Annual Report — Form 10-K — Sect. 13 / 15(d) – SEA’34 Filing Table of Contents
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2: EX-10.26 Material Contract HTML 89K
3: EX-10.41 Material Contract HTML 89K
5: EX-21.1 Subsidiaries List HTML 57K
6: EX-23.1 Consent of Experts or Counsel HTML 38K
4: EX-12.1 Statement re: Computation of Ratios HTML 54K
7: EX-31.1 Certification -- §302 - SOA'02 HTML 44K
8: EX-31.2 Certification -- §302 - SOA'02 HTML 44K
9: EX-32.1 Certification -- §906 - SOA'02 HTML 40K
16: R1 Document and Entity Information HTML 66K
17: R2 Consolidated Balance Sheets HTML 136K
18: R3 Consolidated Balance Sheets (Parenthetical) HTML 60K
19: R4 Consolidated Statements of Income HTML 100K
20: R5 Consolidated Statements of Comprehensive Income HTML 63K
21: R6 Consolidated Statements of Changes in HTML 119K
Stockholders' Equity
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Stockholders' Equity (Parenthetical)
23: R8 Consolidated Statements of Cash Flows HTML 165K
24: R9 Summary of Significant Accounting Policies HTML 116K
25: R10 Acquisitions HTML 47K
26: R11 Inventories HTML 49K
27: R12 Property, Plant, and Equipment HTML 55K
28: R13 Goodwill and Other Intangible Assets HTML 172K
29: R14 Prepaid and Other Current Assets HTML 49K
30: R15 Accrued Expenses HTML 60K
31: R16 Debt HTML 87K
32: R17 Leases HTML 49K
33: R18 Other Liabilities HTML 51K
34: R19 Fair Value of Financial Instruments HTML 117K
35: R20 Derivative Financial Instruments HTML 133K
36: R21 Income Taxes HTML 166K
37: R22 Retirement Plans HTML 362K
38: R23 Stockholders' Equity and Noncontrolling Interests HTML 167K
39: R24 Stock-Based Compensation HTML 162K
40: R25 Earnings Per Share HTML 68K
41: R26 Commitments, Contingencies and Litigation HTML 61K
42: R27 Restructuring Plans and Other Exit Charges HTML 101K
43: R28 Warranty HTML 55K
44: R29 Other (Income) Expense, Net HTML 52K
45: R30 Business Segments HTML 149K
46: R31 Quarterly Financial Data (Unaudited) HTML 109K
47: R32 Subsequent Events HTML 41K
48: R33 Valuation and Qualifying Accounts HTML 99K
49: R34 Summary of Significant Accounting Policies HTML 177K
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50: R35 Inventories (Tables) HTML 49K
51: R36 Property, Plant, and Equipment (Tables) HTML 51K
52: R37 Goodwill and Other Intangible Assets (Tables) HTML 160K
53: R38 Prepaid and Other Current Assets (Tables) HTML 49K
54: R39 Accrued Expenses (Tables) HTML 59K
55: R40 Debt (Tables) HTML 67K
56: R41 Leases (Tables) HTML 46K
57: R42 Other Liabilities (Tables) HTML 50K
58: R43 Fair Value of Financial Instruments (Tables) HTML 107K
59: R44 Derivative Financial Instruments (Tables) HTML 124K
60: R45 Income Taxes (Tables) HTML 158K
61: R46 Retirement Plans (Tables) HTML 378K
62: R47 Stockholders' Equity and Noncontrolling Interests HTML 131K
(Tables)
63: R48 Stock-Based Compensation (Tables) HTML 127K
64: R49 Earnings Per Share (Tables) HTML 66K
65: R50 Restructuring Plans and Other Exit Charges HTML 76K
(Tables)
66: R51 Warranty (Tables) HTML 55K
67: R52 Other (Income) Expense, Net (Tables) HTML 52K
68: R53 Business Segments (Tables) HTML 143K
69: R54 Quarterly Financial Data (Tables) HTML 108K
70: R55 Summary of Significant Accounting Policies - HTML 76K
Additional Information (Detail)
71: R56 Acquisitions - Additional Information (Detail) HTML 76K
72: R57 Inventories - Summary of Inventories (Detail) HTML 46K
73: R58 Inventories - Additional Information (Detail) HTML 39K
74: R59 Property, Plant, and Equipment - Summary of PPE HTML 53K
(Detail)
75: R60 Property, Plant, and Equipment - Additional HTML 42K
Information (Detail)
76: R61 Goodwill and Other Intangible Assets - Schedule of HTML 67K
Companys Other Intangible Assets (Detail)
77: R62 Goodwill and Other Intangible Assets - Additional HTML 79K
Information (Detail)
78: R63 Goodwill and Other Intangible Assets - Schedule of HTML 63K
Changes in Carrying Amount of Goodwill by Business
