Exhibit 10.35
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and entered into
as of ______________, 200__ by and among Actuant Corporation, a Wisconsin
corporation (the "Company"), and ____________________, a director and/or officer
of the Company (the "Indemnitee").
RECITALS
WHEREAS, damages sought against directors and officers in shareholder
or similar litigation may be substantial, and the costs of defending such
actions, and of judgments in favor of plaintiffs or of settlement therewith, may
be prohibitive for individual directors and officers, without regard to the
merits of a particular action and without regard to the culpability of, or the
receipt of improper personal benefit by, any named director or officer; and
WHEREAS, the long period of time which may elapse before final
disposition of such litigation may impose undue hardship and burden on a
director or officer or his estate in maintaining a proper and adequate defense
of himself or his estate against claims for damages; and
WHEREAS, the Company desires to retain the services of highly qualified
individuals, to serve as directors and officers of the Company; and
WHEREAS, the Board of Directors of the Company (the "Board") has
concluded that it is reasonable and prudent for the Company to enter into an
agreement to indemnify in a reasonable and adequate manner the Indemnitee and to
assume for itself maximum liability for expenses and damages in connection with
claims lodged against Indemnitee for his decisions and actions as a director
and/or officer of the Company.
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which is acknowledged
by each of the parties hereto, the parties agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings set
forth below:
Section 1.1 "Board" shall mean the Board of Directors of the Company.
Section 1.2 "Change in Control" shall mean:
(i) a sale of over 50% of the stock of the Company measured in terms
of voting power, other than in a public offering; or
(ii) the sale by the Company of over 50% of its business or assets
in one or
more transactions over a consecutive 12-month period; or
(iii) a merger or consolidation of the Company with or into any
other corporation or corporations such that the shareholders of the
Company prior to the merger or consolidation do not own at least 50%
of the surviving entity measured in terms of voting power; or
(iv) the acquisition by any means of more than 25% of the voting
power or common stock of the Company by any person or group of persons
(with group defined by the definitions under Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended); or
(v) the election of directors constituting a majority of the
Company's board of directors pursuant to a proxy solicitation not
recommended by the Company's board of directors.
Section 1.3 "Corporate Status" shall mean the status of a person who is or
was a director or officer of the Company, or a member of any committee of the
Board, and the status of a person who, while a director or officer of the
Company, is or was serving at the request of the Company as a director, officer,
partner, trustee, member of any governing or decision-making committee, manager,
employee or agent of another foreign or domestic corporation, limited liability
company, partnership, joint venture, trust, or enterprise and the status of a
person who, while a director or officer of the Company, is or was serving an
employee benefit plan because his or her duties to the Company also impose
duties on, or otherwise involve services by, the person to the plan or to
participants in or beneficiaries of the plan.
Section 1.4 "Disinterested Director" shall mean a director of the Company who
is not a party to the Proceeding in respect of which indemnification is being
sought by the Indemnitee or a related Proceeding.
Section 1.5 "Expenses" shall mean, without limitation, all reasonable
expenses incurred in connection with any Proceeding, including all fees,
attorneys' fees and all other cost, charges, disbursements or expenses incurred
in connection with a Proceeding.
Section 1.6 "Liabilities" shall mean all liabilities or obligations of any
type whatsoever, including, without limitation, any obligation to pay a
judgment, settlement, penalty, assessment, forfeiture or fine, including an
excise tax with respect to an employee benefit plan, and Expenses incurred, paid
or suffered in connection with any Proceeding.
Section 1.7 "Non-Indemnifiable Liabilities" shall mean Liabilities incurred
because the director or officer breached or failed to perform a duty owed to the
Company which breach or failure constitutes any of the following:
(i) a willful failure to deal fairly with the Company or its
shareholders in connection with a matter in which the director or officer
has a material conflict of interest;
(ii) a violation of criminal law, unless the director or officer had
reasonable
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cause to believe that his or her conduct was lawful or no reasonable cause
to believe that his or her conduct was unlawful;
(iii) a transaction from which the director or officer derived an
improper personal profit; or
(iv) willful misconduct.
"Non-Indemnifiable Liabilities" shall also include Liabilities for which
Indemnitee has previously received indemnification from any person.
Section 1.8 "Proceeding" shall mean any threatened, pending or completed civil,
criminal, administrative or investigative action, suit, arbitration, or other
proceeding, whether formal or informal, which involved foreign, federal, state
or local law and which is brought by or in the right of the Company or any other
person, including without limitation, any proceeding involving securities
regulation.
