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EXHIBIT 10.9
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of the day
of February, 1998, by and between NATCO Group Inc., a Delaware corporation and
formerly named Xxxxxxxx Point Industries, Inc. (the "Company"), and (the
"Indemnitee").
RECITALS
A. The Indemnitee is presently serving as a director
and/or an officer of the Company and/or, at the request of the Company, in an
Authorized Capacity (as defined below) of or for Another Entity (as defined
below). The Company desires the Indemnitee to continue in such capacity and may
ask the Indemnitee to serve as a member of one or more committees of the Board
of Directors of the Company (the "Committees"). The Company believes that the
Indemnitee's undertaking of such responsibilities is important to the Company
and that the protection afforded by this Agreement will enhance the
Indemnitee's ability to discharge such responsibilities. The Indemnitee is
willing, subject to certain conditions including without limitation the
execution and performance of this Agreement by the Company and the Company's
agreement to provide the Indemnitee at all times the broadest and most
favorable (to Indemnitee) indemnification permitted by applicable law (whether
by legislative action or judicial decision), to continue in those capacities
(including as a member of one or more Committees).
B. In addition to the indemnification to which the
Indemnitee is entitled under the By-Laws of the Company, as amended (the
"By-Laws"), the Company may obtain (and if obtained, will use reasonable best
efforts to keep in force, at its sole expense) insurance protecting its
officers and directors and certain other persons (including the Indemnitee)
against certain losses arising out of actual or threatened actions, suits or
proceedings to which such persons may be made or threatened to be made parties.
The Company, however, may be unable to obtain such insurance, and, if obtained,
there can be no assurance as to the continuation or renewal thereof, or that
any such insurance will provide coverage for losses to which the Imdemnitee may
be exposed and for which he or she may be permitted to be indemnified under the
General Corporation Law of the State of Delaware (the "DGCL").
Now, Therefore, For and in consideration of the premises, the
mutual promises hereinafter set forth, the reliance of the Indemnitee hereon in
continuing to serve the Company or Another Entity in his present capacity and
in undertaking to serve the Company or Another Entity in any additional
capacity or capacities (including as a member of one or more Committees), the
Company and the Indemnitee agree as follows:
1. Continued Service. The Indemnitee will continue to serve as a
director or an officer of the Company (or both) or in each such Authorized
Capacity of or for Another Entity in which the Indemnity presently serves (or
both), as well as in such additional Authorized Capacities for the
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Company or Another Entity as the Board of Directors of the Company (the
"Board") may request, in each case so long as he is duly elected and qualified
to serve in such capacity or until he resigns or is removed.
2. Initial Indemnity. (a) The Company shall indemnify the
Indemnitee when the Indemnitee becomes involved in any manner (including as a
party, a deponent or a witness) or is threatened to be made so involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, formal or informal, and any appeals
therefrom (a "Proceeding") (other than a Proceeding by or in the right of the
Company), by reason of the fact that he is or was or had agreed to become a
director (including service as a member of one or more Committees), officer,
employee or agent of the Company, or is or was serving or had agreed to serve
at the request of the Company as a director (including service as a member of
one or more Committees), officer, partner, member, trustee, employee or agent
(each an "Authorized Capacity") of another corporation, partnership, joint
venture, trust or other enterprise (each "Another Entity"), or by reason of any
action alleged to have been taken or omitted in such capacity (including as a
member of one or more Committees), against any and all costs, charges and
expenses (including attorneys' and others' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him or her in connection
with such Proceeding if the Indemnitee acted in good faith and in a manner that
he reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal Proceeding, the Indemnitee had no
reasonable cause to believe his conduct was unlawful. The termination of any
Proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent will not, of itself, adversely affect the right of
the Indemnitee to indemnification or create a presumption that the Indemnitee
did not meet the foregoing standard of conduct to the extent applicable
thereto.
