1
Exhibit 10.5
INDEMNIFICATION AGREEMENT
-------------------------
This Agreement, made as of this _____ day of __________, 1998, between
Anthony & Sylvan Pools Corporation, an Ohio corporation, (the "Company") and
[____________________], a director, officer or representative (as hereinafter
defined) of the Company (the "Indemnitee");
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;
The Company and the Indemnitee are also aware of conditions in the
insurance industry that have affected and may continue to affect the Company's
ability to obtain appropriate directors' and officers' liability insurance on an
economically acceptable basis;
The Company desires to continue to benefit from the services of highly
qualified, experienced and otherwise competent persons such as the Indemnitee;
and
The Indemnitee desires to serve or to continue to serve the Company as
a director or an officer, or as a director, officer or trustee 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 that may be incurred by the Indemnitee.
In consideration of the foregoing premises and the mutual covenants
herein contained, the parties hereto agree as follows:
1. INDEMNIFICATION
Subject to the terms of this Agreement, the Company shall indemnify the
Indemnitee with respect to his activities as a director or officer of the
Company and/or as a person who is serving or has served on behalf of the Company
("representative") as a director, officer, or trustee 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, and amounts paid in settlement) actually and reasonably incurred by him
or her ("Expenses") in connection with any claim against Indemnitee which is the
subject of any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, investigative or otherwise and whether
formal or informal (a "Proceeding"), to which Indemnitee was, is, or is
threatened to be made a party by reason of facts which include Indemnitee's
being or having been such a director, officer or representative, to the extent
of the highest and most advantageous to the Indemnitee, as determined by the
Indemnitee, of one or any combination of the following:
(a) The benefits provided by the Company's Regulations in effect
on the date hereof, a copy of the relevant portions of which
are attached hereto as Exhibit I;
2
(b) The benefits provided by the Articles of Incorporation,
Regulations, or Bylaws or their equivalent of the Company in
effect at the time Expenses are incurred by Indemnitee;
(c) The benefits allowable under Ohio law in effect at the date
hereof;
(d) The benefits allowable under the law of the jurisdiction under
which the Company exists at the time Expenses are incurred by
the Indemnitee;
(e) The benefits available under liability insurance obtained by
the Company;
(f) The benefits which would have been available to the Indemnitee
under the [policy name] issued by [name of insurance company]
on __________________, 1998, which is designated as policy
number [___________], a copy of which is attached as Exhibit
II hereto; had such policy continued in effect and unamended
at the time Expenses are incurred by the Indemnitee; and
(g) Such other benefits as are or may be otherwise available to
Indemnitee.
Combination of two or more of the benefits provided by (a) through (g) shall be
available to the extent that the Applicable Document, as hereafter defined, does
not require that the benefits provided therein be exclusive of other benefits.
The document or law providing for the benefits listed in items (a) through (g)
above is called the "Applicable Document" in this Agreement. Company hereby
undertakes to use its best efforts to assist Indemnitee, in all proper and legal
ways, to obtain the benefits selected by Indemnitee under items (a) through (g)
above.
For purposes of this Agreement, references to "other enterprises" shall
include employee benefit plans for employees of the Company or of any affiliated
entity 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 on behalf of the Company" shall include any
service as a director, officer, employee 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. If the Indemnitee acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, he 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
for so long as Indemnitee's services are covered hereunder, provided and only to
the extent that such insurance is available in amounts and on terms and
conditions determined by the Company to be acceptable. However, the Company
agrees that the provisions of this agreement shall remain in
2
3
effect regardless of whether liability or other insurance coverage is at any
time obtained or retained by the Company, except that any payments in fact made
to 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.
3. PAYMENT OF EXPENSES
At Indemnitee's request, the Company shall pay the Expenses as and when
incurred by Indemnitee, but only after receipt of written notice pursuant to
Section 5 of this agreement and an undertaking in the form of Exhibit III
attached hereto by or on behalf of Indemnitee to repay such amounts so paid on
Indemnitee's behalf if it shall ultimately be determined under the Applicable
Document that Indemnitee is not entitled to be indemnified by the Company for
such Expenses. The portion of Expenses that represents attorneys' fees and other
costs incurred in defending any Proceeding shall be paid by the Company within
thirty (30) days of the Company's receipt of such request, together with
reasonable documentation (consistent, in the case of attorneys' fees, with
Company practice in payment of legal fees for outside counsel generally)
evidencing the amount and nature of such Expenses, subject to its 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 Indemnitee may be entitled and
shall continue after 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 Indemnitee's acts or omissions during
his service in such position.
5. NOTICE TO COMPANY
Indemnitee shall provide to the Company prompt written notice of any
Proceeding brought, threatened, asserted or commenced against Indemnitee with
respect to which Indemnitee may assert a right to indemnification hereunder,
provided that failure to provide such notice shall not in any way limit
Indemnitee's rights under this Agreement.
