EXHIBIT
10.11
SPARTAN MOTORS,
INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is made as
of the day _____ of ______________, 20___, by and between SPARTAN
MOTORS, INC., a Michigan corporation (the "Company"), and
______________________ ("Indemnitee"), a director and/or officer of
the Company.
Indemnitee is a [director][executive officer] of the
Company. It is essential to the Company to attract and retain as
[directors][executive officers] the most capable persons
available. The Company's Articles of Incorporation, as approved by
its shareholders, provide that the Company's
[directors][executive officers] shall be indemnified as of
right to the fullest extent permitted by law. This Agreement
implements that provision. In partial consideration of Indemnitee's
agreement to serve as a [director][executive officer] of the
Company, the parties are entering into this Agreement.
THEREFORE, the Company and Indemnitee agree:
Section 1.
Definitions . As used in this
Agreement:
(a) "Expenses" shall mean all
reasonable costs, expenses, and obligations actually paid or
incurred in connection with investigating, litigating, being a
witness in, defending, or participating in, or preparing to
litigate, defend, be a witness in, or participate in any matter
that is the subject of a Proceeding (as defined below), including,
without limitation, any attorney, accountant and expert fees and
court costs.
(b) "Proceeding" shall mean any
threatened, pending, or completed action, suit or proceeding, or
any inquiry or investigation, whether brought by or in the right of
the Company or otherwise, and whether of a civil, criminal,
administrative, or investigative nature, in which Indemnitee is,
may be, or may have been involved as a party or otherwise by reason
of the fact that Indemnitee is or was a director, officer,
employee, or agent of the Company and/or any one or more of its
subsidiaries, or by reason of any action taken by Indemnitee, or
any inaction on Indemnitee's part, while acting as a director,
officer, employee, or agent of the Company and/or any one or more
of its subsidiaries, or by reason of the fact that Indemnitee is or
was elected, appointed or serving at the request of the Company
and/or any one or more of its subsidiaries as a director, officer,
partner, trustee, employee, agent or fiduciary of any other foreign
or domestic corporation, partnership, joint venture, trust or other
enterprise, whether for profit or not.
(c) "Resolution Costs" shall
include any amount paid in connection with a Proceeding and in
satisfaction of a judgment, fine or penalty, or any amount paid in
settlement of a Proceeding.
(d) "Change in Control" shall
mean a change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A
issued under the Securities Exchange Act of 1934, as amended (the
"Act")whether or not the Company is subject to Regulation 14A.
Without limiting the inclusiveness of the definition in the
preceding sentence, a Change in Control of the Company shall be
deemed to have occurred as of the first day that any one or more of
the following conditions is satisfied: (a) any Person is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Company representing
20% or more of the combined voting power of the Company's then
outstanding securities; (b) the failure at any time of the
Continuing Directors to constitute at least a majority of the board
of directors of the Company; (c) during any period of two
consecutive years, individuals who at the beginning of such period
constitute the board of directors of the company cease for any
reason to constitute a majority of the board of directors; or (d)
any of the following occur: (i) any merger or consolidation of the
Company, other than a merger or consolidation in which the voting
securities of the Company immediately prior to the merger or
consolidation continue to represent (either by remaining
outstanding or being converted into securities of the surviving
entity) 80% or more of the combined voting power of the Company or
surviving entity immediately after the merger or consolidation with
another entity; (ii) any sale, exchange, lease, mortgage, pledge,
transfer or other disposition (in a single transaction or a series
of related transactions) of assets or earning power aggregating
more than 50% of the assets or earning power of the Company on a
consolidated basis; (iii) any complete liquidation or dissolution
of the Company; (iv) any reorganization, reverse stock split or
recapitalization of the Company which would result in a Change in
Control as otherwise defined herein; or (v) any transaction or
series of related transactions having, directly or indirectly, the
same effect as any of the foregoing.
(e) "Continuing Directors" means
the individuals who were either (a) serving as directors of the
Company on
, 2005,
or (b) subsequently appointed or elected as a director, if
appointed or nominated by at least a majority of the Continuing
Directors in office at the time of the nomination or
appointment.
(f) "Person" has the same meaning
as set forth in Sections 13(d) and 14(d)(2) of the Act.
(g) A "Potential Change in
Control" shall be deemed to have occurred if (i) the Company
enters into an agreement, the consummation of that would result in
the occurrence of a Change in Control; (ii) any person (including
the Company) publicly announces an intention to take or to consider
taking actions that once consummated would constitute a Change in
Control; or (iii) the Board of Directors adopts a resolution to the
effect that, for purposes of this Agreement, a Potential Change in
Control has occurred.
Section 2.
Agreement To Serve . Indemnitee agrees to
serve as a director and/or officer of the Company for so long as
Indemnitee is duly elected or appointed or until the tender of
Indemnitee's written resignation.
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Section 3.
Indemnification .
(a) The Company shall indemnify
Indemnitee against all Expenses incurred by Indemnitee in
connection with any Proceeding, except as otherwise provided in
this Agreement. The Company shall indemnify Indemnitee against all
Resolution Costs incurred by Indemnitee in connection with any
Proceeding other than a Proceeding by or in the right of the
Company, except as otherwise provided in this Agreement. The
Company or a person challenging indemnification has the burden of
proving that indemnification is not permitted by this Agreement.