(b) The Company shall indemnify the Indemnitee when he
becomes a party or is threatened to be made a party to any Proceeding by or in
the right of the Company to procure a judgment in its favor by reason of the
fact that he is or was or had agreed to become a director, officer, employee or
agent of the Company, or is or was serving or had agreed to serve at the
request of the Company in an Authorized Capacity of or for Another Entity,
against any and all costs, charges and expenses (including attorneys' and
others' fees) actually and reasonably incurred by him or her in connection with
the investigation, preparation, defense, settlement or appeal of such
Proceeding if the Indemnitee acted in good faith and in a manner that he
reasonably believed to be in or not opposed to the best interests of the
Company, except that no indemnification will be made in respect of any claim,
issue or matter as to which the Indemnitee shall have been adjudged to be
liable to the Company unless, and only to the extent, that the Court of
Chancery or the court in which the Proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of all
circumstances of the case, the Indemnitee is fairly and reasonably entitled to
indemnity for such expenses as the Court of Chancery or such other court shall
deem proper.
(c) To the extent that the Indemnitee has been successful
on the merits or otherwise, including the dismissal of a Proceeding without
prejudice, in the defense of any
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Proceeding referred to in Section 2(a) or Section 2(b) or in the defense of any
claim, issue or matter in any such Proceeding, the Company shall indemnify him
against any and all costs, charges and expenses, including attorneys' and
others' fees, actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under Section 2(a) or Section
2(b) (unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination, in accordance with
Section 4, that such indemnification is proper in the circumstances because the
Indemnitee has met the applicable standards of conduct set forth in Section
2(a) and Section 2(b) (the "Indemnification Standards"). Such determination
will be made in the manner set forth in Section 4(b).
(e) Any and all costs, charges and expenses, including
attorneys' and others' fees, actually and reasonably incurred by the Indemnitee
in defending any Proceeding will be paid by the Company as incurred and in
advance of the final disposition of such Proceeding in accordance with the
procedure set forth in Section 4(e).
(f) Notwithstanding anything in this Agreement to the
contrary, the Indemnitee shall not be entitled to indemnification or
advancement of expenses pursuant hereto in connection with any Proceeding
initiated by the Indemnitee against the Company (except for any Proceeding
initiated by the Indemnitee pursuant to Section 6) unless the Company has
joined in or consented to the initiation of such Proceeding.
3. Additional Indemnification. (a) Pursuant to Section 145(f) of
the DGCL, without limiting any right which the Indemnitee may have under
Section 2, the By-Laws, the DGCL, any policy of insurance or otherwise, but
subject to the limitations set forth in Section 2(f) and to any maximum
permissible indemnity that may exist under applicable law at the time of any
request for indemnity hereunder as contemplated by this Section 3(a), the
Company shall indemnify the Indemnitee against any amount that he is or becomes
legally obligated to pay relating to or arising out of any claim made against
him because of any act, failure to act or neglect or breach of duty, including
any actual or alleged error, omission, misstatement or misleading statement,
that he commits, suffers, permits or acquiesces in while acting in his capacity
as a director or officer of the Company, or, at the request of the Company, in
an Authorized Capacity of or for Another Entity. The payments that the Company
is obligated to make pursuant to this Section 3 shall include damages,
judgments, fines, amounts paid in settlement and reasonable charges, costs and
expenses, including expenses of investigation, preparation, defense and
settlement of Proceedings and expenses of appeal, attachment or similar bonds;
provided, however, that the Company shall not be obligated under this Section
3(a) to make any payment in connection with any claim against the Indemnitee:
(i) to the extent of any fine or similar
governmental imposition that the Company is prohibited by
applicable law from paying and that results from a final,
nonappealable order; or
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(ii) to the extent based upon or attributable to
the Indemnitee gaining in fact a personal profit to which he
was not legally entitled, including profits made from the
purchase and sale of equity securities of the Company which
are recoverable by the Company pursuant to Section 16(b) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and profits arising from transactions in securities
which were effected in violation of Section 10(b) or Section
14(e) of the Exchange Act, including Rule 10b-5 or Rule 14e-3
promulgated thereunder.
The determination of whether the Indemnitee is entitled to indemnification
under this Section 3(a) shall be made in accordance with Section 4(b).
(b) Any and all costs, charges and expenses, including
attorneys' and others' fees, actually and reasonably incurred by the
Indemnitee in connection with any claim for which the Indemnitee may be
entitled to indemnification pursuant to Section 3(a) will be paid by the
Company as incurred and in advance of the final disposition thereof in
accordance with the procedure set forth in Section 4(e).
