Exhibit 10.11
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of this 15th day of April 2003, by and
between Signal Technology Corporation, a Delaware corporation (the
"Corporation"), and __________________ ("Indemnitee").
WHEREAS, Indemnitee currently serves as a director and/or an officer of
the Corporation, and, as such, may be subjected to claims, suits or proceedings
arising as a result of such service;
WHEREAS, the Corporation has agreed to indemnify Indemnitee against
expenses and costs incurred by Indemnitee in connection with any such claims,
suits or proceedings, in accordance with, and to the fullest extent authorized
by, the General Corporation Law of the State of Delaware as it may be in effect
from time to time (but, in the case of any such amendment(s), only to the extent
it permits a Delaware corporation to provide, as a whole, broader
indemnification rights than said law permitted such corporation prior to such
amendment(s)) (the "Delaware Law");
WHEREAS, the Corporation is contemplating a cash merger with STC Merger
Co., an indirect wholly-owned subsidiary of Crane Co. (the "Merger");
WHEREAS, at the effectiveness of the Merger under Delaware Law (the
"Effective Time"), the Corporation shall become, by operation of law, the
surviving corporation in the Merger (the "Surviving Corporation");
WHEREAS, for purposes of this Agreement, if the Merger is consummated,
all references herein to the Corporation shall mean the Surviving Corporation at
and after the Effective Time;
WHEREAS, certain officers of the Corporation shall continue as officers
of the Surviving Corporation after the Merger; and
WHEREAS, the parties desire to set forth the terms and conditions of
such indemnification.
NOW, THEREFORE, in consideration of the promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
Section 1. Agreement to Indemnify. Subject to Section 8 hereof, the
Corporation shall indemnify and hold harmless Indemnitee, to the fullest extent
authorized by the Delaware Law, from and against any expenses (including, but
not limited to, expenses of investigation and preparation and fees and
disbursements of counsel, accountants and other experts), judgments, fines,
liability, losses and amounts paid in settlement, actually
and reasonably incurred by Indemnitee in connection with any threatened, pending
or completed action, suit, claim or proceeding (hereinafter, a "proceeding"),
including affirmative defenses raised therein, whether civil, criminal,
administrative or investigative, by reason of the fact that Indemnitee is or was
a director or officer of the Corporation, or, after the Effective Time, shall
serve at the specific request of the Corporation as a director, officer,
employee, fiduciary or agent of another corporation, partnership, joint venture,
trust or other enterprise, and whether or not the cause of such proceeding
occurred before or after the date of this Agreement. Notwithstanding the
foregoing, except as provided in Section 7 hereof, the Corporation shall
indemnify Indemnitee in connection with a proceeding (or part thereof) initiated
by Indemnitee only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation. For purposes of this Agreement, the terms
"corporation," "other enterprise," "fines" and "serving at the request of the
corporation" shall have the meanings provided in Section 145 of the Delaware
Law.
Section 2. Procedure for Indemnification. Any indemnification under
Section 1 of this Agreement or advance of expenses under Section 5 of this
Agreement shall be made promptly, and in any event within 20 days, upon the
written request of Indemnitee. If the Corporation fails to respond within 60
days of a written request for indemnity, the Corporation shall be deemed to have
approved the request. If the Corporation denies a written request for
indemnification or advancement of expenses, in whole or in part, or if payment
in full pursuant to such request is not made within the time periods set forth
in this Section 2, the right to indemnification or advances as granted by this
Agreement shall be enforceable by Indemnitee in any court of competent
jurisdiction. Indemnitee's costs and expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in part, in
any such action shall also be indemnified by the Corporation, in accordance with
Section 7 of this Agreement. Except as set forth in the second sentence of this
Section 2, it shall be a defense by the Corporation to any such action (other
than an action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any, has been tendered to the Corporation) that Indemnitee has not met the
standard of conduct which make it permissible under Delaware Law, as determined
in accordance with Delaware Law, for the Corporation to indemnify Indemnitee for
the amount claimed, but the burden of proving such defense, by a preponderance
of evidence, shall be on the Corporation and Indemnitee shall be presumed to
have acted in accordance with such standard unless it shall be so shown that
Indemnitee has not met such standard. The failure of the Corporation to have
made a determination prior to the commencement of any such action that
indemnification of Indemnitee is proper because the applicable standard of
conduct has been met shall not be a defense to such action or create a
presumption that Indemnitee has not met the applicable standard of conduct.