Section 1.9 "Voting Securities" shall mean any securities of the Company that
are entitled to vote generally in the election of directors.
ARTICLE II
NOTICE OF PROCEEDINGS AND DEFENSE OF CLAIMS
Section 2.1 Notice of Proceedings. The Indemnitee agrees to notify the Company
promptly in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder, but the Indemnitee's failure to so notify the Company shall
not relieve the Company from any liability which it may have to the Indemnitee
under this Agreement.
Section 2.2 Defense of Claims. The Company will be entitled to participate, at
its own expense, in any Proceeding of which it has notice. The Company, jointly
with any other indemnifying party similarly notified of any Proceeding, will be
entitled to assume the defense of the Indemnitee therein, with counsel
reasonably satisfactory to the Indemnitee, upon delivery of written notice to
Indemnitee of its election to do so; provided, however, that the Company shall
not be entitled to assume the defense of the Indemnitee in any Proceeding if
there has been a Change in Control or if the Indemnitee has reasonably concluded
that there may be a conflict of interest between the Company and the Indemnitee
with respect to such Proceeding. After notice from the Company to the Indemnitee
of its election to assume the defense of the Indemnitee and the retention by the
Company of counsel reasonably satisfactory to Indemnitee, the Company will not
be liable to the Indemnitee under this Agreement for any Expenses incurred
thereafter by the Indemnitee in connection with the defense of any Proceeding,
other than reasonable costs of investigation or as otherwise provided below.
Notwithstanding the foregoing, the Indemnitee shall have the right to employ his
own counsel in any such Proceeding if (i) the employment of counsel by the
Indemnitee has been authorized by the Company; (ii) the Indemnitee shall have
reasonably concluded that counsel employed by the Company may not adequately
represent the Indemnitee due to a conflict of interest between the Company and
the Indemnitee with respect to
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such Proceeding and shall have so informed the Company; or (iii) the Company
shall not in fact have employed counsel to assume the defense of the Indemnitee
in such Proceeding or the counsel employed by the Company shall not, in fact,
have assumed such defense or such counsel shall not be acting, in connection
therewith, with reasonable diligence; and in each such case the fees and
expenses of the Indemnitee's counsel shall be an Expense under this Agreement
and shall therefore be advanced by the Company in accordance with this
Agreement.
Section 2.3 Settlement of Claims. The Company shall not settle any Proceeding
in any manner which would impose any liability, penalty or limitation on the
Indemnitee without the written consent of the Indemnitee; provided, however,
that the Indemnitee will not unreasonably withhold or delay consent to any
proposed settlement. The Company shall not be liable to indemnify the Indemnitee
under this Agreement or otherwise for any amounts paid in settlement of any
Proceeding effected by the Indemnitee without the Company's written consent,
which consent shall not be unreasonably withheld or delayed.
ARTICLE III
PERIOD OF LIMITATIONS
No legal action shall be brought and no cause of action shall be asserted
by or in the right of the Company against Indemnitee, Indemnitee's estate,
spouse, heirs, executors or personal or legal representatives after the
expiration of two years from the date of accrual of such cause of action, and
any claim or cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action, such shorter period shall
govern.
ARTICLE IV
INDEMNIFICATION
Section 4.1 General. In addition to the Company's specific obligations set
forth below, the Company hereby agrees to indemnify the Indemnitee to the
fullest extent required or permitted by the Company's Articles of Incorporation
or Bylaws and by applicable law in effect on the date hereof and to such greater
extent as applicable law may hereafter from time to time permit. For all matters
for which the Indemnitee is entitled to indemnification under this Article IV,
the Indemnitee shall be entitled to advancement of Expenses in accordance with
Article V hereof. The Company's obligation to indemnify and advance Expenses
pursuant to this Agreement shall apply to all Proceedings, regardless of whether
the underlying events, acts or omissions occurred before or after the date
hereof.
Section 4.2 Successful Defense. The Company shall indemnify Indemnitee, to the
extent Indemnitee has been successful on the merits or otherwise in the defense
of a Proceeding, for all Expenses incurred in a Proceeding to which Indemnitee
is a party because of the Indemnitee's Corporate Status.
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Section 4.3 As a Party to a Proceeding. The Company shall indemnify Indemnitee
against all Liabilities, other than Non-Indemnifiable Liabilities, incurred by
Indemnitee in a Proceeding to which Indemnitee is a party because of the
Indemnitee's Corporate Status.