4. Certain Procedures Relating to Indemnification and Advancement
of Expenses. (a) Except as otherwise permitted or required by the DGCL, for
purposes of pursuing his rights to indemnification under Section 2(a), Section
2(b) or Section 3(a), as the case may be, the Indemnitee may, but shall not be
required to, submit to the Company (to the attention of the Secretary) a
request for indemnification substantially in the form of Exhibit 1 attached
hereto (the "Indemnification Request") stating that he believes that he is
entitled to indemnification pursuant to this Agreement, together with such
documents supporting the request as are reasonably available to the Indemnitee
and are reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification hereunder (the "Supporting
Documentation"). Upon receipt of any Indemnification Request, the officers of
the Company will promptly advise the Board in writing that the Indemnitee has
requested indemnification.
(b) The Indemnitee's entitlement to indemnification
under Section 2(a), Section 2(b) or Section 3(a), as the case may be, will be
determined promptly following a claim by the Indemnitee for indemnification
thereunder and in any event (if the Indemnitee submits to the Company an
Indemnification Request and Supporting Documentation) not less than 30 calendar
days after receipt by the Company of such Indemnification Request and Supporting
Documentation. The Indemnitee's entitlement to indemnification under Section
2(a) or Section 2(b) will, subject to the next sentence, be made in one of the
following ways: (i) by the Board by a majority vote of a quorum consisting of
directors who are not and were not parties to such Proceeding or claim
("Disinterested Directors"), (ii) by written opinion of independent legal
counsel selected by a majority of the Disinterested Directors (or, if there are
no Disinterested Directors or a majority vote thereof is not obtainable, by a
majority of the entire Board), if a quorum of the Board consisting of
Disinterested Directors is not obtainable or, even if obtainable, a quorum of
Disinterested Directors so directs, (iii) by the stockholders of the Company
(but only if a majority of Disinterested Directors, if they
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constitute a quorum of the Board, presents the issue of entitlement to
indemnification to the stockholders of the Company for their determination) or
(iv) as deemed to have been determined in accordance with Section 4(c). The
Indemnitee's entitlement to indemnification under Section 3(a) or, in the event
of a Change of Control (as hereinafter defined), under Section 2(a) or Section
2(b) will be determined by written opinion of independent legal counsel
selected by the Indemnitee. Independent legal counsel selected as described
above will be a law firm or member of a law firm (x) that neither at the time
in question nor in the five years immediately preceding such time has been
retained to represent (A) the Company (or any of its affiliates) or the
Indemnitee in any matter material to either such party or (B) any other party
to the Proceeding or claim giving rise to a claim for indemnification under
this Agreement, (y) that, under the applicable standards of professional
conduct then prevailing under the law of the State of Delaware, would not be
precluded from representing either the Company or the Indemnitee in an action
to determine the Indemnitee's rights under this Agreement and (z) to which the
Company, acting therein through a majority of the Disinterested Directors or,
if there are no Disinterested Directors, by a majority of the entire Board,
does not reasonably object. If the Company reasonably objects to such
independent legal counsel, the Indemnitee shall select another independent
legal counsel subject to similar reasonable objection until independent legal
counsel is agreed upon. The Company will pay the fees and expenses of such
independent legal counsel.
(c) Submission of an Indemnification Request and Supporting
Documentation to the Company pursuant to Section 4(b) will create a presumption
that the Indemnitee is entitled to indemnification under Section 2(a), Section
2(b) or Section 3(a), as the case may be, and thereafter the Company will have
the burden of proof to overcome that presumption in reaching a contrary
determination. Such presumption shall be overcome only by clear and convincing
evidence. Consequently, after submission of an Indemnification Request and
Supporting Documentation, the Indemnitee shall be entitled to indemnification
under Section 2(a), Section 2(b) or Section 3(a) unless within 30 days after
receipt of the Indemnification Request and Supporting Documentation by the
Company the person or persons empowered under Section 4(b) to determine
entitlement to indemnification have made a determination, based upon clear and
convincing evidence (sufficient to rebut the foregoing presumption), that the
Indemnitee is not entitled to such indemnification and the Indemnitee shall
have received notice within such period in writing of such determination, which
notice shall (i) disclose with particularity the evidence in support of such
determination, (ii) be sworn to by all persons who participated in the
determination and voted to deny indemnification and (iii), if such
determination was made by independent legal counsel, include a copy of the
related written opinion of such counsel. If the person or persons empowered
under Section 4(b) to determine the Indemnitee's entitlement to indemnification
have not been appointed or have not made a determination within such 30-day
period, the Indemnitee will be deemed to be entitled to indemnification. The
provisions of this Section 4(c) are intended to be procedural only and will not
affect the right of the Indemnitee to indemnification under this Agreement and
any determination that the Indemnitee is not entitled to indemnification and
any failure to make the payments requested in the Indemnification Request will
be subject to review as provided in Section 6.
