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EXHIBIT 10.8
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is made as of [
] by and between Ryerson Inc., a Delaware corporation (the
"Company"), and [
] ("Indemnitee").
RECITALS
WHEREAS, highly competent persons have become more reluctant to
serve publicly held corporations as directors, officers or in other
capacities unless they are provided with adequate protection
through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their
service to and activities on behalf of the corporation;
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that, in order to attract and retain qualified
individuals, the Company will attempt to maintain on an ongoing
basis, at its sole expense, liability insurance to protect persons
serving the Company and its subsidiaries from certain liabilities.
Although the furnishing of such insurance has been a customary and
widespread practice among United States-based corporations and
other business enterprises, the Company believes that, given
current market conditions and trends, such insurance may be
available to it in the future only at higher premiums and with more
exclusions. At the same time, directors, officers, and other
persons in service to corporations or 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 corporation
or business enterprise itself. The By-laws of the Company require
indemnification of the officers and directors of the Company.
Indemnitee may also be entitled to indemnification pursuant to the
General Corporation Law of the State of Delaware ("DGCL"). The
By-laws 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, officers and other persons
with respect to indemnification;
WHEREAS, the uncertainties relating to such 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’s 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, 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
indemnified;
WHEREAS, this Agreement is a supplement to and in furtherance of
the By-laws of the Company and any resolutions adopted pursuant
thereto, and shall not be deemed a substitute therefor, nor to
diminish or abrogate any rights of Indemnitee thereunder;
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WHEREAS, Indemnitee does not regard the
protection available under the Company’s By-laws and
insurance as adequate in the present circumstances, and 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 be so indemnified; and
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, the Company and Indemnitee do hereby
covenant and agree as follows:
Section 1. Services to the Company
Indemnitee agrees to serve as a director or an officer of the
Company. Indemnitee may at any time and for any reason resign from
such position (subject to any other contractual obligation or any
obligation imposed by operation of law), in which event the Company
shall have no obligation under this Agreement to continue
Indemnitee in such position. This Agreement shall not be deemed an
employment contract between the Company (or any of its subsidiaries
or any Enterprise) and Indemnitee. Indemnitee specifically
acknowledges that Indemnitee’s employment with the Company
(or any of its subsidiaries or any Enterprise), if any, is at will,
and the Indemnitee may be discharged at any time for any reason,
with or without cause, except as may be otherwise provided in any
written employment contract between Indemnitee and the Company (or
any of its subsidiaries or any Enterprise), other applicable formal
severance policies duly adopted by the Board, or, with respect to
service as a director or officer of the Company, by the
Company’s Certificate of Incorporation, the Company’s
By-laws, and the General Corporation Law of the State of Delaware.
The foregoing notwithstanding, this Agreement shall continue in
force after Indemnitee has ceased to serve as a director or an
officer of the Company.
Section 2. Definitions
As used in this Agreement:
(a) A "Change in Control" shall be deemed to have occurred
if:
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than (w) the Company, (x) a
trustee or other fiduciary holding voting securities under an
employee benefit plan of the Company, (y) an underwriter
temporarily holding voting securities pursuant to an offering of
such securities, or (z) a corporation owned, directly or
indirectly, by the security holders of the Company in substantially
the same proportions as their ownership of voting securities of the
Company, is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of voting
securities of the Company (not including in the voting securities
beneficially owned by such person any voting securities acquired
directly from the Company or its affiliates) representing 20% or
more of the combined voting power of the Company’s then
outstanding voting securities;
(ii) during any period of two consecutive years (not including
any period prior to the execution of this Agreement), individuals
who at the beginning of such period constitute the Board and any
new director whose election by the Board or nomination for election
by the Company’s security holders was approved by a vote of
at least two-thirds (2/3) of the directors
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then still in office who either were directors at
the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute a majority thereof, provided, however, that no director
designated by a person who has entered into an agreement with the
Company to effect a transaction described in clauses (i),
(iii) or (iv) of this Subsection 2(a) shall be deemed a
Continuing Director for the purposes of this clause (ii) and,
provided, further that if any new director assumes office in
connection with or as a result of an actual or threatened proxy or
other election contest of the Board, then the nomination or
election of such new director shall not constitute, or be deemed to
constitute, an approval by the Continuing Directors for purposes of
this Subsection 2(a);
(iii) there occurs a merger or consolidation of the Company with
any other corporation, other than a merger or consolidation which
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), in combination with the ownership of any
trustee or other fiduciary holding voting securities under an
employee benefit plan of the Company, at least 60% of the combined
voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation, or a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which
no person acquires more than 50% of the combined voting power of
the Company’s then outstanding voting securities; or
(iv) the holders of voting securities of the Company approve a
plan of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of
the Company’s assets.
