EXHIBIT 10.2
OREGON STEEL XXXXX
INDEMNIFICATION AGREEMENT
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THIS INDEMNIFICATION AGREEMENT, made and entered into this 18th day of
January, 2002 ("Agreement"), by and between OREGON STEEL XXXXX, INC., a
Delaware corporation (the "Company") and (the "Officer").
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In consideration of the mutual promises in this Agreement, and intending to be
legally bound, the Company and Officer do hereby covenant and agree as follows:
SECTION 1. SERVICES BY OFFICER.
Officer agrees to serve as of the Company so long as [he] is duly
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appointed or elected and qualified in accordance with the applicable provisions
of the Restated Certificate of Incorporation and Bylaws of the Company or any
subsidiary of the Company and until such time as [he] resigns or fails to stand
for election. Officer may at any time and for any reason resign from such
position (subject to any other contractual obligation or other obligation
imposed by operation of law), in which event the Company shall have no
obligation under this Agreement to continue Officer in any such position.
SECTION 2. INDEMNIFICATION.
The Company shall indemnify Officer to the fullest extent permitted by
applicable law or the Restated Certificate of Incorporation of the Company in
effect on the date hereof or as such laws or Restated Certificate of
Incorporation may from time to time be amended (but, in the case of any such
amendment, only to the extent such amendment permits the Company to provide
broader indemnification rights than the law or Restated Certificate of
Incorporation permitted the Company to provide before such amendment). The right
to indemnification conferred in the Restated Certificate of Incorporation shall
be presumed to have been relied upon by Officer in serving or continuing to
serve the Company and shall be enforceable as a contract right. Without in any
way diminishing the scope of the indemnification provided by this Section 2, the
Company will indemnify Officer if and whenever [he] is or was a party or is
threatened to be made a party to any Proceeding, including without limitation
any such Proceeding brought by or in the right of the Company, by reason of the
fact that [he] is or was an Agent or by reason of anything done or not done by
[him] in such capacity, against Expenses and Liabilities actually and reasonably
incurred by Officer or on [his] behalf in connection with the investigation,
defense, settlement or appeal of such Proceeding. No initial finding by the
Board, its counsel, Independent Counsel, arbitrators or the stockholders shall
be effective to deprive Officer of the protection of this indemnity, nor shall a
court to which Officer may apply for enforcement of this indemnity give any
weight to any such adverse finding in deciding any issue before it, as it is
intended that Officer shall be paid promptly by the Company all amounts
necessary to effectuate the foregoing indemnity in full. In addition to, and not
as a limitation of, the foregoing, the rights of indemnification of Officer
provided under this Agreement shall include those rights set forth in Sections
3, 6 and 7 below.
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SECTION 3. MAINTENANCE OF INSURANCE AND SELF INSURANCE.
(a) The Company represents that it presently has in force and effect,
and will use reasonable efforts to maintain in force, policies of D
& O Insurance in responsible insurance companies (the "Insurance
Policies").
Subject only to the provisions of Section 2 hereof, the Company
hereby agrees that, so long as Officer shall continue to serve as
an Agent of the Company (or shall continue at the request of
Company to serve as a director, Officer, Officer or agent of
another corporation, partnership, joint venture, trust or other
enterprise) and thereafter so long as Officer shall be subject to
any possible claim (whether threatened, pending, criminal, civil or
investigative) by reason of the fact that Officer was an Agent of
the Company, the Company will purchase and maintain in effect for
the benefit of Officer one or more valid, binding and enforceable
policy or policies of D & O Insurance providing, in all respects,
coverage at least comparable to that presently provided pursuant to
the Insurance Policies.
(b) The Company shall not be required to maintain said policy or
policies of D & O Insurance in effect if such insurance is not
reasonably available or if, in the reasonable business judgment of
the then directors of the Company, either (i) the premium cost for
such insurance is substantially disproportionate to the amount of
coverage or (ii) the coverage provided by such insurance is so
limited by exclusions that there is insufficient benefit from such
insurance.
