Exhibit 10.4
INDEMNIFICATION AGREEMENT
This Indemnification
Agreement (this "
Agreement
") is made and entered into
this ____ day of ________,
2005 between
Collins
Industries,
Inc., a Missouri
corporation (the "
Company
"), and _______________
("
Indemnitee
"),
a director of
the Company.
WHEREAS,
the
Indemnitee
serves
or has
been
nominated
to serve on the
Company's board of directors (the "
Board
") and agrees,
on the condition that he
be so indemnified, to continue to serve or to serve as a director
of the Company
and in such capacity will render services to the Company;
WHEREAS,
the Company is aware that
because of the
increased
exposure to
litigation
subjecting
directors to expensive
litigation
risks,
talented and
experienced persons are increasingly
reluctant to serve or continue to serve as
directors
and
officers
of
corporations
unless
they
are
appropriately
indemnified;
WHEREAS,
the Company is also aware that
statutes and
judicial
decisions
regarding
the duties of directors
and
officers are often
difficult to apply,
ambiguous or conflicting
and therefore fail to provide
directors with adequate
guidance regarding the proper course of action;
WHEREAS,
the Company
desires to attract and retain the services of highly
experienced and capable individuals,
such as Indemnitee,
to serve as directors
of the Company and to
indemnify
its
directors
so as to provide them with the
maximum protection permitted by law;
WHEREAS, the Company believes that it is reasonable,
prudent, fair, proper
and
necessary to protect the
Company's
directors
from the risk of judgments,
fines,
settlements
and
other
expenses
which
may occur as a result of their
service to the Company;
WHEREAS,
in recognition of Indemnitee's
reliance on the provisions of the
Articles of Incorporation of the Company, as amended ("Articles"),
that require
indemnification
of the
Indemnitee,
and in part
to
provide
Indemnitee
with
specific
contractual
assurance that the
protection
promised by such Articles
will be
available
to
Indemnitee
(regardless
of,
among
other
things,
any
amendment to or revocation of such Articles or any change in the
composition of
the Company's
Board or acquisition
transaction
relating to the Company),
the
Company wishes to provide in this Agreement for the
indemnification of, and the
advancement of expenses to,
Indemnitee to the full extent,
whether
partial or
complete, permitted by law and as set forth in this Agreement.
NOW,
THEREFORE,
in
consideration
of the premises and for other good and
valuable
consideration,
the
receipt
and
sufficiency
of
which
are
hereby
acknowledged, the Company and Indemnitee,
intending to be legally bound, hereby
agree as follows:
SECTION 1. Definitions. For purposes of this Agreement, the
following terms
shall have the meanings set forth below:
(a)
"
Change of Control
"
shall be deemed to have
occurred in any one
of the following
circumstances
occurring after the date hereof: (i) there
shall have
occurred an event
required to be reported
with respect to the
Company in response to Item 6(e) of
Schedule 14A of
Regulation
14A (or in response to any similar item or any
similar
schedule or form) under the
Securities
Exchange Act of 1934,
as
amended (the
"
Exchange
Act
"),
regardless
of whether the Company is then
subject to such reporting
requirement,
(ii) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act) shall have
become the
"beneficial
owner"
(as
defined in Rule 13d-3
under the
Exchange
Act),
directly or indirectly,
of securities of the Company
representing
15% or
more of the combined voting power of the Company's then outstanding
voting
securities, (iii) the Company is a party to a merger,
consolidation,
sale
of assets or other reorganization,
or a proxy contest, as a consequence of
which members of the Board in office
immediately prior to such transaction
or event constitute less than a majority of the Board thereafter,
(iv) all
or substantially all the assets of the Company are sold or disposed
of in a
transaction or series of related
transactions,
or (v) the individuals who
on the date hereof constitute the Board (including,
for this purpose,
any
new director
whose
election or
nomination
for election by the Company's
shareholders was approved by a vote of at least two-thirds of the
directors
then still in office who were
directors on the date hereof)
cease for any
reason to constitute at least a majority of the Board.
(b)
"
Enterprise
"
means any
Person of which
Indemnitee
is or was a
Fiduciary.
(c)
"
Expenses
"
means
all
direct
and
indirect
costs
(including,
without limitation,
attorneys' fees, retainers,
court costs, transcripts,
fees of experts,
witness fees, travel expenses,
appeal bonds, duplicating
costs,
printing and binding costs,
telephone charges,
postage,
delivery
service
fees,
and all
other
disbursements
or
out-of-pocket
expenses)
actually and
reasonably
incurred in connection
with (i) any
Proceeding,
(ii) establishing or enforcing any right to
indemnification or advancement
of expenses under this Agreement,
applicable law, any other agreement,
or
any provision of the Company's
Articles of
Incorporation or Bylaws now or
hereafter in effect or otherwise,
or (iii) the review and
preparation
of
this Agreement on behalf of Indemnitee;
provided, however, that "Expenses"
shall not include any Liabilities.
