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Exhibit 10.2
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (this “Agreement”) is made as
of the day of
2005 by and between BRUSH
ENGINEERED MATERIALS INC., an Ohio corporation (the
“Company”), and
(the “Indemnitee”), an officer of the Company or one of
its wholly owned subsidiaries.
RECITALS
A. The Indemnitee is presently serving as an officer of the
Company or one of its wholly owned subsidiaries, and the Company
desires the Indemnitee to continue in that capacity. The Indemnitee
is willing, subject to certain conditions (including, without
limitation, the execution and performance of this Agreement by the
Company), to continue in that capacity.
B. In
addition to the indemnification to which the Indemnitee is entitled
under the Code of Regulations of the Company (the
“Regulations”) or otherwise, the Company has obtained,
at its sole expense, insurance protecting the Company and its
Directors and officers including the Indemnitee against certain
losses arising out of actual or threatened actions, suits, or
proceedings to which such persons may be made or threatened to be
made parties. However, as a result of circumstances having no
relation to, and beyond the control of, the Company and the
Indemnitee, there can be no assurance of the continuation or
renewal of that insurance.
Accordingly, and in order to induce the Indemnitee to continue to
serve in his present capacity, the Company and the Indemnitee agree
as follows:
1.
Continued Service . The Indemnitee shall continue to serve
at the will of the Company as an officer of the Company or one of
its wholly owned subsidiaries so long as he is duly elected and
qualified in accordance with the Regulations or until he resigns in
writing in accordance with applicable law.
2.
Initial Indemnity . (a) 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 or an
officer of the Company or is or was serving at the request of the
Company as a director, trustee, officer, employee, or agent of
another corporation, domestic or foreign, nonprofit or for profit,
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, without limitation, fees and expenses of attorneys
and/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, if the Indemnitee acted in good
faith and in a manner which he believed to be in or not opposed to
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.
(b) 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 or an officer
of the Company or is or was serving at the request of the Company
as a director, trustee, officer, employee, or agent of another
corporation, domestic or foreign, nonprofit or for profit,
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, if the Indemnitee acted in
good faith and in a manner which he believed to be in or not
opposed to 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”).
(c) 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 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
obtainable 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 in which
such action, suit, or proceeding was brought.
(d) To the extent that the Indemnitee has been successful on
the merits or otherwise, including, without limitation, 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.
(e) Expenses actually and reasonably incurred by the
Indemnitee in defending any such action, suit, or proceeding 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).
(f) 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 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; and references to the
singular shall include the plural and vice versa.
(g) No amendment to the Amended Articles of Incorporation of
the Company (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.
3.
Additional Indemnification . Pursuant to ORC
Section 1701.13(E)(6), 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 (including any pending, threatened or
completed action, suit or proceeding to which he is or is
threatened to be made a party) made against him because of any
action alleged to have been taken or omitted to be taken, including
any actual or alleged error, misstatement, or misleading statement,
which he commits, suffers, permits, or acquiesces in while acting
in his capacity as a Director or an officer of the Company. The
payments which the Company is obligated to make pursuant to this
Section 3 shall include, without limitation, judgments, fines,
and amounts paid in settlement and any and all Expenses 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:
(i) 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
(ii) 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, without limitation, profit from the purchase
and sale by the Indemnitee of equity securities of the Company
which is 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.
(b) 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).
(c) 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).
4.
Certain Procedures Relating to Indemnification .
(a) For purposes of pursuing his rights to indemnification
under Section 3, the Indemnitee shall (i) submit to the
Board a sworn statement of request for indemnification
substantially in the form of Exhibit 1 attached hereto and
made a part hereof (the “Indemnification Statement”)
stating that he is entitled to indemnification hereunder; and
(ii) present to the Board 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 (i) 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, (ii) such vote shall be
based upon clear and convincing evidence (sufficient to rebut the
foregoing presumption), and (iii) the Indemnitee shall have
received within such period notice in writing of such vote, w
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