Segment (Detail)
79: R64 Goodwill and Other Intangible Assets - Schedule of HTML 53K
Goodwill and Goodwill Impairment Losses (Details)
80: R65 Prepaid and Other Current Assets (Detail) HTML 49K
81: R66 Accrued Expenses (Detail) HTML 67K
82: R67 Debt - Long Term Debt (Detail) HTML 58K
83: R68 Debt - Long Term Debt (Phantom) (Detail) HTML 44K
84: R69 Debt - Additional Information (Detail) HTML 154K
85: R70 Leases - Schedule of Capital and Operating Leases HTML 55K
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86: R71 Leases - Additional Information (Detail) HTML 38K
87: R72 Other Liabilities (Detail) HTML 50K
88: R73 Fair Value of Financial Instruments - Financial HTML 49K
Assets and Liabilities Measured at Fair Value on
Recurring Basis (Detail)
89: R74 Fair Value of Financial Instruments - Additional HTML 76K
Information (Detail)
90: R75 Fair Value of Financial Instruments - Carrying HTML 55K
Amounts and Estimated Fair Values of Company
Financial Instruments (Detail)
91: R76 Derivative Financial Instruments - Additional HTML 55K
Information (Detail)
92: R77 Derivative Financial Instruments - Fair Value of HTML 63K
Derivative Instruments (Detail)
93: R78 Derivative Financial Instruments - Effect of HTML 52K
Derivative Instruments on Consolidated Condensed
Statements of Income (Detail)
94: R79 Derivative Financial Instruments - Effect of HTML 44K
Derivative Instruments (Detail)
95: R80 Income Taxes - Schedule of Income Tax Expense HTML 68K
(Detail)
96: R81 Income Taxes - Schedule of Earning Before Income HTML 44K
Taxes (Detail)
97: R82 Income Taxes - Additional Information (Detail) HTML 79K
98: R83 Income Taxes - Schedule of Deferred Tax Assets and HTML 73K
Liabilities (Detail)
99: R84 Income Taxes - Reconciliation of Income Taxes at HTML 55K
Statutory Rate (Detail)
100: R85 Income Taxes - Reconciliation of Unrecognized Tax HTML 51K
Benefits (Detail)
101: R86 Retirement Plans - Net Periodic Pension Costs HTML 61K
(Detail)
102: R87 Retirement Plans - Change in Projected Benefit HTML 88K
Obligations and Change in Plan Assets (Detail)
103: R88 Retirement Plans - Amounts Recognized in HTML 46K
Consolidated Balance Sheets (Detail)
104: R89 Retirement Plans - Pension Components Before Tax HTML 46K
and Related Changes Net of Tax Recognized in AOCI
(Detail)
105: R90 Retirement Plans - Summary Changes in Plan Assets HTML 51K
and Benefit Obligations (Detail)
106: R91 Retirement Plans - Summary of Recognized HTML 42K
Components of Net Periodic Pension Cost Included
in Accumulated Other Comprehensive Income (Detail)
107: R92 Retirement Plans - Summary of Accumulated Benefit HTML 64K
Obligation Related to All Defined Pension Plans
(Detail)
108: R93 Retirement Plans - Significant Assumptions Used to HTML 53K
Determine Net Periodic Benefit Cost (Detail)
109: R94 Retirement Plans - Significant Assumptions Used to HTML 49K
Determine Projected Benefit Obligations (Detail)
110: R95 Retirement Plans - Additional Information (Detail) HTML 52K
111: R96 Retirement Plans - Summary of Pension Plan HTML 76K
Investments Measured at Fair Value (Detail)
112: R97 Retirement Plans - Summary of Estimated Future HTML 50K
Benefit Payments (Detail)
113: R98 Stockholders' Equity and Noncontrolling Interests HTML 73K
- Additional Information (Detail)
114: R99 Change in Number of Shares of Common Stock HTML 50K
Outstanding (Detail)
115: R100 Components of Accumulated Other Comprehensive HTML 57K
Income (Detail)
116: R101 Stockholders Equity and Noncontrolling Interests HTML 64K
Reclassification from Accumulated Other
Comprehensive Income (Details)
117: R102 Redeemable Noncontrolling Interests (Detail) HTML 50K
118: R103 Stock-Based Compensation - Additional Information HTML 88K
(Detail)
119: R104 Stock-Based Compensation - Summary of Stock Option HTML 93K
Activity (Detail)
120: R105 Stock-Based Compensation - Summary of Information HTML 44K
Regarding Stock Options Outstanding and
Exercisable (Detail)