(d)
"
Fiduciary
" means an individual
serving as a director,
officer,
trustee, general partner, managing member,
fiduciary,
board of directors'
committee member,
employee or agent of (i) the Company, (ii) any resulting
corporation
in
connection
with a
consolidation
or
merger to which the
Company
is a party,
or (iii)
any other
Person
(including
an
employee
benefit
plan) at the request of the
Company,
including
any service with
respect to an employee benefit plan, its participants or its
beneficiaries.
(e)
"
Independent
Counsel
"
means a law
firm,
or a member
of a law
firm, that is experienced in matters of corporate law and neither
currently
is, nor in the five years
previous to its
selection
or
appointment
has
been, retained to represent (i) the Company or the Indemnitee in
any matter
material
to either
such party
(other than as
Independent
Counsel
with
respect to matters concerning the rights of Indemnitee under this
Agreement
or of other indemnities under similar
indemnification
agreements) or (ii)
any
other
party
to
the
Proceeding
giving
rise
to
a
claim
for
indemnification
hereunder.
For the
avoidance
of doubt,
any law firm or
member of a law firm that shall have
advised
either party with respect to
the review
and
preparation
of this
Agreement
shall not be
Independent
Counsel for the purposes of this Agreement.
(f)
"
Liabilities
"
means liabilities of any type whatsoever
incurred
by reason of (i) the fact that
Indemnitee
is or was a Fiduciary,
or (ii)
any action
taken (or failure to act) by him or her or on his or her behalf
in the capacity of Fiduciary, including, but not limited to, any
judgments,
fines (including any excise taxes assessed on Indemnitee with
respect to an
employee benefit plan), ERISA excise taxes and penalties, and
penalties and
amounts paid in
settlement
of any
Proceeding
(including
all
interest,
assessments
and other
charges
paid or payable in
connection
with or in
respect of such judgments, fines, penalties or amounts paid in
settlement).
(g)
"
Person
" means any individual,
corporation,
partnership,
joint
venture,
firm,
association,
limited liability
company,
trust,
estate,
governmental unit or other enterprise or entity.
(h)
"
Proceeding
"
means
any
threatened,
pending
or
completed
investigation,
civil or criminal action,
third-party
action,
derivative
action, claim, suit, arbitration,
counterclaim,
cross claim,
alternative
dispute resolution mechanism, inquiry,
administrative hearing or any other
proceeding
whether
civil,
criminal,
administrative,
legislative
or
investigative,
including
any appeal
therefrom
in which
Indemnitee
was
involved, or threatened to be involved, as a party, witness or
otherwise by
reason of (i) the fact that
Indemnitee is or was a Fiduciary,
or (ii) any
action
taken (or
failure to act) by him or her or on his or her behalf in
the capacity of Fiduciary.
(i)
"
Subsidiary
"
means
any
Person
of
which
a
majority
of
the
outstanding
voting
securities or other voting equity interests are owned,
directly or indirectly by the Company.
SECTION 2. Services by the Indemnitee. The Indemnitee agrees to
continue to
serve,
or to serve, as a director of the Company at the will of the
Company for
so long as the Indemnitee is duly elected and qualified, appointed
or until such
time as the
Indemnitee
tenders a
resignation
in
writing
or is removed as a
director in accordance
with the Missouri
General and Business
Corporation Law
(the "
MGBCL
"),
or the Company's Bylaws as amended from time to time;
provided,
however,
the
Indemnitee
may at any time and for any reason
resign
from such
position.
SECTION 3. Indemnification.
(a)
Indemnification.
Subject
to
the
further
provisions
of
this
Agreement,
the Company hereby agrees to and shall indemnify Indemnitee and
hold
him or her
harmless
from
and
against
any
and all
Expenses
and
Liabilities
incurred
by
Indemnitee
or on
Indemnitee's
behalf,
to the
fullest
extent
permitted by applicable
law in effect on the date hereof,
and to such
greater
extent as
applicable
law may
thereafter
permit or
authorize.
(b)
Presumptions.
(i)
Upon
making
any
request
for
indemnification
under this
Agreement,
Indemnitee
shall
be
presumed
to be
entitled
to
such
indemnification and, in connection with any determination with
respect
to
entitlement
to
indemnification
under
Section 4(c) hereof,
the
Company
shall
have the
burdens
of
coming forward with clear and convincing evidence and of persuasion
to
overcome that
presumption in connection with the making by any Person
of any determination contrary to that presumption. Neither the
failure
of
any
Person
to
have
made
such
determination
prior
to
the
commencement
of
any
action
pursuant
to
this
Agreement
that
indemnification is proper in the circumstances
because Indemnitee has
met the applicable standard of conduct, nor an actual determination
by
any Person
that
Indemnitee
has not met any
applicable
standard of
conduct, shall be a defense to any such action by Indemnitee or
create
a presumption
that Indemnitee has not met the applicable
standard of
conduct.