6. COOPERATION IN DEFENSE AND SETTLEMENT
Indemnitee shall not make any admission or effect any settlement of any
Proceeding without the Company's written consent unless Indemnitee shall have
determined to undertake his own defense in such matter and has waived the
benefits of this Agreement. The Company shall not settle any Proceeding to which
Indemnitee is a party in any manner which would impose any Expense on Indemnitee
without his written consent. Neither Indemnitee nor the Company will
unreasonably withhold consent to any proposed settlement. Indemnitee and the
Company shall cooperate to the extent reasonably possible with each other and
with the Company's insurers, in attempts to defend and/or settle such
Proceeding.
3
4
7. ASSUMPTION OF DEFENSE
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 Indemnitee's defense in any Proceeding, with counsel mutually
satisfactory to Indemnitee and the Company. After notice from the Company to
Indemnitee of the Company's election to assume such defense, the Company will
not be liable to Indemnitee under this Agreement for Expenses subsequently
incurred by Indemnitee in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Indemnitee
shall have the right to employ 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 Indemnitee's expense unless:
(a) The employment of counsel by Indemnitee has been authorized by
the Company;
(b) Counsel employed by the Company initially is unacceptable or
later becomes unacceptable to Indemnitee and such
unacceptability is reasonable under then existing
circumstances;
(c) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between Indemnitee and the Company in the
conduct of the defense of such Proceeding; or
(d) The Company shall not have employed counsel promptly to assume
the defense of such Proceeding.
In each of these cases the fees and expenses of counsel shall be at the expense
of the Company and subject to payment pursuant to this Agreement. The Company
shall not be entitled to assume the defense of Indemnitee in any Proceeding
brought by or on behalf of the Company or as to which Indemnitee shall have made
either of the conclusions provided for in clauses (b) or (c) above.
8. ENFORCEMENT
In the event that any dispute or controversy shall arise under this
Agreement between Indemnitee and the Company with respect to whether the
Indemnitee is entitled to indemnification in connection with any Proceeding or
with respect to the amount of Expenses incurred, then with respect to each such
dispute or controversy Indemnitee may seek to enforce the Agreement through
legal action or, at Indemnitee's sole option and written request, through
arbitration. If arbitration is requested, such dispute or controversy shall be
submitted by the parties to binding arbitration in the City of Cleveland, State
of Ohio, before a single arbitrator agreeable to both parties. If the parties
cannot agree on a designated arbitrator within 15 days after arbitration is
requested in writing by Indemnitee, the arbitration shall proceed in the City of
Cleveland, State of Ohio, before an arbitrator appointed by the American
Arbitration Association. In either case, the arbitration proceeding shall
commence promptly under the rules then in effect of that Association. The
arbitrator agreed to by the parties or appointed by that
4
5
Association shall be an attorney other than an attorney who has been or is
associated with a firm having associated with it an attorney who has been
retained by or performed services for the Company or Indemnitee at any time
during the five years preceding the commencement of arbitration. The award shall
be rendered in such form that judgment may be entered thereon in any court
having jurisdiction thereof. The prevailing party shall be entitled to prompt
reimbursement of any costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred in connection with such legal action or
arbitration; provided that Indemnitee shall not be obligated to reimburse the
Company unless the arbitrator or court which resolves the dispute determines
that Indemnitee acted in bad faith in bringing such action or arbitration.
9. EXCLUSIONS
Notwithstanding the scope of indemnification which may be available to
Indemnitee from time to time under any Applicable Document, no indemnification,
reimbursement or payment shall be required of the Company hereunder with respect
to:
(a) Any claim or any part thereof as to which Indemnitee shall
have been adjudged by a court of competent jurisdiction from
which no appeal is or can be taken to have acted in willful
misfeasance, or willful disregard of his duties, except to the
extent that such court 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 as the court shall
deem proper;
(b) Any claim or any part thereof arising under Section 16(b) of
the Securities Exchange Act of 1934 pursuant to which
Indemnitee shall be obligated to pay any penalty, fine,
settlement or judgment;
(c) Any obligation of Indemnitee based upon or attributable to the
Indemnitee gaining in fact any personal gain, profit or
advantage to which he was not entitled; or
(d) Any Proceeding initiated by Indemnitee without the consent or
authorization of the Board of Directors of the Company,
provided that this exclusion shall not apply with respect to
any claims brought by Indemnitee to enforce his rights under
this Agreement or in any Proceeding initiated by another
person or entity whether or not such claims were brought by
Indemnitee against a person or entity who was otherwise a
party to such Proceeding.
Nothing in this Section 9 shall eliminate or diminish the Company's obligations
to advance that portion of Indemnitee's Expenses which represent attorneys' fees
and other costs incurred in defending any Proceeding pursuant to Section 3 of
this Agreement.