Section 3. Notice to Corporation. Indemnitee shall notify the
Corporation in writing of any matter with respect to which Indemnitee intends to
seek indemnification hereunder as soon as reasonably practicable following the
receipt by Indemnitee of written notice thereof; provided, that a delay in
notifying the Corporation shall not
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constitute a waiver by Indemnitee of his rights hereunder except to the extent
that the Corporation is materially prejudiced thereby.
[Section 4. Control of Defense. Indemnitee shall control the defense
(including the selection of qualified counsel) of any proceeding against him
which may give rise to a right of indemnification hereunder; provided, however,
that if any insurance carrier which shall have supplied any directors' and
officers' insurance coverage shall be willing to conduct such defense without
any reservation as to coverage, then, unless on written application by
Indemnitee concurred with by the Board of Directors of the Corporation,
Indemnitee and the Board of Directors deem it undesirable, such insurance
carrier shall select counsel to conduct such defense. Indemnitee shall conduct
the defense of any such proceeding in good faith and with diligence. Indemnitee
shall timely notify the Corporation of any significant developments in the
proceeding and any significant decisions to be made in respect thereto.
Indemnitee shall give the Corporation the opportunity to participate in (at the
Corporation's expense), and shall actively cooperate with the Corporation in,
the defense and (subject to Section 6 below) the settlement or compromise of any
such proceeding.
Section 5. Expenses. In the event of any proceeding against Indemnitee
which may give rise to a right of indemnification pursuant to this Agreement,
following a written request to the Corporation by Indemnitee, the Corporation
shall advance to Indemnitee amounts equal to reasonable expenses incurred by
Indemnitee in defending such proceeding in advance of the final disposition
thereof upon receipt of (i) an undertaking in the form attached hereto as
Exhibit A by or on behalf of Indemnitee to repay such amount if it shall
ultimately be determined by final judgment of a court of competent jurisdiction
that he or she is not entitled to be indemnified by the Corporation hereunder,
and (ii) satisfactory documentation as to the amount of such expenses.
Indemnitee's written certification together with a true and correct copy of the
statement paid or agreed to be paid by Indemnitee shall constitute satisfactory
documentation for purposes of subparagraph (ii) hereof.
Section 6. Settlement. Indemnitee shall not settle or compromise any
proceeding covered by this Agreement without first obtaining written consent to
such settlement or compromise from the Corporation, which consent in no event
shall be unreasonably withheld or delayed. In the event that the Corporation
unreasonably withholds or delays such consent and, as a direct result, the
aggregate liability of the Corporation exceeds the limitation set forth in
Section 8 hereof, such limitation shall not apply to such proceeding.
Section 7. Collection Costs. In the event that Indemnitee is required
to bring any action to enforce rights or to collect amounts due under this
Agreement and is successful in such action, the Corporation shall reimburse
Indemnitee for all of Indemnitee's costs and expenses in bringing and pursuing
such action.