(ii) For purposes of any determination of good faith,
Indemnitee
shall be deemed to have acted in good faith if Indemnitee's
action is
based on the records or books of account of any Enterprise,
including
financial statements,
or on information supplied to Indemnitee by the
officers of such
Enterprise in the course of their duties,
or on the
advice of legal
counsel
for such
Enterprise
or on
information
or
records
given or reports made to such
Enterprise
by an
independent
certified
public
accountant
or
by an
appraiser
or
other
expert
selected by such Enterprise. The provisions of this Section 3(b)
shall
not be
deemed
to be
exclusive
or to
limit
in any way
the
other
circumstances
in which
Indemnitee may be deemed or found to have met
the applicable standard of conduct set forth in this Agreement.
(iii) If the Person
empowered
or selected
under
Section
4(c)
hereof to determine whether
Indemnitee is entitled to indemnification
shall not have made a
determination
within ninety (90) calendar days
after
the
final
determination
in
the
Proceeding,
the
requisite
determination
of
entitlement to
indemnification
shall be deemed to
have
been
made
and
Indemnitee
shall
be
entitled
to
such
indemnification, absent (A) a misstatement by Indemnitee of a
material
fact, or an omission of a material fact necessary to make
Indemnitee's
statement not materially
misleading,
in connection
with the request
for
indemnification,
or (B) a
prohibition
of such
indemnification
under applicable law.
(iv) The
knowledge
and/or
actions,
or failure to act,
of any
other
Fiduciary
shall not be imputed to
Indemnitee
for purposes of
determining any right to indemnification under this Agreement.
(c)
Effect
of
Certain
Proceedings.
The
termination
of
any
Proceeding by judgment,
order, settlement,
conviction or upon a plea
of nolo contendre or its
equivalent,
shall not, of itself,
create a
presumption
that Indemnitee did not act in good faith and in a manner
reasonably
believed to be in or not opposed to the best
interests of
the
Company,
and
with
respect
to any
criminal
Proceeding,
that
Indemnitee had reason to believe his or her conduct was unlawful.
SECTION 4. Advance of Expenses; Indemnification Procedure.
(a)
Notice by Indemnitee
and Claim for
Indemnification.
Indemnitee
shall,
as
promptly as
reasonably
practicable
under the
circumstances,
notify the Company in
writing upon being served with any summons, citation, subpoena,
complaint,
indictment, information or other document relating to any
Proceeding or any
other
matter which may be subject to
indemnification
of
Liabilities
or
advancement of Expenses covered by this Agreement;
provided however,
that
any delay or failure to so notify the Company
shall relieve the Company of
its obligations
hereunder only to the extent,
if at all, that the Company
is actually and
materially
prejudiced by reason of such delay or failure.
Notice to the Company shall be directed to the [officer] of the
Company, at
the addresses
shown on the signature page of this Agreement (or such other
address
as the
Company
shall
designate
in writing
to
Indemnitee)
in
accordance with Section 17 hereof. To obtain indemnification or
advancement
of Expenses under this Agreement, Indemnitee shall submit a written
request
therefor,
which shall
include a reasonably
comprehensive
accounting
of
amounts for which indemnification is being sought and shall refer
to one or
more of the
provisions of this
Agreement
pursuant to which such claim is
being made and may
designate
that
payment
be made to another
Person on
Indemnitee's behalf.
(b)
Advancement
of Expenses.
The Company shall advance all Expenses
incurred
by
Indemnitee
or on
Indemnitee's
behalf,
without
regard
to
Indemnitee's
ultimate
entitlement
to
indemnification
under
the
other
provisions of this Agreement.
Indemnitee
hereby
undertakes to repay such
amounts
advanced
unless
Indemnitee is entitled to be
indemnified by the
Company.
Any advance,
and undertakings to repay pursuant to this Section,
shall be unsecured
and interest
free.
The advances to be made
hereunder
shall be paid by the Company to Indemnitee within thirty (30)
calendar days
following delivery of any written request, from time to time, by
Indemnitee
to the
Company.
Any
overdue
amount of such
Expenses
to be paid by the
Company hereunder shall bear interest,
compounded monthly, at a rate of 8%
per annum.
Advances payable hereunder shall include any and all reasonable
Expenses
incurred pursuing an action to enforce this right of advancement,
including
Expenses incurred preparing and forwarding any statements to the
Company to support the advances claimed.
(c)
Determination of Entitlement to Indemnification. A determination,
if expressly
required by
applicable
law,
with
respect to
Indemnitee's
entitlement to
indemnification
hereunder shall be made within ninety (90)
calendar days after final determination in the Proceeding by (i) a
majority
vote of the Board who are not parties to the Proceeding in respect
of which
indemnification is sought by Indemnitee, 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) if there are no such
directors,
or if such
directors so direct,
by
Independent
Counsel in a
written opinion to the Board (a copy of which opinion shall be
delivered to
Indemnitee),
or
(iv)
if so
directed
by the
Board,
by a
vote
of the
shareholders; provided, however, that if there has been a Change of
Control
at or
prior
to the
time
of
such
notice
by
Indemnitee,
Indemnitee's
entitlement
to
indemnification
shall be determined
within the foregoing
time
period
by
Independent
Counsel
selected
by
Indemnitee,
such
determination
to be set fort