However, no indemnification shall be made under this Section if and
to the extent that such Expenses or Resolution Costs are:
(i) with respect to remuneration
paid to Indemnitee if it shall be determined by a final judgment or
other final adjudication that such remuneration was in violation of
law;
(ii) on account of any suit in
which judgment is rendered against Indemnitee for an accounting of
profits made from the purchase and sale by Indemnitee of securities
of the Company pursuant to the provisions of Section 16 of the Act
and amendments thereto, or similar provisions of any federal,
state, or local law;
(iii) on account of Indemnitee's
conduct which is determined by a final judgment or other final
adjudication to have been knowingly fraudulent, deliberately
dishonest, or engaged in willful misconduct;
(iv) on account of Indemnitee's
conduct which by a final judgment or other final adjudication is
determined to have not been in good faith, to have not been
believed by Indemnitee to have been in or not opposed to the best
interests of the Company, or to have produced an unlawful personal
benefit;
(v) with respect to a criminal
proceeding if Indemnitee knew or had reasonable cause to believe
that Indemnitee's conduct was unlawful; or
(vi) with respect to a Proceeding
in which a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful.
(b) In addition to any
indemnification provided under Subsection 3(a) above, the Company
shall indemnify Indemnitee against any Expenses or Resolution Costs
incurred by Indemnitee, regardless of the nature of the Proceeding
in which Expenses and/or Resolution Costs were incurred, if the
Expenses or Resolution Costs would have been covered, insured or
reimbursed under any insurance policy in effect on the effective
date of this Agreement or that become effective on any later
date.
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(c) It is the intent of this
Agreement that, in addition to any indemnification provided under
Subsections 3(a) and 3(b), the Company shall indemnify Indemnitee
to the fullest extent allowed by law as presently or hereafter
enacted or interpreted, against any Expenses and Resolution Costs
incurred by Indemnitee in connection with any Proceeding. If, and
to the extent that a change in, or in the implementation or
interpretation of, the Michigan Business Corporation Act (whether
by statute, regulation, judicial decision or otherwise) permits
greater indemnification, either by agreement or otherwise, than
presently provided by law or this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement
the greater benefits so afforded by such change.
(d) Without limiting Indemnitee's
right to indemnification under any other provision of this
Agreement, the Company shall indemnify Indemnitee in accordance
with the provisions of this Subsection if Indemnitee is a party to
or threatened to be made a party to or otherwise involved in any
Proceeding by or in the right of the Company to procure a judgment
in its favor by reason of the fact that Indemnitee was or is a
director, officer, employee, or agent of the Company and/or any one
or more of its subsidiaries or is or was serving at the request of
the Company and/or any one or more of its subsidiaries as a
director, officer, partner, trustee, employee, agent, or fiduciary
of another foreign or domestic corporation, partnership, joint
venture, trust, or other enterprise, whether for profit or not,
against all Expenses and Resolution Costs incurred by Indemnitee,
but only if Indemnitee acted in good faith and in a manner that
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company; except that no indemnification shall be
made under this Subsection in respect of any claim, issue, or
matter as to which Indemnitee shall have been adjudged to be liable
to the Company in the performance of his duty to the Company
unless, and only to the extent that, any court in which such
Proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
relevant circumstances, Indemnitee is fairly and reasonably
entitled to indemnity, in which event indemnification shall be
limited to reasonable expenses incurred.
(e) Notwithstanding any other
provision of this Agreement, prior to a Change in Control
Indemnitee shall not be entitled to indemnification pursuant to
this Agreement in connection with any Proceeding initiated by
Indemnitee against the Company or any director, officer, employee,
agent, or fiduciary of the Company (in such capacity) unless the
Company has joined in or consented to the initiation of such
Proceeding or such Proceeding relates to the enforcement by
Indemnity of Indemnitee's rights under this Agreement.
(f) Indemnitee shall, as a
condition precedent to indemnification under this Agreement, give
written notice to the Company as soon as practicable of any claim
for which indemnification will or could be sought under this
Agreement. In addition, Indemnitee shall give the Company such
information and cooperation as the Company may reasonably
require.
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(g) Notwithstanding any other
provision of this Agreement, no indemnification shall be paid in
violation of Michigan or federal laws and regulations.
Section 4.
Payment of Indemnification .
(a) The Company shall pay or
reimburse Indemnitee all Expenses and Resolution Costs for which
Indemnitee is entitled to indemnification under Section 3, upon
written demand for such payment or reimbursement from Indemnitee,
promptly if, when and to the extent that a determination has been
made, or deemed to have been made, in the manner provided in this
Section 4 that Indemnitee is entitled to indemnification under
Section 3.
(b) A determination as to whether
or not Indemnitee is entitled to indemnification shall be made, no
later than 30 days after receipt by the Company of a written demand
of Indemnitee for such payment or reimbursement, by: (i) a majority
vote of a quorum of directors who are not parties or threatened to
be made parties to such Proceeding; (ii) if a quorum cannot be
obtained under subsection (i), a majority vote of a committee of
two or more directors, duly designated by the board, who are not
parties or threatened to be made parties to such Proceeding; or
(iii) if a quorum as described in subsection (i) cannot be obtained
and a committee as described in subsection (ii) cannot be
designated, the board of directors shall select independent legal
counsel. If such determination is not referred to independent legal
counsel, the board of directors, or committee provided in this
subsection, shall be deemed to have made a determination that
Indemnitee is entitled to Indemnification under Section 3 and that
the Expenses and Resolution Costs are reasonable, unless within
that 30 day period, such board or committee dete