Section 8. Limitations on Indemnification and Expenses. Notwithstanding
anything in this Agreement to the contrary (other than Section 6 hereof), the
aggregate liability of the Corporation under this Agreement (other than any
liability under Section 7
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hereof) shall in no event exceed (x) the amount of ten million dollars
($10,000,000) less (y) the aggregate amount incurred by the Corporation from the
date of this Agreement through the date of determination in respect of
indemnification and expense obligations to Indemnitee and the other individuals
listed on Exhibit B to this Agreement. For the avoidance of doubt, Indemnitee
acknowledges and agrees that (i) the Corporation is entering into an agreement
with each of the individuals listed on Exhibit B to this Agreement (each of whom
is an officer and/or director of the Corporation on the date of this Agreement)
in the form hereof, (ii) the aggregate liability of the Corporation in respect
of indemnification and expense obligations to all such individuals (other than
any liability under Section 7 hereof) shall in no event exceed ten million
dollars ($10,000,000) (except as set forth in Section 6 hereof) and (iii) this
Agreement, unless earlier terminated pursuant to Section 9 hereof, shall
immediately and automatically terminate on the date that the aggregate liability
of the Corporation incurred in respect of indemnification and expense
obligations to such individuals (other than any liability under Section 7
hereof) equals ten million dollars ($10,000,000) (except as set forth in Section
6 hereof). Upon the termination of this Agreement pursuant to this Section 8,
the Corporation shall have no further liabilities or obligations hereunder,
other than any liability under Section 7 hereof and except as set forth in
Section 6 hereof.
Section 9. Termination. This Agreement shall automatically terminate
upon the sixth (6th) anniversary of the date hereof. Upon a termination of this
Agreement pursuant to this Section 9, the Corporation shall have no further
obligations or liabilities hereunder except in respect of proceedings that were
commenced but not concluded prior to the termination hereof but subject in all
cases to the limitation set forth in Section 8 hereof. Any unsatisfied
undertaking of Indemnitee to repay expenses advanced pursuant to Section 5
hereof shall survive such termination.
Section 10. Exclusive Rights. Indemnitee hereby acknowledges and agrees
that the indemnification rights and the rights to payment of expenses granted to
Indemnitee under this Agreement are the sole and exclusive rights of Indemnitee
to indemnification and/or payment of expenses by the Corporation or any of its
subsidiaries or affiliates. Indemnitee hereby irrevocably waives any and all
rights (other than those set forth in this Agreement) that Indemnitee has or is
alleged to have against the Corporation for indemnification and/or payment of
expenses, whether such rights arose or are alleged to have arisen under contract
(written or oral), statute (other than as required under Delaware Law), course
of dealing, custom or otherwise. Indemnitee hereby acknowledges and agrees that
this Agreement supersedes and replaces any prior agreements, whether oral or
written, it had with the Corporation and further acknowledges that he is not
entitled to any rights or benefits of indemnification from Crane Co. (except as
provided in the Crane Co. Guarantee attached hereto) or the Surviving
Corporation (other than as successor to the Corporation's obligations under this
Agreement following the Merger). Notwithstanding the foregoing, nothing herein
is intended or shall have the effect of limiting the provisions of Article 10 of
the Corporation's current Certificate of Incorporation (relating to limiting the
personal monetary liability of a director).
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Section 11. Successors and Assigns. The rights granted to Indemnitee
hereunder shall inure to the benefit of Indemnitee, his personal
representatives, heirs, executors, administrators and beneficiaries, and this
Agreement shall be binding upon the Corporation, its successors and assigns.
Section 12. Miscellaneous. This Agreement and the rights and
obligations of the parties hereunder shall be governed by the internal laws, and
not the laws of conflict of laws, of the State of Delaware. The captions used in
this Agreement are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit, characterize or affect in any way
any of the provisions of this Agreement, and all of the provisions of this
Agreement shall be enforced and construed as if no captions had been used in
this Agreement. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, and all of which together shall constitute
one and the same instrument. No amendment, modification or alteration of the
terms or provisions of this Agreement or the Exhibits hereto shall be binding
unless the same shall be in writing and duly executed by the parties hereto. Any
provision of this Agreement may be waived if, and only if, such waiver is in
writing and signed by the party against whom the wavier is to be effective. No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above written.