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(d) If a determination is made or deemed to have been made
pursuant to this Section 4 that the Indemnitee is entitled to indemnification,
the Company shall pay to the Indemnitee the amounts to which the Indemnitee is
entitled within five business days thereafter,
(e) In order to obtain advancement of expenses pursuant to Section
2(e), the Indemnitee will submit to the Company a written undertaking
substantially in the form of Exhibit 2 attached hereto, executed personally or
on his behalf (the "Undertaking"), stating that (i) he has incurred or will
incur actual expenses in defending a Proceeding and (ii), if and to the extent
required by law at the time of such advance, he undertakes to repay such amounts
advanced as to which it may ultimately be determined that the Indemnitee is not
entitled. In order to obtain advancement of expenses pursuant to Section 3(b),
the Indemnitee may submit an Undertaking or, if an Undertaking is not legally
required under the circumstances, shall submit such other form of request as he
determines to be appropriate (an "Expense Request"), together with such other
support documentation as shall reasonably support the expenses claimed, Upon
receipt of an Undertaking or Expense Request, as the case may be, the Company
shall within five calendar days make payment of the costs, charges and expenses
stated in the Undertaking or Expense Request. No security will be required in
connection with any Undertaking or Expense Request and any Undertaking or
Expense Request will be accepted, and all such payments shall be made, without
reference to the Indemnitee's ability to make repayment.
5. Duplication of Payments. The Company will not be liable under
this Agreement to make any payment in connection with any claim made against
the Indemnitee to the extent the Indemnitee has actually received payment
(under any insurance policy, the By-Laws, the DGCL or otherwise) of the amount
otherwise payable hereunder.
6. Enforcement (a) If a claim for indemnification or advancement
of expenses made to the Company pursuant to Section 4 is not timely paid in
full by the Company as required by Section 4, the Indemnitee shall be entitled
to seek judicial enforcement of the Company's obligations to make such
payments. If a determination is made pursuant to Section 4 that the Indemnitee
is not entitled to indemnification or advancement of expenses hereunder, (i)
the Indemnitee may at any time thereafter seek an adjudication of his
entitlement to such indemnification or advancement either, at the Indemnitee's
sole option, in an appropriate court of the State of Delaware or any other
court of competent jurisdiction, (ii) any such judicial proceeding will be de
novo and the Indemnitee will not be prejudiced by reason of such adverse
determination and (iii) in any such judicial proceeding the Company will have
the burden of proving that the Indemnitee is not entitled to indemnification or
advancement of expenses under this Agreement.
(b) The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to the provisions of
Section 6(a) that the procedures and presumptions of this Agreement are not
valid, binding and enforceable and shall stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of this
Agreement.
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(c) In any action brought under Section 6(a), it shall be
a defense to a claim for indemnification pursuant to Section 2(a) or Section
2(b) (but not an action brought to enforce a claim for costs, charges and
expenses incurred in defending any Proceeding in advance of its final
disposition where the Undertaking, if any is required, has been tendered to the
Company) that the Indemnitee has not met the standards of conduct that make it
permissible under the DGCL for the Company to indemnify the Indemnitee for the
amount claimed, but the burden of proving such defense will be on the Company.
Neither the failure of the Company (including any person or persons empowered
under Section 4(b) to determine the Indemnitee's entitlement to
indemnification) to have made a determination pursuant to Section 4 prior to
commencement of such action nor an actual determination by the Company
(including any person or persons empowered under Section 4(b) to determine the
Indemnitee's entitlement to indemnification) that the Indemnitee has not met
such applicable standard of conduct shall be a defense to the action or create
a presumption that the Indemnitee has not met the applicable standard of
conduct.
