnitee with respect to an
action, suit or proceeding, as provided in this Agreement, the
Company, if appropriate, shall be entitled to assume the defense of
such action, suit or proceeding, with counsel reasonably acceptable
to Indemnitee, upon the delivery to Indemnitee of written notice of
its election to do so. After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the
Company, the Company will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by
Indemnitee with respect to the same action, suit or proceeding,
provided that (1) Indemnitee shall have the right to employ
Indemnitee’s own counsel in such action, suit or proceeding
at Indemnitee’s expense and (2) if (i) the
employment of counsel by Indemnitee has been previously authorized
in writing by the Company, (ii) counsel to the Company or
Indemnitee shall have reasonably concluded that there may be a
conflict of interest or position, or reasonably believes that a
conflict is likely to arise, on any significant issue between the
Company and Indemnitee in the conduct of any such defense or
(iii) the Company shall not, in fact, have employed counsel to
assume the defense of such action, suit or proceeding, then the
fees and expenses of Indemnitee’s counsel shall be at the
expense of the Company, except as otherwise expressly provided by
this Agreement.
(d) Notwithstanding any other
provision of this Agreement to the contrary, to the extent that
Indemnitee is, by reason of Indemnitee’s corporate status
with respect to the Company or any corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which
Indemnitee is or was serving or has agreed to serve at the request
of the Company, a witness or otherwise participates in any action,
suit or proceeding at a time when Indemnitee is not a party in the
action, suit or proceeding, the Company shall indemnify Indemnitee
against all expenses (including attorneys’ fees) actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection therewith.
Section 4. Procedure for
Indemnification
(a) To obtain indemnification,
Indemnitee shall promptly submit to the Company a written request,
including therein or therewith such documentation and information
as is reasonably available to Indemnitee and is reasonably
necessary to determine whether and to what extent Indemnitee is
entitled to indemnification. The Company shall, promptly upon
receipt of suc