(v) there occurs:
(A) a sale or disposition, directly or indirectly, other than to
a person described in subclause (w), (x) or (z) of clause
(i) of this Subsection 2(a), of voting securities of
Indemnitee’s employer, any direct or indirect parent company
of Indemnitee’s employer or any company that is a subsidiary
of Indemnitee’s employer and is also a significant subsidiary
(as defined below) of the Company (Indemnitee’s employer and
such a parent or subsidiary being a "Related Company"),
representing 50% or more of the combined voting power of the
securities of such Related Company then outstanding;
(B) a merger or consolidation of a Related Company with any
other corporation, other than:
(1) a merger or consolidation which would result in the voting
securities of the Related Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity),
in combination with the ownership of any trustee or other fiduciary
holding voting securities under an employee benefit plan of the
Company, at least 60% of the combined voting power of the voting
securities of the Related Company or such surviving entity
outstanding immediately after such merger or consolidation;
(2) a merger or consolidation effected to implement a
recapitalization of the Related Company (or similar transaction) in
which no person acquires more than 50% of the combined voting power
of the Related Company’s then outstanding voting securities;
or
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(3) a merger or consolidation which would result
in 50% or more of the combined voting power of the surviving
company being beneficially owned by the Company or by a majority
owned direct or indirect subsidiary of the Company; or
(C) the sale or disposition of all or substantially all the
assets of a Related Company to a person other than the Company or a
majority owned direct or indirect subsidiary of the Company.
Notwithstanding any other provision of this Agreement, no change
in control of the Company shall be deemed to have occurred under
this Subsection 2(a) if (I) such transaction includes or
involves a sale to the public or a distribution to the stockholders
of the Company of more than 50% of the voting securities of
Indemnitee’s employer or a direct or indirect parent of
Indemnitee’s employer, and (II) Indemnitee’s employer
or a direct or indirect parent of Indemnitee’s employer
agrees to become a successor to the Company under this Agreement or
Indemnitee is covered by an agreement providing for benefits upon a
change in control of Indemnitee’s employer following an event
described in this Subsection 2(a). For purposes of this Agreement,
the term "significant subsidiary" has the meaning given to such
term under Rule 405 of the Securities Act of 1933, as amended.
(b) "Corporate Status" describes the status of a person who is
or was a director, officer, employee or agent of the Company or of
any other corporation, partnership or joint venture, trust,
employee benefit plan or other enterprise which such person is or
was serving at the request of the Company.
(c) "Disinterested Director" means 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.
(d) "Enterprise" shall mean the Company and any other
corporation, partnership, 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, employee, agent
or fiduciary.
(e) "Expenses" shall include all reasonable attorneys’
fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees,
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, 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,
supersedes 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.
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(f) "Independent Counsel" means 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 or Indemnitee in any
matter material to either 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 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. The Company agrees to pay the
reasonable fees and expenses of the Independent Counsel referred to
above and to fully indemnify such counsel against any and all
Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant
hereto.
(g) The term "Proceeding" shall include any threatened, pending
or completed action, suit, arbitration, alternate dispute
resolution mechanism, investigation, inquiry, administrative
hearing or any other actual, threatened or completed proceeding,
whether brought in the right of the Company or otherwise and
whether of a civil, 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 taken
by him or her or of any action on his or her part while acting as
director or officer of the Company, or by reason of the fact that
he is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, in each case whether or
not serving in such capacity at the time any liability or expense
is incurred for which indemnification, reimbursement, or
advancement of expenses can be provided under this Agreement;
except one initiated by a Indemnitee to enforce his or her rights
under this Agreement.
(h) Reference to "other enterprise" shall include employee
benefit plans; references to "fines" shall include any excise tax
assessed 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 or agent of the Company which
imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the best interests
of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in manner "not opposed to the best
interests of the Company" as referred to in this Agreement.
Section 3. Indemnity in Third-Party
Proceedings
The Company shall indemnify 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 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 against all
Expenses, judgments, fines
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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.
Section 4. Indemnity in Proceedings by or in the
Right of the Company
The Company shall indemnify 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 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 against all Expenses actually and reasonably incurred
by him or her 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. No
indemnification for Expenses shall be made under this
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 the Delaware
Court of Chancery or any court in which the Proceeding 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
indemnification.
Section 5. Indemnification for Expenses of a Party
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 Indemnitee against all Expenses
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 Indemnitee against all
Expenses 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 Indemnitee against all
Expenses 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, shall be deemed
to be a successful result as to such claim, issue or matter.
Section 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 against all Expenses actually
and reasonably incurred by him or her or on his or her behalf in
connection therewith.
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Section 7. Additional
Indemnification
(a) Notwithstanding any limitation in Sections 3, 4, or 5, the
Company shall indemnify Indemnitee to the fullest extent permitted
by
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