(c) In the event the Company does not purchase and maintain in effect
such policy or policies of D & O Insurance pursuant to the
provisions of Section 2 herein, the Company agrees to hold harmless
and indemnify Officer to the full extent of the coverage which
would otherwise have been provided for the benefit of Officer
pursuant to the Insurance Policies.
SECTION 4. ADVANCEMENT OF EXPENSES AND COSTS; LETTER OF CREDIT.
(a) ADVANCES. All reasonable Expenses incurred by or on behalf of
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Officer shall be advanced by the Company to Officer within 20 days
after the receipt by the Company of a written request for an
advance or advances of Expenses from time to time, whether prior to
or after final disposition of a Proceeding (unless there has been a
final determination that Officer is not entitled to be indemnified
for such Expenses), including without limitation any Proceeding
brought by or in the right of the Company. Officer's entitlement to
advancement of Expenses shall include those incurred in connection
with any Proceeding by Officer seeking an adjudication or award in
arbitration pursuant to this Agreement. The requests shall
reasonably evidence the expenses incurred by Officer in connection
therewith. If required by law at the time of such advance, Officer
hereby undertakes to repay the amounts advanced if it shall
ultimately be determined that Officer is not entitled to be
indemnified pursuant to the terms of this Agreement.
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(b) LETTER OF CREDIT. In order to secure the obligations of the Company
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to indemnify Officer under Section 2 hereof and to advance to
Officer certain amounts under Section 3(a) hereof, the Officer
shall obtain upon the occurrence of any Triggering Event, an
irrevocable standby letter of credit naming Officer as the sole
beneficiary, in an appropriate amount not less than $500,000,
issued by a financial institution having assets in excess of $100
million and containing terms and conditions reasonably acceptable
to Officer (the "Letter of Credit"). The Letter of Credit shall
provide that Officer may from time to time draw certain amounts
thereunder, upon the presentation to the issuer thereof of a
certificate executed by Officer certifying (i) that Officer has
made demand upon the Company for an amount not less than the amount
[he] is drawing upon under the Letter of Credit and that the
Company has refused to provide Officer with such amount and (ii)
that Officer believes that [he] is entitled under the terms of this
Agreement to the amount which [he] is drawing upon under the Letter
of Credit.
(c) TERM OF LETTER OF CREDIT. Once the Company has obtained the Letter
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of Credit required by Section 3(b) hereof, the Company shall
maintain and renew the Letter of Credit or a substitute letter of
credit meeting the criteria of Section 3(b) hereof during the term
of this Agreement in a manner such that the Letter of Credit shall
have an initial term of five years, be renewed for successive
five-year terms, and shall always have at least one year of its
term remaining.
SECTION 5. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) Whenever Officer believes that [he] is entitled to indemnification
pursuant to this Agreement, Officer shall submit a written request
for indemnification to the Company to the attention of the Chairman
of the Board or the Chief Executive Officer with a copy to the
Secretary. This request shall include documentation or information
which is necessary for the determination of entitlement to
indemnification and which is reasonably available to Officer.
Determination of Officer's entitlement to indemnification shall be
made not later than 60 days after any judgment, order, settlement,
dismissal, arbitration award, conviction, acceptance of a plea of
nolo contendere or its equivalent, or other disposition or partial
disposition of any Proceeding or any other event which could enable
the Company to determine Officer's entitlement to indemnification.
The Chairman of the Board or the Chief Executive Officer or the
Secretary shall, promptly upon receipt of Officer's request for
indemnification, advise the Board in writing that Officer has made
such request for indemnification.