Section 4.4 Other Proceedings. Notwithstanding any other provision in this
Agreement, the Company shall indemnify Indemnitee against all Liabilities
incurred by Indemnitee with respect to a Proceeding either (i) as a witness in a
Proceeding to which Indemnitee is not a party or (ii) as a plaintiff or
petitioner because of Indemnitee's Corporate Status.
ARTICLE V
ADVANCEMENT OF EXPENSES
Upon written request by Indemnitee who is a party to a Proceeding because
of the Indemnitee's Corporate Status, the Company shall advance to the
Indemnitee all Expenses which are incurred by or for Indemnitee in connection
with the Proceeding, as incurred, provided that the Indemnitee provides the
Company with all of the following: (i) a written affirmation of Indemnitee's
good faith belief that Indemnitee has not breached or failed to perform
Indemnitee's duties to the Company, and (ii) a written undertaking, executed
personally or on Indemnitee's behalf, to repay the advanced Expenses and, if
required by the Company, to pay reasonable interest on the advanced Expenses to
the extent that it is ultimately determined that indemnification of Indemnitee
with respect to such Proceeding is not required nor ordered by a court of
competent jurisdiction. Such undertaking shall be an unsecured, unlimited
general obligation of Indemnitee and shall be accepted without reference to
Indemnitee's ability to repay the advanced Expenses. The Company shall advance
such Expenses within five (5) business days after the receipt by the Company of
the documents to be delivered by Indemnitee pursuant to this Article. The
Indemnitee hereby agrees to repay any Expenses advanced hereunder if it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
against such Expenses.
ARTICLE VI
PROCEDURE FOR PAYMENT OF LIABILITIES; DETERMINATION
OF RIGHT TO INDEMNIFICATION
Section 6.1 Procedure for Payment. To obtain indemnification for Liabilities
under this Agreement, the Indemnitee shall submit to the Company a written
request for payment, including with such request such documentation as is
reasonably available to the Indemnitee and reasonably necessary to determine
whether, and to what extent, the Indemnitee is entitled to indemnification and
payment hereunder. The Secretary of the Company, or such other person as shall
be designated by the Board of Directors, promptly upon receipt of a request for
indemnification shall advise the Board of Directors, in writing, of such
request. Any indemnification payment due hereunder shall be paid by the Company
within ten (10) business days following a determination, pursuant to this
Article VI, that such indemnification payment is proper hereunder. Any
indemnification payment due under Section 4.4 shall be paid by the Company
within ten (10) business days of Indemnitee's request, without need for a
determination pursuant to Section 6.2.
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Section 6.2 Forum for Determination. The Indemnitee shall be entitled to select
from among the following means for determining Indemnitee's right to
indemnification:
(i) By a majority vote of a quorum of the Board consisting of
Disinterested Directors. If a quorum of Disinterested Directors cannot be
obtained, by majority vote of a committee duly appointed by the Board and
consisting solely of 2 or more Disinterested Directors. Directors who are
not Disinterested Directors may participate in the designation of members
of the committee;
(ii) By independent legal counsel selected by a quorum of the Board or
its committee in the manner prescribed in (i) above or, if unable to obtain
such a quorum or committee, by a majority vote of the full Board, including
directors who are not Disinterested Directors;
(iii) By a panel of 3 arbitrators consisting of one arbitrator
selected by those directors entitled under (ii) above to select independent
legal counsel, one arbitrator selected by Indemnitee and one arbitrator
selected by the 2 arbitrators previously selected;
(iv) By an affirmative vote of Voting Securities in accordance with
Wisconsin law. Shares owned by, or voted under the control of, persons who
are at the time parties to the same or related Proceedings, whether as
plaintiffs or defendants or in any other capacity, may not be voted in
making the determination; or
(v) By order of a court of competent jurisdiction.
As soon as practicable, and in no event later than thirty (30) days after
written notice of the Indemnitee's choice of forum pursuant to this Section 6.2,
the Company shall, at its own expense, submit Indemnitee's claim for
indemnification and any claim the Company has with respect to Non-Indemnifiable
Liabilities. The fees and expenses of the selected forum in connection with
making the determination contemplated hereunder shall be paid by the Company.
Section 6.3 Expenses under this Agreement. Notwithstanding any other provision
in this Agreement to the contrary, the Company shall indemnify the Indemnitee
against all Expenses incurred by the Indemnitee in connection with any hearing
or proceeding under this Article VI involving the Indemnitee if the Indemnitee
is successful in such claim and against all Expenses incurred by the Indemnitee
in connection with any other action between the Company and the Indemnitee
involving the interpretation or enforcement of the rights of the Indemnitee
under this Agreement, if it is determined that the Indemnitee was entitled to
indemnification in whole or in part thereunder.