(d) It is the intent of the Company that the Indemnitee
shall not be required to incur the expenses associated with the enforcement of
his rights under this Agreement by litigation or other legal action because the
cost and expense thereof would substantially detract from the benefits intended
to be extended to the Indemnitee hereunder. Accordingly, if it should appear to
the Indemnitee that the Company has failed to comply with any of its
obligations under this Agreement, or if the Company or any other person takes
any action to declare this Agreement void or unenforceable or institutes any
action, suit or proceeding designed (or having the effect of being designed) to
deny, or to recover from, the Indemnitee the benefits intended to be provided
to the Indemnitee hereunder, the Company irrevocably authorizes the Indemnitee
from time to time to retain counsel of his choice, at the expense of the
Company as hereafter provided, to represent the Indemnitee in connection with
the initiation or defense of any litigation or other legal action, whether by
or against the Company or any director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction relating to enforcement of
this Agreement. Notwithstanding any existing or prior attorney-client
relationship between the Company and such counsel, the Company irrevocably
consents to the Indemnitee's entering into an attorney-client relationship with
such counsel, and in that connection the Company and the Indemnitee acknowledge
that a confidential relationship will exist between the Indemnitee and such
counsel. Regardless of the outcome thereof, the Company will pay and be solely
responsible for any and all costs, charges and expenses, including attorneys'
and others' fees, incurred by the Indemnitee (i) as a result of the Company's
failure to perform this Agreement or any provision hereof or (ii) as a result
of the Company or any person contesting the validity or enforceability of this
Agreement or any provision hereof as aforesaid.
7. Liability Insurance and Funding. To the extent the Company
maintains an insurance policy or policies providing directors' and officers'
liability insurance, the Indemnitee will be covered by such policy or
policies, in accordance with its or their terms, to the maximum extent of the
coverage available for a director or officer of the Company or a person serving
at the request of the Company in an Authorized Capacity of or for Another
Entity, as the case may be. The Company
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may, but shall not be required to, create a trust fund, grant a security
interest or use other means (including a letter of credit) to ensure the
payment of such amounts as may be necessary to satisfy its obligations to
indemnify and advance expenses pursuant to this Agreement.
8. Change of Control, (a) If the Company sells or otherwise
disposes of all or substantially all of its assets or is a constituent
corporation in a consolidation, merger or other business combination
transaction or if there is a change of control (as defined below) of the
Company, (a) the Company will require (if it is not the surviving, resulting or
acquiring corporation therein) the surviving, resulting or acquiring
corporation expressly to assume the Company's obligations under this Agreement
and to agree to indemnify the Indemnitee to the full extent provided herein and
(b), whether or not the Company is the resulting, surviving or acquiring
corporation in any such transaction (or Change of Control), the Indemnitee will
also stand in the same position under this Agreement with respect to the
resulting, surviving or acquiring corporation as he would have with respect to
the Company if the transaction (or Change of Control) had not occurred.
(b) The Company agrees that, if there is a Change of
Control of the Company (other than a Change of Control which has been approved
by a majority of the Company's Board of Directors who were directors
immediately prior to such Change of Control), then, with respect to all matters
thereafter arising concerning the rights of the Indemnitee to indemnity
payments and advancement of expenses under this Agreement or any other
agreement or Certificate (as defined below) or By-law provision now or
hereafter in effect, the Company shall seek legal advice only from independent
legal counsel selected as provided in Section 4(b). Such counsel, among other
things, shall render its written opinion to the Company and Indemnitee as to
whether and to what extent the Indemnitee would be permitted to be indemnified
under applicable law. The Company agrees to pay the reasonable fees of such
independent legal counsel and to indemnify fully such counsel against any and
all expenses (including attorneys' fees), claims, liabilities and damages
arising out of or relating to this Agreement or its engagement pursuant hereto.
9. Partial Indemnity. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the costs, charges, expenses, judgments, fines and amounts paid in
settlement of a Proceeding but not, however, for the total amount thereof, the
Company shall nevertheless indemnify the Indemnitee for the portion thereof to
which the Indemnitee is entitled.