(b) The Company shall be entitled to select the forum in which
Officer's entitlement to indemnification will be heard unless a
Triggering Event has occurred, in which case Officer shall be
entitled to select the forum. The Company or Officer, as the case
may be, shall notify the other party in writing as to the forum
selected, which selection shall be from among the following:
(i) The stockholders of the Company;
(ii) A quorum of the Board consisting of Disinterested
Directors;
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(iii) Independent Counsel selected by Officer, and reasonably
approved by the Board, which counsel shall make the
determination in a written opinion; or
(iv) a panel of three arbitrators, one of whom is selected by
the Company, another of whom is selected by Officer and
the last of whom is selected by the first two arbitrators
so selected; or if for any reason three arbitrators are
not selected within 30 days after the appointment of the
first arbitrator, then selection of additional
arbitrators to complete the three person panel shall be
made by the American Arbitration Association under its
commercial arbitration rules now in effect.
SECTION 6. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
Upon making a request for indemnification, Officer shall be presumed to be
entitled to indemnification under this Agreement and the Company shall have the
burden of proof to overcome that presumption in reaching any contrary
determination. If the person or persons so empowered to make the determination
shall have failed to make the requested determination within 60 days after any
judgment, order, settlement, dismissal, arbitration award, conviction,
acceptance of a plea of nolo contendere or its equivalent, or other disposition
or partial disposition of any Proceeding or any other event which could enable
the Company to determine Officer's entitlement to indemnification, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Officer shall be absolutely entitled to indemnification under this
Agreement, absent (i) misrepresentation by Officer of a material fact in the
request for indemnification or (ii) a specific finding that all or any part of
such indemnification is expressly prohibited by law. The termination of any
Proceeding by judgment, order, settlement, arbitration award or conviction, or
upon a plea of nolo contendere or its equivalent, shall not of itself (a)
adversely affect the rights of Officer to indemnification except as may be
provided herein, (b) credit a presumption that Officer did not act in good faith
and in a manner which [he] reasonably believed to be in or not opposed to the
best interests of the Company, or (c) with respect to any criminal action or
proceeding, create a presumption that Officer had reasonable cause to believe
that [his] conduct was unlawful.
SECTION 7. REMEDIES OF OFFICER IN CASES OF DETERMINATION NOT TO INDEMNIFY OR
TO ADVANCE EXPENSES.
(a) In the event that (i) an initial determination is made that Officer
is not entitled to indemnification, (ii) advances are not made
pursuant to this Agreement, (iii) payment has not been timely made
following a determination of entitlement to indemnification
pursuant to this Agreement or (iv) Officer otherwise seeks
enforcement of this Agreement, Officer shall be entitled to a final
adjudication in an appropriate court of the State of Delaware of
[his] entitlement to such indemnification or advance.
Alternatively, Officer at [his] option may seek an award in
arbitration to be conducted by a single arbitrator pursuant to the
commercial arbitration rules of the American Arbitration
Association now in effect, which award is to be made within ninety
(90) days following the filing of the demand for arbitration. The
Company shall not oppose Officer's right to seek any such
adjudication or arbitration award. In any such proceeding or
arbitration,
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Officer shall be presumed to be entitled to indemnification under
this Agreement and the Company shall have the burden of proof to
overcome that presumption.
(b) In the event an initial determination has been made, in whole or in
part, that Officer is not entitled to indemnification, the decision
in the judicial proceeding or arbitration provided in paragraph (a)
of this Section 6 shall be made de novo and Officer shall not be
prejudiced by reason of a determination that [he] is not entitled
to indemnification.
(c) If an initial determination is made or deemed to have been made
pursuant to the terms of this Agreement that Officer is entitled to
indemnification, the Company shall be bound by such determination
in the absence of (i) a misrepresentation of a material fact by
Officer or (ii) a specific finding (which has become final) that
all or any part of such indemnification is expressly prohibited by
law.
(d) The Company shall be precluded from asserting that the procedures
and presumptions of this Agreement are not valid, binding and
enforceable. The Company shall stipulate in any such court or
before any such arbitrator that the company is bound by all the
provisions of this Agreement and is precluded from making any
assertion to the contrary.
(e) Expenses incurred by Officer in connection with [his] request for
indemnification under, seeking enforcement of or to recover damages
for breach of this Agreement shall be borne by the Company.