121: R106 Stock Based Compensation Stock-Based Compensation HTML 72K
- Summary of Assumptions Used for Market Share
Units (Details)
122: R107 Stock-Based Compensation - Summary of Changes in HTML 78K
Restricted Stock Units and Market Share Units
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123: R108 Earnings Per Share - Weighted Average Common HTML 70K
Shares Basic and Common Shares Diluted (Detail)
124: R109 Earnings Per Share - Additional Information HTML 49K
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125: R110 Commitments, Contingencies and Litigation - HTML 106K
Additional Information (Detail)
126: R111 Restructuring Plans and Other Exit Charges - HTML 194K
Additional Information (Detail)
127: R112 Restructuring Plans and Other Exit Charges - HTML 60K
Acquisition and Non-Acquisition Related
Restructuring Reserve (Details)
128: R113 Warranty (Detail) HTML 47K
129: R114 Other (Income) Expense, Net (Detail) HTML 45K
130: R115 Business Segments - Schedule of Summarized HTML 103K
Financial Information by Reportable Segments
Segments (Detail)
131: R116 Business Segments - Additional Information HTML 48K
(Detail)
132: R117 Quarterly Financial Data (Detail) HTML 63K
133: R118 Quarterly Financial Data (Phantom) (Detail) HTML 55K
134: R119 Subsequent Events - Additional Information HTML 64K
(Detail)
135: R120 Valuation and Qualifying Accounts Valuation and HTML 59K
Qualifying Accounts (Details)
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INDEMNIFICATION AGREEMENT (DIRECTORS AND OFFICERS)
INDEMNIFICATION AGREEMENT dated as of ____ (this “Agreement”), between ENERSYS, a Delaware corporation (the “Company”), and the other party signatory hereto (the “Indemnitee”).
WHEREAS, the Company has adopted provisions in its Certificate of Incorporation and Bylaws
providing for indemnification of its officers and directors to the fullest extent permitted by the DGCL, and the Company wishes to clarify and enhance the rights and obligations of the Company and the Indemnitee with respect to indemnification;
NOW, THEREFORE, in consideration of the Indemnitee’s service or continued service as a director or officer of the Company, the parties hereto agree as follows:
1.Service by Indemnitee. In consideration of the Company’s covenants and commitments hereunder,
the Indemnitee agrees to serve or continue to serve as a director or officer of the Company. However, this Agreement shall not impose any obligation on the Indemnitee or the Company to continue Indemnitee’s service to the Company beyond any period otherwise required by law or by other agreements or commitments of the parties hereto, if any.
2.Indemnification. Subject to Sections 8, 10 and 19(f) and the proviso contained in the last sentence of this Section 2, the Company shall indemnify the Indemnitee as provided in this Agreement and
to the fullest extent permitted by the DGCL in effect on the date hereof and as amended from time to time (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment). Without limiting the scope of the indemnification provided by this Section 2, the right to indemnification of the Indemnitee provided hereunder shall include, but shall not be limited to, those rights hereinafter set forth; provided, however, that no indemnification shall be paid to the Indemnitee:
(a)
to
the extent prohibited by the DGCL;
(b)
to the extent payment with respect to any indemnifiable matter is actually made to the Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or other agreement of the Company or any other Person on whose board the Indemnitee serves at the request of the Company; or
(c)
in
connection with an action, suit or proceeding, or part thereof (including claims and counterclaims) initiated by the Indemnitee, except a judicial proceeding or arbitration pursuant to Section 10 to enforce the rights under this Agreement, unless the action, suit or proceeding (or part thereof) was authorized by the Board.
