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Exhibit
10.21
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION
AGREEMENT, dated as of February 5, 2007 (this
“Agreement”), is made and entered into by and between
Shiloh Industries, Inc., a Delaware corporation (the
“Company”), and
(“Indemnitee”).
WHEREAS, it is
essential to the Company to retain and attract as directors and
officers the most capable persons available;
WHEREAS, Indemnitee is
a director and/or officer of the Company;
WHEREAS, both the
Company and Indemnitee recognize the increased risk of litigation
and other claims being asserted against directors and officers of
companies in today’s environment;
WHEREAS, the
Company’s Certificate of Incorporation (the
“Certificate”) provides that the Company will indemnify
its directors and officers to the fullest extent permitted by law,
and Indemnitee’s willingness to serve and/or willingness to
continue to serve as a director and/or officer of the Company is
based in part on Indemnitee’s reliance on such provisions;
and
WHEREAS, in
recognition of Indemnitee’s need for substantial protection
against personal liability in order to enhance Indemnitee’s
continued service to the Company in an effective manner, and
Indemnitee’s reliance on the aforesaid provisions of the
Certificate, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by such
provisions will be available to Indemnitee regardless of, among
other things, any amendment to or revocation of such provisions or
any change in the composition of the Company’s Board of
Directors (the “Board”) or any acquisition or business
combination transaction relating to the Company, the Company wishes
to provide in this Agreement for the indemnification of and the
advancement of expenses to Indemnitee as set forth in this
Agreement.
NOW, THEREFORE, in
consideration of the mutual agreements herein set forth, the
parties hereto hereby agree as follows:
1. Certain Definitions
.
1.1. Claim . The term
“Claim” shall mean any threatened, pending or completed
action, suit or proceeding, or any inquiry or investigation that
Indemnitee in good faith believes might lead to the institution of
any such action, suit or proceeding, whether civil, criminal,
administrative, investigative or other.
1.2. Indemnifiable
Event . The term “Indemnifiable Event” shall mean
any actual or asserted event or occurrence related to the fact that
Indemnitee is or was a director,
officer, employee, agent, or fiduciary
of the Company, or is or was serving at the request of the Company
as a director, officer, employee, trustee, agent, or fiduciary of
another corporation, partnership, joint venture, employee benefit
plan, trust, enterprise or other entity, or anything done or not
done by Indemnitee in any such capacity.
2. Basic Indemnification
Arrangement .
(a) In the event Indemnitee
was, is or becomes a party to or other participant in, or is
threatened to be made a party to or other participant in, a Claim
(other than an action by or in the right of the Company) by reason
of (or arising in whole or in part out of) an Indemnifiable Event,
the Company shall indemnify Indemnitee to the fullest extent
permitted by law against any and all costs, charges and expenses,
including, without limitation, reasonable attorneys’ fees and
other fees and expenses, judgments, fines and amounts paid in
settlement (including all interest, assessments and other charges
paid or payable in connection with or in respect of any such
attorneys’ fees and other fees and expenses, judgments, fines
or amounts paid in settlement) actually and reasonably incurred by
Indemnitee in connection with such Claim or any appeal therefrom,
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, with respect to any criminal action,
proceeding or investigation, had no reasonable cause to believe his
or her conduct was unlawful.
(b) In the event Indemnitee
was, is or becomes a party to or other participant in, or is
threatened to be made a party to or other participant in, a Claim
by or in the right of the Company to procure a judgment in its
favor by reason of (or arising in whole or in part out of) an
Indemnifiable Event, the Company will indemnify Indemnitee to the
fullest extent permitted by law against costs, charges and
expenses, including, without limitation, reasonable
attorneys’ fees and other fees and expenses, actually and
reasonably incurred by Indemnitee in connection with such Claim or
any appeal therefrom, 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, except that no indemnification shall
be made in respect of any such Claim as to which Indemnitee shall
have been adjudged to be liable to the Company unless and only to
the extent that the Court of Chancery or the court in which such
action, suit or 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 indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
(c) 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 Claim referred to in Sections 2(a) or
2(b) hereof, Indemnitee shall be indemnified against costs, charges
and expenses (including reasonable attorneys’ fees and other
fees and expenses) actually and reasonably incurred by him or her
in connection therewith.
(d) Subject to
Section 3(a), any indemnification under Sections 2(a) and
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 Indemnitee has satisfied the applicable standard set forth
in Sections 2(a) and 2(b). Subject to Section 4(a), such
determination shall be made with respect to a person who is a
director or officer at the time of such determination (i) by a
majority vote of the disinterested directors who are not parties to
such action, suit or proceeding even though less than a quorum, or
(ii) by a committee of such disinterested directors designated
by majority vote of such disinterested directors, even though less
than a quorum, or (iii) if there are not such disinterested
directors or if such disinterested directors direct, by independent
legal counsel in a written opinion, or (iv) by the
stockholders of the Company (the “Stockholders”) by a
majority vote of Stockholders present at a meeting at which a
quorum is present. Independent legal counsel shall be designated by
vote of a majority of the disinterested directors; provided
, however , that if the Board is unable or fails to so
designate, such designation shall be made by the Indemnitee,
subject to the approval of the Company which shall not be
unreasonably withheld. Independent legal counsel shall not be any
person or firm who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in
representing either the Company or the Indemnitee in an action to
determine the Indemnitee’s rights under this Agreement. The
Company agrees to pay the reasonable fees and expenses of such
independent legal counsel and to indemnify fully such counsel
against costs, charges and expenses, including, without limitation,
attorneys’ fees and other fees and expenses, actually and
reasonably incurred by such counsel in connection with this
Agreement or the opinion of such counsel pursuant
hereto.