ARTICLE VII
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS
Section 7.1 Effect of Other Proceedings. The termination of any Proceeding or
of any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of no contest
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or an equivalent plea, shall not, by itself, create a presumption that
indemnification is not required hereunder.
Section 7.2 Actions of Others. The knowledge and/or actions, or failure to act,
of any other director, officer, agent or employee of the Company shall not be
imputed to the Indemnitee for purposes of determining the right to
indemnification under this Agreement.
ARTICLE VIII
INSURANCE
In the event that the Company maintains officers' and directors' or similar
liability insurance to protect itself and any director or officer of the Company
against any expense, liability or loss, such insurance shall cover the
Indemnitee to at least the same degree as each other director and/or officer of
the Company.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Non-Exclusivity. The rights of the Indemnitee hereunder shall be in
addition to any other rights to which the Indemnitee may at any time be entitled
under any provision of law or the Articles of Incorporation or the Bylaws of the
Company, as the same may be in effect from time to time, or any agreement, a
vote of shareholders of the Company or a resolution of directors of the Company
or otherwise, and to the extent that during the term of this Agreement the
rights of the then-existing directors and officers of the Company are more
favorable to such directors or officers than the rights currently provided to
the Indemnitee under this Agreement, the Indemnitee shall be entitled to the
full benefits of such more favorable rights. No amendment, alteration,
rescission or replacement of this Agreement or any provision hereof which would
in any way limit the benefits and protections afforded to an Indemnitee hereby
shall be effective as to such Indemnitee with respect to any action or inaction
by such Indemnitee in the Indemnitee's Corporate Status prior to such amendment,
alteration, rescission or replacement.
Section 9.2 Subrogation. In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all documents required and take
all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such
rights.
Section 9.3 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (i) if
delivered by hand, or by courier and receipted for by the party to whom said
notice or other communication shall have been directed at the time indicated on
such receipt; or (ii) if by U.S. certified or registered mail, with postage
prepaid, on the third business day after the date on which it is so mailed:
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If to the Indemnitee, as shown with the Indemnitee's signature below.
If to the Company, to:
Actuant Corporation
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Secretary
or to such other address as may have been furnished to the Indemnitee by the
Company or to the Company by the Indemnitee, as the case may be.
Section 9.4 Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the substantive
laws of the State of Wisconsin, without application of the conflict of laws
principles thereof.
Section 9.5 Binding Effect. Except as otherwise provided in this Agreement,
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their heirs, executors, administrators,
successors, legal representatives and permitted assigns. The Company shall
require any successor or assignee (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of its
respective assets or business, by written agreement in form and substance
reasonably satisfactory to the Indemnitee, to assume and agree to be bound by
and to perform this Agreement in the same manner and to the same extent as the
Company would be required to perform absent such succession or assignment.
This Agreement shall continue in effect regardless of whether Indemnitee
continues to serve as an executive officer, director, employee, agent or other
representative of the Company.
Section 9.6 Waiver. No termination, cancellation, modification, amendment,
deletion, addition or other change in this Agreement, or any provision hereof,
or waiver of any right or remedy herein, shall be effective for any purpose
unless specifically set forth in a writing signed by the party or parties to be
bound thereby. The waiver of any right or remedy with respect to any occurrence
on one occasion shall not be deemed a waiver of such right or remedy with
respect to such occurrence on any other occasion.
Section 9.7 Entire Agreement. This Agreement, constitutes the entire agreement
and understanding among the parties hereto in reference to the subject matter
hereof; provided, however, that the parties acknowledge and agree that the
Bylaws of the Company contain provisions on the subject matter hereof and that
this Agreement is not intended to, and does not, limit the rights or obligations
of the parties hereto pursuant to such Bylaws.
Section 9.8 Titles. The titles to the articles and sections of this Agreement
are inserted for convenience of reference only and should not be deemed a part
hereof or affect the construction or interpretation of any provisions hereof.
Section 9.9 Severability. Every provision of this Agreement is severable. In
the event that the invalidity or any term or provision (including any provision
within a single section, paragraph or section) is held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, the remaining
terms and provisions shall remain enforceable to the fullest extent
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permitted by law. Furthermore, to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each portion of this Agreement
containing any provision held to be invalid, void or otherwise unenforceable,
that is not itself invalid, void or otherwise enforceable) shall be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
Section 9.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together constitute one agreement binding on all the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ACTUANT CORPORATION
By:
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Name:
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Title:
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INDEMNITEE
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(Name)
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(Address)
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