3.Indemnification in Proceedings other than Proceedings by or in the Right of the Company. Subject to Section 2, the Indemnitee shall be entitled to the indemnification rights provided in this Section 3 if the Indemnitee was, is, or is threatened to be made, a party to or a participant in any Proceeding (other than a Proceeding by or in the right of the Company) by reason
of the Indemnitee’s Corporate Status, or by reason of anything done or not done by the Indemnitee in any such capacity. Pursuant to this Section 3, the Indemnitee shall be indemnified against all costs, judgments, penalties, fines, liabilities, amounts paid in settlement by or on behalf of the Indemnitee, and Expenses (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses) actually and reasonably incurred by or on behalf of the Indemnitee in connection with such Proceeding or any claim, issue or matter therein, if, as determined in accordance with Section 8, the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful;
provided, however, the Company shall not be liable to the Indemnitee under the foregoing for any amounts paid in settlement without the Company’s prior written consent, which shall not be unreasonably withheld; provided, further, that if a Change in Control of the Company has occurred, the Company shall be liable for indemnification of the Indemnitee for amounts paid in settlement if an Independent Counsel has approved the settlement.
4.Indemnification
in Proceedings by or in the Right of the Company. Subject to Section 2, the Indemnitee shall be entitled to the indemnification rights provided in this Section 4 if the Indemnitee was, is, or is threatened to be made, a party to or participant in any Proceeding brought by or in the right of the Company to procure a judgment in its favor by reason of the Indemnitee’s Corporate Status, or by reason of anything done or not done by the Indemnitee in any such capacity. Pursuant to this Section 4, the Indemnitee shall be indemnified against all costs, judgments, penalties, fines, liabilities, amounts paid in settlement by or on behalf of the Indemnitee, and Expenses (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses)
actually and reasonably incurred by or on behalf of the Indemnitee in connection with such Proceeding or any claim, issue or matter therein, if, as determined in accordance with Section 8, the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company; provided, however, that (a) no such indemnification shall be made in respect of any claim, issue or matter as to which applicable law expressly prohibits such indemnification by reason of any adjudication of liability of the Indemnitee to the Company, unless and only to the extent that the Court of Chancery of the State of Delaware (the “Delaware Court”) or the court in
which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is entitled to indemnification for such costs, judgments, penalties, fines, liabilities and Expenses as such court shall deem proper, (b) the Company shall not be liable to the Indemnitee under the foregoing for any amounts paid in settlement without the Company’s prior written consent, which shall not be unreasonably withheld, and (c) if a Change in Control of the Company has occurred, the Company shall be liable for indemnification of the Indemnitee for
amounts paid in settlement if an Independent Counsel has approved the settlement.
5.Indemnification for Costs, Charges and Expenses of Successful Party. Notwithstanding the limitations of Sections 3 and 4, subject to Sections 2(a) and 2(b), to the extent that the Indemnitee is successful, on the merits or otherwise, in whole or in part, in defense of any Proceeding or in defense of any claim, issue or matter therein, including, without limitation, the dismissal of any action without prejudice, or if it is ultimately determined that the Indemnitee is otherwise entitled to be indemnified against Expenses, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith.
6.Partial Indemnification. If the Indemnitee is entitled
under any provision of this Agreement to indemnification by the Company for some or a portion of the costs, judgments, penalties, fines, liabilities or Expenses actually and reasonably incurred in connection with any Proceeding, but not, however, for the total amount thereof, the Company shall nevertheless indemnify the Indemnitee for the portion of such costs, judgments, penalties, fines, liabilities and Expenses actually and reasonably incurred to which the Indemnitee is entitled.