(e) All expenses, including,
without limitation, reasonable attorneys’ fees and other fees
and expenses, incurred by an officer or director in his or her
capacity as a director or officer of the Company in connection with
a Claim shall be paid by the Company in advance of the final
disposition of such Claim in the manner prescribed by
Section 3(b) hereof.
3. Certain Procedures
Relating to Indemnification and Advancement of Expenses
.
(a) Except as otherwise
permitted or required by the General Corporation Law of the State
of Delaware, as amended (the “DGCL”), for purposes of
pursuing any rights to indemnification under Sections 2(a), 2(b) or
4(a) hereof, as the case may be, Indemnitee may, but shall not be
required to, (i) submit to the entity making the determination
whether the Indemnitee is entitled to indemnification (the
“Determining Entity”) a written statement of request
for indemnification stating that he or she is entitled to
indemnification hereunder and the basis for asserting such a claim
for indemnification; and (ii) present to the Company
reasonable evidence of all expenses for which payment is requested.
Submission of such a written statement to the Determining Entity
shall create a rebuttable presumption that the Indemnitee is
entitled to indemnification under Sections 2(a), 2(b) or 4(a)
hereof, as the case may be, and the Determining Entity shall be
deemed to have determined that Indemnitee is entitled to such
indemnification unless within thirty (30) calendar days after
receipt of such written statement, the Determining Entity shall
determine (i) in the case of a determination made by a
majority vote of the disinterested directors who are not parties to
such suit, action or proceeding even though less than a quorum,
(ii) in the case of a determination made by a committee of
disinterested directors by majority vote, (iii) in the case of
a determination made
by independent legal counsel, in its
judgment, or (iv) in the case of a determination made by the
Stockholders, by a vote of a majority of the Stockholders present
at a meeting of Stockholders entitled to vote thereon at a meeting
at which a quorum is present, in each case based upon clear and
convincing evidence (sufficient to rebut the foregoing presumption)
that Indemnitee is not entitled to indemnification and Indemnitee
shall have received notice within such thirty (30) calendar
day period in writing of such determination that Indemnitee is not
so entitled to indemnification. The notice to the Indemnitee
specified in the preceding sentence shall disclose with
particularity the evidence in support of the Determining
Entity’s determination. The provisions of this
Section 3(a) are intended to be procedural only and shall not
affect the right of Indemnitee to indemnification under this
Agreement and any determination by the Determining Entity that the
Indemnitee is not entitled to indemnification and any failure to
make the payments requested in the written statement for
indemnification shall be subject to judicial review as provided in
Section 7 hereof.
(b) For purposes of
determining whether to authorize advancement of expenses pursuant
to Section 2(e) hereof, Indemnitee shall submit to the Board a
sworn statement of request for advancement of expenses
substantially in the form of Exhibit 1 attached hereto and made a
part hereof (the “Undertaking”), averring that
(i) he or she has reasonably incurred or will reasonably incur
actual expenses in connection with a Claim, and (ii) he or she
undertakes to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the
Company under this Agreement or otherwise. For purposes of
requesting advancement of expenses pursuant to Section 4(b)
hereof, Indemnitee shall submit an Undertaking or such other form
of request as he or she determines to be appropriate (an
“Expense Request”). Upon receipt of an Undertaking or
Expense Request, as the case may be, the Board shall within ten
(10) calendar days authorize immediate payment of the expenses
stated in the Undertaking or Expense Request, as the case may be,
upon such terms and conditions, if any, as the Board deems
appropriate, whereupon and upon agreement of the Indemnitee of such
terms and conditions, such payments shall immediately be made by
the Company.
4. Indemnification for
Additional Expenses .
(a) Pursuant to
Section 145(f) of the DGCL, without limiting any right which
Indemnitee may have pursuant to Section 2 hereof, the
Certificate, the By-Laws of the Company (the
“By-Laws”), the DGCL, any policy of insurance or
otherwise, but subject to the limitations on the maximum
permissible indemnity which may exist under applicable law at the
time of any request for indemnity hereunder determined as
contemplated by this Section 4(a), the Company shall indemnify
Indemnitee against any amount which he or she is or becomes legally
obligated to pay relating to or arising out of any Claim because of
any act, failure to act or neglect or breach of duty, including any
actual or alleged error, misstatement or misleading statement, by
reason of an Indemnifiable Event. The payments which the Company is
obligated to make pursuant to this Section 4(a) shall include,
without limitation, damages, judgments, settlements and charges,
costs, expenses, expenses of inve
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