SECTION 8. OTHER RIGHTS TO INDEMNIFICATION.
Officer's rights of indemnification and advancement of expenses provided by this
Agreement shall not be deemed exclusive of any other rights to which Officer may
now or in the future be entitled under applicable law, the Restated Certificate
of Incorporation, Bylaws, agreement, vote of stockholders, resolution of
directors, or otherwise.
SECTION 9. LIMITATIONS ON INDEMNITY.
The Company shall not be liable under this agreement to make any payment to
Officer to the extent that Officer has already been reimbursed pursuant to such
D & O Insurance as the Company may maintain for Officer's benefit.
Notwithstanding the availability of such insurance, Officer also may claim
indemnification from the Company pursuant to this Agreement by assigning to the
Company any claims under such insurance to the extent Officer is paid by the
Company.
SECTION 10. DURATION AND SCOPE OF AGREEMENT; BINDING EFFECT.
This Agreement shall continue so long as Officer shall be subject to any
possible proceeding by reason of the fact that [he] is or was an Agent and shall
be applicable to Proceedings commenced or continued after execution of this
Agreement, whether arising from acts or omissions occurring before or after such
execution. This Agreement shall be binding upon the Company and its successors
and assigns and shall inure to the benefit of Officer and [his] spouse, assigns,
heirs, devisees, executors, administrators and other legal representatives.
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SECTION 11. SEVERABILITY.
If any provision or provisions of this Agreement (or any portion thereof) shall
be held to be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby; and (b) to the
fullest extent possible, the provisions of this Agreement shall be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
SECTION 12. IDENTICAL COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which shall
for all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the
existence of this Agreement.
SECTION 13. INTERPRETATION OF AGREEMENT.
It is understood that the parties hereto intend this Agreement to be interpreted
and enforced so as to provide indemnification to Officer to the fullest extent
now or hereafter permitted by law.
SECTION 14. HEADINGS.
The headings of the Sections and paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction thereof.
SECTION 15. DEFINITIONS. For purposes of this Agreement:
(a) "Agent" shall mean any person who (i) is or was a director, officer
or employee of the Company or a subsidiary of the Company whether
serving in such capacity or as a director, Officer, Officer, agent,
fiduciary or other official of another entity at the request of,
for the convenience of, or to represent the interests of the
Company or a subsidiary of the Company or (ii) was a director,
Officer or Officer of a corporation which was a predecessor
corporation of the Company or a subsidiary of the Company whether
serving in such capacity or as a director, Officer, Officer, agent,
fiduciary or other official of another entity at the request of,
for the convenience of, or to represent the interests of such
predecessor corporation.
(b) "Disinterested Director" shall mean a director of the Company who
is not or was not a party to the Proceeding in respect of which
indemnification is being sought by Officer.
(c) "Expenses" shall include all direct and indirect costs (including,
without limitation, attorneys' fees, retainers, court costs,
transcripts, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, all other disbursements or
out-of-pocket expenses and reasonable compensation for time spent
by Officer for which [he] is otherwise
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not compensated by the Company or any third party) actually and
reasonably incurred in connection with either the investigation,
defense, settlement or appeal of a Proceeding or establishing or
enforcing a right to indemnification under this Agreement,
applicable law or otherwise; provided, however, that "Expenses"
shall not include any judgments, fines or ERISA excise taxes or
penalties.
(d) "Independent Counsel" shall mean a law firm or a member of a law
firm that neither is presently nor in the past five years has been
retained to represent: (i) the Company or Officer in any matter
material to either party, 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 Officer in an action
to determine Officer's right to indemnification under this
Agreement.
(e) "Liabilities" shall mean liabilities of any type whatsoever,
including, but not limited to, judgments, fines, ERISA excise taxes
and penalties, and amounts paid in settlement.
(f) "Proceeding" shall mean any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing
or any other proceeding whether civil, criminal, administrative or
investigative.