10. Nonexclusivity and Severability, (a) The right to
indemnification and advancement of expenses provided by this Agreement is not
exclusive of any other right to which the Indemnitee may be entitled under the
Certificate of Incorporation of the Company (the "Certificate"), By-Laws, the
DGCL, any other statute, insurance policy, agreement, vote of stockholders or
of directors or otherwise, both as to actions in his official capacity and as
to actions in another capacity while holding such office, and will continue
after the Indemnitee has ceased to serve as a director or officer of the
Company or in an Authorized Capacity in or for Another Entity and will inure to
the benefit
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of his heirs, executors and administrators; provided, however, that, to the
extent the Indemnitee otherwise would have any greater right to indemnification
or advancement of expenses under any provision of the Certificate or By-Laws as
in effect on the date hereof, the Indemnitee will be deemed to have such
greater right pursuant to this Agreement; and, provided further, that, inasmuch
as it is the intention of the Company to provide the Indemnitee with the
broadest and most favorable (to the Indemnitee) possible indemnity permitted by
applicable law (whether by legislative action or judicial decision), to the
extent that the DGCL currently permits or in the future permits (whether by
legislative action or judicial decision) any greater right to indemnification
or advancement of expenses than that provided under this Agreement as of the
date hereof, the Indemnitee will automatically, without the necessity of any
further action by the Company or the Indemnitee, be deemed to have such greater
right pursuant to this Agreement. Similarly, the Indemnitee shall have the
benefit of any future changes to the Certificate or By-Laws that grant or
permit any greater right to indemnification or advancement of expenses.
(b) The Company will not adopt any amendment to the
Certificate or By-Laws the effect of which would be to deny, diminish or
encumber the Indemnitee's rights to indemnity pursuant to the Certificate, the
By-Laws, the DGCL or any other applicable law as applied to any act or failure
to act occurring in whole or in part prior to the date upon which any such
amendment was approved by the Board or the stockholders, as the case may be.
Notwithstanding the foregoing, if the Company adopts any amendment to the
Certificate or By-Laws the effect of which is to so deny, diminish or encumber
the Indemnitee's rights to such indemnity, such amendment will apply only to
acts or failures to act occurring entirely after the effective date thereof.
(c) If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (i) the validity, legality and enforceability of the remaining
provisions of this Agreement (including 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
not in any way be affected or impaired thereby and (ii), to the fullest extent
possible, the provisions of this Agreement (including 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 manifested
by the provision held invalid, illegal or unenforceable. No claim or right to
indemnity or advancement of expenses pursuant to Section 3 hereof shall in any
way affect or limit any right which the Indemnitee may have under Section 2
hereof, the Certificate, the By-Laws, the DGCL, any policy of insurance or
otherwise.
11. Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflict of laws thereof.
12. Modification; Survival. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof, provided,
however, that this provision shall not be construed
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to affect the Company's obligations to the Indemnitee under the Certificate or
By-Laws. This Agreement may be modified only by an instrument in writing signed
by both parties hereto. The provisions of this Agreement shall survive the
death, disability, or incapacity of the Indemnitee or the termination of the
Indemnitee's service as a director or an officer of the Company or in an
Authorized Capacity of or for Another Entity and shall inure to the benefit of
the Indemnitee's heirs, executors and administrators.
13. Certain Terms. (a) For purposes of this Agreement, references
to a person's capacity as a "director" shall include without limitation such
person's capacity as a member of any committee appointed by the board of which
such person is a director; references to "Another Entity" will include employee
benefit plans; references to "fines" will include any excise taxes assessed on
the Indemnitee with respect to any employee benefit plan; and references to
"serving at the request of the Company" will include any service in any
capacity which imposes duties on, or involves services by, the Indemnitee with
respect to an employee benefit plan, its participants or beneficiaries;
references to Sections or Exhibits are to Sections or Exhibits of or to this
Agreement; references to the singular will include the plural and vice versa;
and if the Indemnitee acted in good faith and in a manner he or she reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan he or she will be deemed to have acted in a "manner not
opposed to the best interests of the Company" as referred to herein.
(b) For purposes of this Agreement, a "Change of Control"
shall be deemed to have occurred if (1) any "person" (as such term is used in
Sections 13 (d) and 14(d) of the Exchange Act), other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the total voting power represented by the Company's
then outstanding Voting Securities, (2) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors of the Company and any new director whose election by the Board of
Directors or nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still in office
who either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, or (3) the stockholders of the Company approve a
merger or consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series
of transactions) all or substantially all the Company's assets.
