INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (this “Agreement”) made this
day of
, 20 by and between Myers
Industries, Inc., an Ohio corporation (the “Company”),
and
, a member of the Board of Directors of the Company (the
“Indemnitee”);
A. Section 1701.59
of the Ohio Revised Code provides that the business and affairs of
a corporation shall be managed by or under the direction of its
Board of Directors;
B. The
Company and the Indemnitee are each aware of the exposure to
litigation of officers, directors and representatives of the
Company as such persons exercise their duties to the
Company;
C. The
Company and the Indemnitee are also aware of conditions in the
insurance industry that have affected and may affect in the future
the Company’s ability to obtain appropriate directors’
and officers’ liability insurance on an economically
acceptable basis;
D. The
Company desires to continue to benefit from the services of highly
qualified, experienced and otherwise competent persons such as the
Indemnitee; and
E. The
Indemnitee desires to serve or to continue to serve the Company as
a Director of the Company, or, if requested to do so by the
Company, as a director, officer, trustee, employee, representative
or agent of another corporation, joint venture, trust or other
enterprise in which the Company has a direct or indirect ownership
interest, for so long as the Company continues to provide on an
acceptable basis adequate and reliable indemnification against
certain liabilities and expenses which may be incurred by the
Indemnitee.
NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants
herein contained, the parties hereto agree as follows:
(a) The Company
shall indemnify the Indemnitee with respect to Indemnitee’s
activities as a director, officer, employee or agent, to the
fullest extent permitted by law and/or the Company’s Articles
of Incorporation or Code of Regulations with respect to the
Indemnitee’s actions or inactions as a director, officer,
employee or agent of the Company, whether prior to, or after the
date hereof, and/or as a person who is serving or has served at the
request of the Company as a director, officer, trustee, employee,
representative or agent of another corporation, joint venture,
trust or other enterprise, domestic or foreign, in which the
Company has a direct or indirect ownership interest (an
“affiliated entity”), against expenses (including,
without limitation, attorneys’ fees, judgments, fines,
penalties, assessments, damages and amounts paid in settlement)
actually and reasonably incurred by the Indemnitee
(“Expenses”) in connection with any claim against the
Indemnitee which is the subject of any threatened, pending or
completed action, suit or other type of proceeding, whether civil,
criminal, administrative, investigative or otherwise and whether
formal or informal (a “Proceeding”), to which
the
Indemnitee was
or is threatened to be made a party by reason of anything done or
not done by the Indemnitee in any such capacity.
(b) The rights of
the Indemnitee hereunder shall be in addition to any rights the
Indemnitee may now or hereafter have to indemnification by the
Company or otherwise. More specifically, the parties hereto intend
that the Indemnitee shall be entitled to receive, as determined by
the Indemnitee, payment to the maximum extent permitted by one or
any combination of the following:
(i) the payments
provided by the Company’s Amended Regulations in effect on
the date hereof, a copy of the relevant portions of which are
attached hereto as Exhibit A;
(ii) the payments
provided by the Company’s Articles of Incorporation or the
Company’s Code of Regulations, or their equivalent in effect
at the time Expenses are incurred by the Indemnitee;
(iii) the payments
allowable under Ohio law in effect at the date hereof or as such
laws may from time-to-time hereafter be amended;
(iv) the payments
allowable under the law of the jurisdiction under which the Company
is incorporated at the time Expenses are incurred by the
Indemnitee;
(v) the payments
available under liability insurance obtained by the Company;
and
(vi) such other
payments as are or may be otherwise available to the
Indemnitee.
Combination of
two or more of the payments provided by (i) through
(vi) shall be available to the extent that the Applicable
Document, as hereafter defined, does not require that the payments
provided therein be exclusive of other payments. The document or
law providing for any of the payments listed in items
(i) through (vi) above is referred to in this Agreement
as the “Applicable Document”. The Company hereby
undertakes to use its best efforts to assist the Indemnitee, in all
proper and legal ways, to obtain the payments selected by the
Indemnitee under items (i) through (vi) above.