10. EXTRAORDINARY TRANSACTIONS
The Company covenants and agrees that, in the event of any merger,
consolidation or reorganization in which the Company is not the surviving
entity, any sale of all or substantially
5
6
all of the assets of the Company or any liquidation of the Company (each such
event is hereinafter referred to as an "extraordinary transaction"), the Company
shall:
(a) Have the obligations of the Company under this Agreement
expressly assumed by the survivor, purchaser or successor, as
the case may be, in such extraordinary transaction; or
(b) Otherwise adequately provide for the satisfaction of the
Company's obligations under this Agreement, in a manner
acceptable to Indemnitee.
11. NO PERSONAL LIABILITY
Indemnitee agrees that neither the directors nor any officer, employee,
representative or agent of the Company shall be personally liable for the
satisfaction of the Company's obligations under this Agreement, and Indemnitee
shall look solely to the assets of the Company for satisfaction of any claims
hereunder.
12. SEVERABILITY
If any provision, phrase, or other portion of this Agreement should be
determined by any court of competent jurisdiction to be invalid, illegal or
unenforceable, in whole or in part, and such determination should become final,
such provision, phrase or other portion shall be deemed to be severed or
limited, but only to the extent required to render the remaining provisions and
portions of the Agreement enforceable, and the Agreement as thus amended shall
be enforced to give effect to the intention of the parties insofar as that is
possible.
13. SUBROGATION
In the event of any payment under this Agreement, the Company shall be
subrogated to the extent thereof to all rights to indemnification or
reimbursement against any insurer or other entity or person vested in the
Indemnitee, who shall execute all instruments and take all other actions as
shall be reasonably necessary for the Company to enforce such rights.
14. GOVERNING LAW
The parties hereto agree that this Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of Ohio.
15. NOTICES
All notices, requests, demands and other communications hereunder shall
be in writing and shall be considered to have been duly given if delivered by
hand and receipted for by the party to whom the notice, request, demand or other
communication shall have been directed, or mailed by certified mail, return
receipt requested, with postage prepaid:
6
7
(a) If to Company, to: Anthony & Sylvan Pools Corporation
c/o Essef Corporation
220 Park Drive
Chardon, Ohio 44024
Attention: Chief Executive Officer
(b) If to Indemnitee, to: [ ]
----------------------------------
[ ]
----------------------------------
[ ]
----------------------------------
or to such other or further address as shall be designated from time to time by
the Indemnitee or the Company to the other.
16. TERMINATION
This Agreement may be terminated by either party upon not less than
sixty (60) days prior written notice delivered to the other party, but
termination shall not in any way diminish the obligations of Company hereunder
with respect to Indemnitee's activities prior to the effective date of
termination, provided that this Agreement shall terminate automatically and be
void ab initio if the shareholders of the Company have not by
_____________________ voted to grant the Company the authority to enter into and
perform its obligations hereunder.
17. AMENDMENTS AND BINDING EFFECT
This Agreement and the rights and duties of Indemnitee and the Company
hereunder may not be amended, modified or terminated except by written
instrument signed and delivered by the parties hereto. This Agreement is and
shall be binding upon and shall inure to the benefits of the parties thereto and
their respective heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement in
triplicate as of the date first above written.
INDEMNITEE Anthony & Sylvan Pools Corporation
By:
- -------------------------------------- -----------------------------
[ ] Name:
-------------------------- ----------------------------
Title: Director, [ ] Title:
-------------------- ---------------------------
7
8
EXHIBIT I
FROM THE CODE OF REGULATIONS FOR ANTHONY & SYLVAN POOLS CORPORATION:
Section 33. Indemnification
The Corporation shall indemnify any director or officer or any former
director or officer of the Corporation or any person who is or has served at the
request of the Corporation as a director, officer or trustee of another
corporation, joint venture, trust or other enterprise (and his or her heirs,
executors and administrators) against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement, actually and reasonably
incurred by him or her by reason of the fact that he or she is or was such
director, officer or trustee in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative to the full extent and according to the procedures and
requirements set forth in the Ohio General Corporation Law as the same may be in
effect from time to time. The indemnification provided for herein shall not be
deemed to restrict the right of the Corporation to indemnify employees, agents
and others as permitted by such Law.
8
9
EXHIBIT II
[ATTACH COPY OF DIRECTOR AND OFFICER INSURANCE POLICY]
9
10
EXHIBIT III
[UNDERTAKING]
___[date]___
Anthony & Sylvan Pools Corporation
C/o Essef Corporation
220 Park Drive
Chardon, Ohio 44024
Re: Indemnification Agreement Undertaking
-------------------------------------
- ---------------------:
As required by Section 3 of the Indemnification Agreement dated
__________, 1998 that I entered into with Anthony & Sylvan Pools Corporation
(the "Company"), I hereby agree to repay to the Company any and all amounts paid
by it on my behalf if it shall ultimately be determined under the Applicable
Documents (as defined in the Indemnification Agreement) that I am not entitled
to be indemnified by the Company for such amounts.
----------------------
[Name of Director]
10