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(c) For purposes of this Agreement, the term "Voting
Securities" shall mean any securities of the Company which vote generally in
the election of directors.
(d) Unless the context otherwise requires, as used in
this Agreement: (a) a term has the meaning ascribed to it; (b) "or" is not
exclusive; (c) "including" means "including without limitation," (d) words in
the singular include the plural; (e) words in the plural include the singular;
(f) words applicable to one gender shall be construed to apply to each gender;
(g) the terms "hereof," "herein," "hereby," "hereto" and derivative or similar
words refer to this entire Agreement; and (i) the term "Section" shall refer to
the specified Section of this Agreement.
14. Joint Defense. Notwithstanding anything to the contrary
contained herein, if (a) the Indemnitee elects to retain counsel in connection
with any Proceeding or claim in respect of which indemnification may be sought
by the Indemnitee against the Company pursuant to this Agreement and (b) any
other director or officer of the Company or person serving at the request of
the Company in an Authorized Capacity of or for Another Entity may also be
subject to liability arising out of such Proceeding or claim and in connection
with such Proceeding or claim seeks indemnification against the Company
pursuant to an agreement similar to this Agreement, the Indemnitee, together
with such other persons, shall employ counsel to represent jointly the
Indemnitee and such other persons unless the Indemnitee determines that such
joint representation would be precluded under the applicable standards of
professional conduct then prevailing under the law of the State of Delaware, in
which case the Indemnitee will notify the Company (to the attention of the
Secretary) thereof and will be entitled to be represented by separate counsel.
15. EXPRESS NEGLIGENCE ACKNOWLEDGEMENT. WITHOUT LIMITING OR
ENLARGING THE SCOPE OF THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS
AGREEMENT, THE INDEMNITEE WILL BE ENTITLED TO INDEMNIFICATION HEREUNDER IN
ACCORDANCE WITH THE TERMS HEREOF, REGARDLESS OF WHETHER THE CLAIM GIVING RISE
TO SUCH INDEMNIFICATION OBLIGATION IS THE RESULT OF THE SOLE, CONCURRENT OR
COMPARATIVE NEGLIGENCE, OR STRICT LIABILITY, OF THE INDEMNITEE.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
NATCO GROUP INC.
By:
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Name:
Title: Senior Vice President
INDEMNITEE
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Name:
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EXHIBIT 1
INDEMNIFICATION REQUEST
1. This Indemnification Statement is submitted pursuant to the
Indemnification Agreement, dated as of February , 1998 (the "Indemnification
Agreement"), between NATCO GROUP INC., a Delaware corporation (the "Company"),
and the undersigned.
2. I am requesting indemnification in connection with a
Proceeding (as defined in the indemnification Agreement) or claim in which I
was or am involved or am threatened to be made involved.
3. With respect to all matters related to any such Proceeding or
claim, I believe that I am entitled to be indemnified pursuant to the
provisions of the Indemnification Agreement.
4. Without limiting any other rights which I have or may have, I
am requesting indemnification against liabilities that have or may arise out of
.
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5. I have attached such documents supporting this request as are
reasonably available to me and are reasonably necessary to determine whether
and to what extent I am entitled to indemnification under the Indemnification
Agreement.
------------------------
Name:
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14
EXHIBIT 2
UNDERTAKING
1. This Undertaking is submitted pursuant to the Indemnification
Agreement, dated as of February , 1998 (the "Indemnification Agreement"),
between NATCO GROUP INC., a Delaware corporation (the "Company"), and the
undersigned.
2. I am requesting advancement of certain costs, charges and
expenses (including attorneys' and others' fees) that I have incurred or will
incur in defending a Proceeding (as defined in the Indemnification Agreement)
or in connection with a claim for which I may be entitled to indemnification
pursuant to the Indemnification Agreement.
3. I hereby undertake to repay this advancement of expenses if it
is ultimately determined that I am not entitled to be indemnified by the
Company under the Indemnification Agreement.
4. The costs, charges and expenses for which advancement is
requested are, in general, all expenses related to
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.
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Name:
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