(c) For purposes
of this Agreement, references to an “other enterprise”
shall include employee benefit plans for employees of the Company,
of any affiliated entity, or of its subsidiaries without regard to
ownership of such 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 as a
director, officer, trustee, employee, representative or agent of
the Company 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; references to the singular shall include the
plural and vice versa; and if the Indemnitee acted in good faith
and in a manner that the Indemnitee reasonably believed to be in
the interest of the participants and beneficiaries of an employee
benefit plan, the
2
Indemnitee
shall be deemed to have acted in a manner consistent with the
standards required for indemnification by the Company under the
Applicable Documents.
2.
Insurance . The Company shall maintain directors’
and officers’ liability insurance which is at least as
favorable to the Indemnitee as the policy in effect on the date
hereof and for so long as the Indemnitee’s services are
covered hereunder, provided and to the extent that such insurance
is available on a reasonable commercial basis (taking into account
the scope and amount of coverage available relative to the cost).
The Indemnitee shall, however, continue to be entitled to the
indemnification rights provided hereunder regardless of whether
liability or other insurance coverage is at any time obtained or
retained by the Company. Any payments in fact made to the
Indemnitee under an insurance policy obtained or retained by the
Company shall reduce the obligation of the Company to make payments
hereunder by the amount of the payments made under any such
insurance policy. In the event that insurance becomes unavailable
in the amount or scope of coverage of the policy in effect on the
date hereof on a reasonable commercial basis and the Company
foregoes maintenance of all or a portion of such insurance
coverage, the Company shall stand as a self-insurer with respect to
the coverage, or portion thereof, not retained, and shall indemnify
the Indemnitee against any loss arising out of the reduction or
cancellation of such insurance coverage.
3.
Payment of Expenses . At the Indemnitee’s request,
the Company shall pay the Expenses as and when incurred by the
Indemnitee, after receipt of written notice pursuant to
Paragraph 6 hereof and an undertaking in the form of
Exhibit B attached hereto by or on behalf of the Indemnitee
(i) to repay such amounts so paid on the Indemnitee’s
behalf if it shall ultimately be determined under the Applicable
Document that the Indemnitee is required to repay such Expenses and
(ii) to reasonably cooperate with the Company concerning the
Proceeding. That portion of Expenses which represents
attorneys’ fees and other costs incurred in defending any
Proceeding shall be paid by the Company within thirty
(30) days of its receipt of such notice, together with
reasonable documentation (consistent, in the case of
attorneys’ fees, with Company practice in payment of legal
fees) evidencing the amount and nature of such Expenses, subject to
its also having received such a notice and undertaking.
4.
Additional Rights . The indemnification provided in this
Agreement shall not be exclusive of any other indemnification or
right to which the Indemnitee may be entitled and shall continue
after the Indemnitee has ceased to occupy a position as an officer,
director or representative as described in Paragraph 1 above
with respect to Proceedings relating to or arising out of the
Indemnitee’s acts or omissions during the Indemnitee’s
service in such position.
5.
Notice to Company . The Indemnitee shall provide to the
Company prompt written notice, including a brief description of any
Proceeding brought, threatened, asserted or commenced against the
Indemnitee with respect to which the Indemnitee may assert a right
to indemnification hereunder; provided that failure to provide such
notice shall not in any way limit the Indemnitee’s rights
under this Agreement unless, and only to the extent that, the
Company did not otherwise learn of such Proceeding and such failure
by the Indemnitee to provide prompt notice results in forfeiture by
the Company of substantial defenses, rights or insurance coverage,
or otherwise materially prejudices the ability of the Company to
defend against any claim asserted.
3
6.
Cooperation in Defense and Settlement . The Indemnitee
shall not make any admission or effect any settlement with respect
to a Proceeding without the Company’s written consent
un
|