(g) "Triggering Event" shall mean the acquisition by any person (other
than the Company or the Officer stock ownership plan of the
Company) of 30% or more of the outstanding shares of common stock
of the Company unless a majority of the entire Board shall have
earlier approved such acquisition.
SECTION 16. PRONOUNS.
Use of the masculine pronoun shall be deemed to include usage of the feminine
pronoun where appropriate.
SECTION 17. MODIFICATION AND WAIVER.
No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by both of the parties to this Agreement. No waiver
of any provision of this Agreement shall be deemed to constitute a waiver of any
other provision hereof (whether or not similar) nor shall such waiver constitute
a continuing waiver.
SECTION 18. NOTICE BY OFFICER AND DEFENSE OF CLAIMS.
Officer agrees promptly to notify the Company in writing upon being served with
any summons, citation, subpoena, complaint, indictment, information or other
document relating to any matter which may be subject to indemnification
hereunder, whether civil, criminal, administrative or investigative; but the
omission so to notify the Company will not relieve it from any liability which
it may have to Officer if such omission does not prejudice the Company's rights
and if such omission does prejudice the Company's rights, it will relieve the
Company from liability only to the extent of such prejudice; nor will such
omission
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relieve the Company from any liability which it may have to Officer otherwise
than under this Agreement. With respect to any proceeding as to which Officer
notifies the Company of the commencement thereof:
(a) The Company will be entitled to participate therein at its own
expense; and
(b) Except as otherwise provided below, to the extent that it may wish,
the Company jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with
counsel reasonably satisfactory to Officer. After notice from the
Company to Officer of its election so to assume the defense
thereof, the Company will not be liable to Officer under this
Agreement for any Expenses subsequently incurred by Officer in
connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. Officer shall have
the right to employ [his] counsel in such Proceeding but the fees
and expenses of such counsel incurred after notice from the Company
of its assumption of the defense thereof shall be at the expense of
Officer unless (i) the employment of counsel by Officer has been
authorized by the Company, (ii) Officer shall have reasonably
concluded that there may be a conflict of interest between the
Company and Officer in the conduct of the defense of such action or
that counsel may not be adequately representing Officer, (iii) a
Triggering Event shall have occurred or (iv) the Company shall not
in fact have employed counsel to assume the defense of such action,
in each of which cases the fees and expenses of counsel shall be at
the expense of the Company. The Company shall not be entitled to
assume the defense of any Proceeding as to which Officer shall have
made the conclusion provided for in (ii) above or if an event
specified in (iii) above shall have occurred.
(c) The Company shall not be liable to indemnify Officer under this
Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company shall not settle
any action or claim in any manner which would impose any penalty or
limitation on Officer without Officer's written consent. Neither
the Company nor Officer will unreasonably withhold their consent to
any proposed settlement.
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SECTION 19. NOTICES.
All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if (i) delivered by hand and
receipted for by the party to whom said notice or other communication shall have
been directed or (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed:
(a) If to Officer, to:
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(b) If to Company, to:
OREGON STEEL XXXXX, INC.
0000 XX Xxxxxxxx #0000
Xxxxxxxx, XX 00000
Attention: Secretary
With a copy to:
Xxxxxx Xxxxxxxxxx
XXXXXXX, XXXXXXXXXX & XXXXX
Suite 1800, Pacwest Center
0000 XX Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
or to such other address as may have been furnished to Officer by the Company or
to the Company by Officer, as the case may be.
SECTION 20. GOVERNING LAW.
The parties agree that this Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware.
SECTION 21. CONSENT TO JURISDICTION.
The Company and Officer each hereby irrevocably consent to the jurisdiction of
the courts of the State of Delaware for all purposes in connection with any
action or proceeding which arises out of or relates to this Agreement and agree
that any action instituted under this Agreement shall be brought only in the
state court of the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
COMPANY
OREGON STEEL XXXXX, INC.
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Name:
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Title:
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OFFICER
Name:
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Address:
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