SIGNAL TECHNOLOGY CORPORATION
By:_________________________________
Name:_______________________________
Title:______________________________
___________________________________
Indemnitee
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EXHIBIT A
FORM OF EXPENSE REIMBURSEMENT UNDERTAKING
THIS UNDERTAKING has been entered into by _____________ (hereinafter
"Indemnitee") pursuant to an Indemnification Agreement, dated ________ ___, 2003
(the "Indemnification Agreement"), between Signal Technology Corporation, a
Delaware corporation (the "Corporation"), and Indemnitee.
WITNESSETH:
WHEREAS, pursuant to the Indemnification Agreement, the Corporation has
agreed to pay expenses incurred by Indemnitee in connection with any pending,
threatened or completed proceeding (within the meaning of the Indemnification
Agreement) against Indemnitee, whether civil, criminal, administrative or
investigative, by reason of the fact that Indemnitee is or was a director or
officer of the Corporation, or, after the Effective Time (within the meaning of
the Indemnification Agreement), shall serve at the specific request of the
Corporation as a director, officer, employee, fiduciary or agent of another
corporation, partnership, joint venture, trust or other enterprise; and
WHEREAS, such a proceeding has arisen against Indemnitee and Indemnitee
has notified the Corporation thereof in accordance with the terms of Section 3
of the Indemnification Agreement (hereinafter the "Proceeding").
NOW, THEREFORE, Indemnitee hereby agrees that in consideration of the
Corporation's advance payment of Indemnitee's expenses incurred prior to a final
disposition of the Proceeding, Indemnitee hereby undertakes to reimburse the
Corporation for any and all expenses paid by the Corporation on behalf of
Indemnitee prior to a final disposition of the Proceeding in the event that
Indemnitee is determined to be required to repay such amounts to the Corporation
pursuant to the Indemnification Agreement; provided, that if Indemnitee is
entitled to indemnification for some or a portion of such expenses, Indemnitee's
obligation to reimburse the Corporation shall only be for those expenses for
which Indemnitee is determined to be required to so repay. Such reimbursement or
arrangements for reimbursement by Indemnitee shall be consummated within thirty
(30) days after a determination that Indemnitee is so required to repay such
amounts to the Corporation pursuant to the Indemnification Agreement.
Further, Indemnitee agrees to cooperate with the Corporation concerning
such Proceeding.
IN WITNESS WHEREOF, the undersigned has set his hand this _______ day
of ________, 200__.
INDEMNITEE
__________________________
EXHIBIT B
LIST OF OFFICERS AND DIRECTORS WHO WILL GET AGREEMENTS
XXXXXX XXXXXXX
XXXXXX XXXXXX
XXXXX XXXXXX
XXXXX XXXXXXX
XXXX XXXXX
XXXXX XXXXXX
XXXXXX XXXXXX
XXXXXX XXXXXXXXX
XXXX XXXXXXXXXX
XXXXXX X. XXXXXXXXX
XXXXXX X'XXXXXXXX
XXXXXX XXXXXXXXX
XXXXX XXXXXX
XXXXXX XXXXXX
XXXXXX XxXXXXXXX
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CRANE CO. GUARANTEE
Subject to the occurrence of the Effective Time (as defined in the
Indemnification Agreement to which this Guaranty is attached (the
"Indemnification Agreement")), from and after the Effective Time, Crane Co., a
Delaware corporation, hereby guarantees the obligations of the Surviving
Corporation (as defined in the Indemnification Agreement) under the
Indemnification Agreement, subject, in all cases, to the terms, provisions and
limitations (including Sections 8 and 9) of the Indemnification Agreement. By
way of clarification and amplification, the aggregate liability of Crane Co. and
the Surviving Corporation to Indemnitee under the Indemnification Agreement and
all other indemnitees listed on Exhibit B to such Agreement shall be $10,000,000
(other than any liability under Section 7 of the Indemnification Agreement and
except as set forth in Section 6 of the Indemnification Agreement).
Intending to be legally bound hereby, Crane Co. has executed this
Guarantee by its duly authorized officer on this 16th day of April 2003.
CRANE CO.
By:_________________________________
Name:_______________________________
Title:______________________________