7.Indemnification for Expenses of a Witness and Additional Expenses. Notwithstanding any other provision of this Agreement, to the maximum extent permitted by applicable law, the Indemnitee shall be entitled to indemnification against
all Expenses actually and reasonably incurred or suffered by the Indemnitee or on the Indemnitee’s behalf if the Indemnitee appears as a witness or otherwise incurs legal expenses as a result of or related to the Indemnitee’s Corporate Status, in any threatened, pending or completed legal, administrative, investigative or other proceeding or matter to which the Indemnitee neither is, nor is threatened to be made, a party.
8.Determination of Entitlement to Indemnification. Upon written request by the Indemnitee for indemnification pursuant to Sections 3, 4, 5, 6 or 7, the entitlement of the Indemnitee to indemnification, to the extent not expressly provided for pursuant to the terms of this Agreement, shall be determined by the following person or persons, who shall be empowered to make such determination: (a) if a Change of Control shall have occurred, by Independent Counsel in
a written opinion to the Board, a copy of which shall be delivered to the Indemnitee; and (b) if a Change of Control shall not have occurred, (i) by the Board by a majority vote of Disinterested Directors, whether or not such majority constitutes a quorum; (ii) by a committee of Disinterested Directors designated by a majority vote of such directors, whether or not such majority constitutes a quorum; (iii) if there are no Disinterested Directors, or if the Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee; or (iv) by the stockholders of the Company. Such Independent Counsel shall be selected by the Board and approved by the Indemnitee. Upon any failure of the Board so to select such Independent Counsel or upon the failure of the Indemnitee so to approve, such Independent Counsel shall
be selected upon application to a court of competent jurisdiction. Such determination of entitlement to indemnification shall be made not later than 30 days after receipt by the Company of a written request for indemnification. Such request shall include documentation or information that is necessary for such determination and which is reasonably available to the Indemnitee. Any Expenses incurred by the Indemnitee in connection with a request for indemnification or payment of Expenses hereunder, under any other agreement, any provision of the Certificate of Incorporation, Bylaws or any directors’ and officers’ liability insurance of the
Company, shall be borne by the Company. The Company shall indemnify the Indemnitee for any such Expense and agrees to hold the Indemnitee harmless therefrom irrespective of the outcome of the determination of the Indemnitee’s entitlement to indemnification. If the person or persons making such determination shall determine that the Indemnitee is entitled to indemnification as to part (but not all) of the application for indemnification, such person or persons shall reasonably prorate such partial indemnification among the claims, issues or matters at issue at the time of the determination. If it is determined that the Indemnitee is entitled to indemnification, payment to the Indemnitee shall be made within seven days after such determination.
9.Presumptions
and Effect of Certain Proceedings. The Secretary of the Company shall, promptly upon receipt of the Indemnitee’s request for indemnification, advise in writing the Board or such other person or persons empowered to make the determination as provided in Section 8 that the Indemnitee has made such request for indemnification. Upon making such request for indemnification, the Indemnitee shall be presumed to be entitled to indemnification hereunder and the Company shall have the burden of proof in making any determination contrary to such presumption. If the person or persons so empowered to make such determination shall have failed to make the requested determination with respect to indemnification within 30 days after receipt by the
Company of such request, a requisite determination of entitlement to indemnification shall be deemed to have been made and the Indemnitee shall be absolutely entitled to such indemnification, absent actual and material fraud in the request for indemnification. The termination of any Proceeding described in Sections 3 or 4 by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, (a) create a presumption that the Indemnitee did not act in good faith and in a manner that the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that the Indemnitee’s conduct was unlawful; or (b) otherwise adversely affect the rights of the Indemnitee to indemnification
except as may be provided herein.
10.Remedies of the Indemnitee in Cases of Determination not to Indemnify or to pay Expenses. In the event that a determination is made that the Indemnitee is not entitled to indemnification hereunder or if payment has not been timely made following a determination of entitlement to indemnification pursuant to Sections 8 and 9, or if Expenses are not paid pursuant to Section 15, the Indemnitee shall be entitled to final adjudication in a court of competent jurisdiction of entitlement to such indemnification or payment. Alternatively, the Indemnitee, at the Indemnitee’s option, may seek an award in an arbitration to be conducted by a single arbitrator pursuant to the rules of the American Arbitration Association, such award to be made within 60 days following the filing of the demand for arbitration. The
Company shall not oppose the Indemnitee’s right to seek any such adjudication or award in arbitration or any other claim. The determination in any such judicial proceeding or arbitration shall be made de novo and the Indemnitee shall not be prejudiced by reason of a determination (if so made) pursuant to Section 8 or 9 that the Indemnitee is not entitled to indemnification. If a determination is made or deemed to have been made pursuant to the terms of Section 8 or 9 that the Indemnitee is entitled to indemnification, the Company shall be bound by such determination and is precluded from asserting that such determination has not been made or that the procedure by which such determination was made is not valid, binding and enforceable. The Company
further agrees to 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 assertions to the contrary. If the court or arbitrator shall determine that the Indemnitee is entitled to any indemnification or payment of Expenses hereunder, the Company shall pay all Expenses actually and reasonably incurred by or on behalf of the Indemnitee in connection with or in relation to such adjudication or award in arbitration (including, but not limited to, any appellate Proceedings).
11.Non-Exclusivity. Indemnification and payment of Expenses provided by this Agreement shall not be deemed exclusive of any other rights to
which the Indemnitee may now or in the future be entitled under any provision of the Bylaws of the Company or other organizational documents of the Company, vote of stockholders or resolution of directors, provision of law, agreement or otherwise.
12.Expenses to Enforce Agreement. In the event that the Indemnitee is subject to or intervenes in any Proceeding in which the validity or enforceability of this Agreement is at issue or seeks an adjudication or award in arbitration to enforce the Indemnitee’s rights under, or to recover damages for breach of, this Agreement, the Indemnitee, if the Indemnitee prevails in whole
or in part in such action, shall be entitled to recover from the Company and shall be indemnified by the Company against any actual Expenses incurred by the Indemnitee.
13.Continuation of Indemnity. All agreements and obligations of the Company contained herein shall continue during the period the Indemnitee is a director, officer, employee, fiduciary or agent of the Company or is serving at the request of the Company as a director, officer, employee,
fiduciary or agent of any other entity (including, but not limited to, another corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise) and shall continue thereafter with respect to any possible claims based on the fact that the Indemnitee was a director, officer, employee, fiduciary or agent of the Company or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of any other entity (including, but not limited to, another corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise). This Agreement shall be binding upon all successors and assigns of the Company
(including any transferee of all or substantially all its assets and any successor by merger or operation of law) and shall inure to the benefit of the heirs, personal representatives and estate of the Indemnitee.
14.Notification and Defense of Claim. Promptly after receipt by the Indemnitee of notice of any Proceeding, the Indemnitee will, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Company in writing of the commencement thereof; but the omission so to notify the Company will not relieve it from any liability that it may have to the Indemnitee. Notwithstanding any other
provision of this Agreement, with respect to any such Proceeding of which the Indemnitee notifies the Company:
(a) the Company shall be entitled to participate therein at its own expense; and
(b) except as otherwise provided in this Section 14(b), to the extent that it may wish, the Company, jointly with any other indemnifying party similarly notified, shall be entitled to assume the defense thereof, with counsel satisfactory to the Indemnitee. After notice from the
Company to the Indemnitee of its election so to assume the defense thereof, the Company shall not be liable to the Indemnitee under this Agreement for any expenses of counsel subsequently incurred by the Indemnitee in connection with the defense thereof except as otherwise provided below. The Indemnitee shall have the right to employ the Indemnitee’s own 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 the Indemnitee unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict
of interest between the Company and the Indemnitee in the conduct of the defense of such action, or (iii) the Company shall not within 15 days of receipt of notice from the Indemnitee in fact have employed counsel to assume the defense of the action, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee shall have made the conclusion provided
for in clause (ii) above; and
(c) if the Company has assumed the defense of a Proceeding, the Company shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without the Company’s prior written consent. The Company shall not settle any Proceeding in any manner that would impose any penalty or limitation on or disclosure obligation with respect to the Indemnitee without the Indemnitee’s prior written consent. Neither the
Company nor the Indemnitee will unreasonably withhold its consent to any proposed settlement.
15.Payment of Expenses. All Expenses incurred by the Indemnitee in advance of the final disposition of any Proceeding shall be paid by the Company at the request of the Indemnitee, each such payment to be made within seven days after the receipt by the Company of a statement or statements from the Indemnitee requesting such payment or payments from time to time, whether prior to or after final disposition of such Proceeding. The Indemnitee’s entitlement to such Expenses shall include those incurred in connection with any Proceeding by the Indemnitee seeking a judgment in court or an adjudication or award in arbitration
pursuant to this Agreement (including the enforcement of this provision). Such statement or statements shall reasonably evidence the expenses and costs incurred by the Indemnitee in connection therewith and shall include or be accompanied by an undertaking, in substantially the form attached as Exhibit A, by or on behalf of the Indemnitee to reimburse such amount if it is finally determined, after all appeals by a court of competent jurisdiction, that the Indemnitee is not entitled to be indemnified against such Expenses by the Company as provided by this Agreement or otherwise. The payment of Expenses shall be made without regard to the Indemnitee’s ability to repay the Expenses and without regard to the Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. The payment of Expenses shall be
unsecured and interest-free.
16.Severability; Prior Indemnification Agreements. If any provision or provisions of this Agreement 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 (including without limitation, all portions of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not by themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (b) to the fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any paragraph of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent of the parties that the Company provide protection to the Indemnitee to the fullest enforceable extent. This Agreement shall supersede and replace any prior indemnification agreements entered into by and between the Company and the Indemnitee and any such prior agreements shall be terminated upon execution of this Agreement.
17.Headings; References; Pronouns. The headings of the sections 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. References herein to section numbers are to sections of this Agreement. All pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural as appropriate.
18.Definitions. For purposes of this Agreement:
“Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act.
“Board” means the Board of Directors of the Company.
“Bylaws” means the Bylaws of the
Company, as may be amended from time to time (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such Bylaws permitted the Company to provide prior to such amendment).
“Change in Control” means the occurrence of any one of the following:
(a)any Person, including any “group”, as defined in Section 13(d)(3) of the Exchange Act, is or becomes the Beneficial Owner, directly or indirectly, of securities of the
Company representing a majority of the combined voting power of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a Qualifying Business Combination described in paragraph (c) below or who becomes such a Beneficial Owner as a result of a change in ownership percentage resulting solely from an acquisition of securities by the Company; or
(b)during any period of two consecutive years, individuals who at the beginning of such period constitute the Board and any new director whose appointment or election by the Board or nomination for election by the Company’s shareholders was approved
or recommended by a vote of at least 66-2/3% of the directors then still in office who either were directors at the beginning of the period or whose appointment, election or nomination for election was previously so approved or recommended cease for any reason to constitute a majority of the Board; or
(c)there is consummated a reorganization, merger or consolidation of the Company with, or sale or other disposition of at least 80% of the assets of the Company in one or a series of related transactions to, any other Person (a “Business Combination”), other than a Business Combination that would result in the voting securities of the
Company outstanding immediately prior to such Business Combination continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) more than 50% of the combined voting power of the securities of the Company or such surviving entity or any parent thereof outstanding immediately after such Business Combination (a “Qualifying Business Combination”); or
(d)the shareholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition
by the Company of all or substantially all the Company’s assets, other than a sale or disposition by the Company of all or substantially all the Company’s assets to an entity, more than 50% of the combined voting power of the outstanding securities of which is owned by shareholders of the Company in substantially the same proportions as their ownership of the Company immediately prior to such sale.
“Corporate
Status” means the status of a person who is or was a director, officer, employee, fiduciary or agent of the Company or of any other entity including, but not limited to, another corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise that such person is or was serving at the request of the Company.
“DGCL” means the Delaware General Corporation Law, as amended.
“Disinterested Director” means 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 the Indemnitee.
“Expenses” includes, without limitation, expenses incurred in connection with the defense or settlement of any and all investigations, judicial or administrative proceedings or appeals, court costs, transcript costs, attorneys’ fees, witness fees and expenses, fees and expenses of accountants and other advisors, expert fees and expenses, duplication costs, printing and binding costs, telephone charges, postage, delivery service fees, retainers and disbursements and advances thereon, the premium, security for, and other costs relating to any bond (including cost bonds, appraisal bonds or their equivalents), and any expenses of establishing a right to indemnification under Sections 8, 10 and 12 but shall not include the amount of judgments, fines or penalties actually levied against the Indemnitee or amounts paid
in settlement by Indemnitee.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any similar successor statute.
“Independent Counsel” means a law firm or a member of a law firm that is experienced in matters of corporation law and neither currently is nor in the past three years has been retained to represent: (a) the Company (or any majority stockholder thereof) or the Indemnitee or any affiliate of either thereof in any matter material to either such party, or (b) 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 the Indemnitee in an action to determine the Indemnitee’s right to indemnification under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above.
“Person” means an individual, a partnership, a joint venture, a corporation, an association, a trust, an estate or other entity or organization, including a government or any department or agency thereof.
“Proceeding” includes any threatened, pending or completed investigation, action, suit, arbitration, alternate dispute
resolution, mechanism, inquiry, administrative hearing or any other proceeding, whether brought by or in the right of the Company or otherwise, against the Indemnitee, for which indemnification is not prohibited under Sections 2(a), (b), (c) and (d) and whether of a civil, criminal, administrative or investigative nature, including, but not limited to, actions, suits or proceedings in which the Indemnitee may be or may have been involved as a party or otherwise, by reason of the fact that the Indemnitee is or was a director, officer, employee, fiduciary or agent of the Company, or is or was serving, at the request of the Company, as a director, officer, employee, fiduciary or agent of any other entity, including,
but not limited to, another corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise, or by reason of anything done or not done by the Indemnitee in any such capacity, whether or not the Indemnitee is acting or serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement or advancement of expenses can be provided under this Agreement.
19.Notices. Except as otherwise provided in this Agreement, any notice required or permitted to be given under this Agreement shall be given by registered or certified mail, postage prepaid with return receipt requested, to the residence of the Indemnitee at the address set forth in the Company records, or hand delivered to the Indemnitee, in the case
of notices to the Indemnitee.; and by registered or certified mail, postage prepaid with return receipt requested to the principal office of the Company, in the case of notices to the Company. Notices to the Company shall not be effective unless given to the Company at P.O. Box 14145, 2366 Bernville Road, Reading, PA19605, Attention: Vice President, General
Counsel & Secretary.
20.Miscellaneous. %3. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to its principles of conflicts of laws. The Company and the Indemnitee hereby irrevocably and unconditionally: (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Delaware Court and not in any other state or federal court in the United States, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement,
and (iii) waive, and agree not to plead or make, any claim that the Delaware Court lacks venue or that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.
(a) 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 need be produced as evidence of the existence of this Agreement.
(b) This Agreement shall not be deemed an employment contract between the
Company and the Indemnitee who is an officer of the Company.
(c) Upon a payment to the Indemnitee under this Agreement, the Company shall be subrogated to the extent of such payment to all the rights of the Indemnitee to recover against any Person for such liability, and the Indemnitee shall execute all documents and instruments required and shall take such other actions as may be necessary to secure such rights, including the execution of such documents as may be necessary for the Company to bring suit to enforce such rights.
(d) No
supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
(e) The Company shall not be liable under this Agreement to make any payment which is prohibited by applicable law, including, without limitation, (i) any liability of the Indemnitee to the Company under the Exchange Act, including under Section 16(b) of the Exchange Act, and (ii) if a final decision by a court of competent jurisdiction determines that such payment is prohibited
by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first above written.
ENERSYS
By: Name: David M. Shaffer Title: President & Chief Executive Officer
INDEMNITEE
Name: Title:
EXHIBIT
A
UNDERTAKING TO REPAY INDEMNIFICATION EXPENSES
I, ___________________________________________________, agree to reimburse the Company for all Expenses paid by the Company in connection with any Proceeding, upon the terms and subject to the conditions set forth in Section 15 of the Indemnification Agreement dated as of ____________, 20__, between the Company and me (the defined terms herein being as defined in such agreement).
