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INDEMNITY AGREEMENT
This Agreement, by and between Twin Disc, Incorporated, a corporation
organized under the laws of the State of Wisconsin (the "Company"), and (Name),
an officer of the Company ("Indemnitee"), is dated as of (Date).
WHEREAS, the Company considers it to be in its best interests and the best
interests of its shareholders that Indemnitee serve the Company as an officer;
and
WHEREAS, the Company wishes to encourage Indemnitee to serve the Company
and, in connection therewith, to freely take and recommend such actions as
Indemnitee shall consider to be in the best interests of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Indemnification. Pursuant to the terms of this Agreement, the
Company shall indemnify and hold Indemnitee harmless, to the fullest extent
permitted by law, from and against any of the following which are actually
incurred by Indemnitee:
a. All reasonable costs and expenses, including attorney's fees, court
costs, interest, and disbursements ("Expenses"), incurred in the
investigation, settlement, defense, and/or appeal of any actual or
threatened proceeding, whether civil, criminal, or administrative, and
whether based on foreign, federal, state or local law, no matter by whom
brought ("Action"), to which Indemnitee is made or threatened to be made
a party, or otherwise involved in, by reason of at any time being an
officer of the Company or any subsidiary or affiliate thereof, or serving
any benefit plan of the Company, or serving, upon written request of the
Company pursuant to a resolution of its board of directors, any other
organization or entity.
b. All judgments, fines, penalties or amounts paid or awarded in
resolution of any Action, including any amounts paid in settlement of any
Action, and including excise taxes assessed with respect to any employee
benefit plan ("Liabilities").
2. Procedure for Indemnification.
a. Notice to Company. If any claim or Action is commenced against or
involving any Indemnitee or, to the knowledge of Indemnitee, threatened
to be commenced, Indemnitee shall promptly notify the Company thereof.
b. Approval of Indemnification. Upon the final disposition of an
Action, or of any part of an Action, to the extent that Indemnitee or,
if the Company assumed the defense pursuant to Paragraph 2c, the Company,
is successful on the merits in defending the Action or partial Action,
the Company shall, within sixty (60) days of a written request by
Indemnitee, itemizing the Expenses and providing reasonable documentation
thereof, reimburse Indemnitee for all Expenses and/or Liabilities.
"Success on the merits" shall be deemed to include any settlements of
claims for amounts which independent counsel advises the Company are
comparable to or less than the anticipated aggregate costs of defending
an Action based on such claim. To the extent that Indemnitee or, if the
Company assumed the defense, the Company, is not successful on the merits
or otherwise in defending the Action, Indemnitee shall be indemnified
against Expenses and/or Liabilities unless it is found that Indemnitee
breached or failed to perform a duty owed by Indemnitee to the Company and
that such breach or failure to perform constituted (i) a willful failure
to deal fairly with the Company or its shareholders in connection with a
matter in which Indemnitee had a material conflict of interest, (ii) a
violation of the criminal law, unless Indemnitee had reasonable cause to
believe that her conduct was lawful or had no reasonable cause to believe
her conduct was unlawful, (iii) a transaction from which Indemnitee
derived an improper personal benefit, or (iv) willful misconduct. Such
finding shall be made by one of the following, which may be designated by
Indemnitee: (i) a quorum of the Company's directors who are not at the
time parties to the Action, or if such a quorum cannot be obtained, by
majority vote of a committee duly appointed by the board of directors and
consisting solely of two (2) or more directors not at the time parties to
the Action; (ii) the Company's shareholders who are not at the time
parties to the Action; (iii) independent legal counsel, or (iv) a panel of
three (3) arbitrators, with one to be selected by Indemnitee, one to be
selected by the directors or committee members described in (i) hereof,
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and the third to be selected by the other two. It shall be presumed that
the Indemnitee has acted with the requisite intent and/or knowledge for
indemnification, and the burden of proving that Indemnitee did not shall
be on the Company.
c. Conduct of Defense. So long as there is no conflict of interest
between Indemnitee and the Company, the Company shall have the right to
assume the defense of any Action. In such an event, legal expenses paid
by the Company which are attributable to the defense of Indemnitee shall
be deemed to have been advanced to Indemnitee, and the Company shall be
entitled to the assurances of repayment provided in Paragraph 3 of this
Agreement.
d. Consent to Settlements. The Company shall not be liable pursuant to
this Agreement for Expenses incurred in connection with or as a result of
the settlement of an Action which is effected without its written consent.
3. Advancement of Expenses. The Company shall advance Expenses prior to
final resolution of an Action upon request and upon receipt of a written
statement by Indemnitee of her good faith belief that Indemnitee did not breach
or fail to perform her duties to the Company, and of adequate assurances by
Indemnitee that such Expenses will be repaid to the Company if it is determined
that Indemnitee was not entitled to indemnification pursuant to paragraph 2b of
this Agreement.
4. Expenses to Enforce. In the event that the Company fails to indemnify
Indemnitee pursuant to this Agreement, any expenses reasonably incurred by
Indemnitee in successfully enforcing this Agreement shall be reimbursed by the
Company.
5. Witness Expenses. Upon request, the Company shall pay or reimburse
any and all Expenses reasonably incurred by Indemnitee in connection with her
appearance as a witness in any Action involving the Company in which Indemnitee
has not been named or threatened to be named as a party.
6. Insurance. The Company may purchase and maintain insurance on behalf
of Indemnitee for any liability arising out of Indemnitee's status as an
officer of the Company or in any of the other capacities described in Paragraph
la, regardless of whether the Company would otherwise have the power to
indemnify Indemnitee against such liability. The Company will have no
obligation to Indemnitee pursuant to this Agreement for any sums for which
payment is actually made under any insurance policy, whether or not maintained
by the Company, except with respect to any excess beyond the amount of payment
under such insurance policy.
7. Non-exclusivity of Agreement. The indemnification provided by this
Agreement shall not be exclusive of any other rights to indemnification to
which Indemnitee may be entitled by law, other agreement, vote of shareholders
or directors, court order, or otherwise.
8. Other Indemnification. With respect to any Expenses and/or
Liabilities incurred in connection with or arising from Indemnitee serving at
the Company's request any other organization or entity, the indemnification
provided by this Agreement shall be deemed excess, rather than primary, and
Indemnitee must proceed to obtain all such indemnification provided by such
other organization, insurer or entity prior to enforcing this Agreement. Upon
request, Indemnitee shall provide the Company with copies of indemnification
agreements or with such other information as the Company may request about any
insurance or indemnification provided by such other entity, organization or
insurer.
9. Partial Invalidity. If this Agreement or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, the Company
shall nevertheless indemnify Indemnitee as to Expenses and Liabilities to the
full extent permitted by any applicable portion of this Agreement that shall
not have been invalidated.
10. Notice. Any notice required or permitted hereunder shall be sent to
the Company at:
Twin Disc Incorporated
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: ___________
and to Indemnitee at:
(Name)
Twin Disc, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
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11. Counterparts. This Agreement may be executed in any number of
counterparts, which together shall constitute an original.
12. Modification. This Agreement represents the complete understanding
of the parties with respect to its subject matter, and supersedes any prior
written or oral understandings, agreements, or communications. It may only be
modified by a writing signed by Indemnitee and the Company.
13. Assignment. This Agreement may not be assigned in whole or in part
by either party without the consent of the other. In any event, an assignment
shall not release the assignor from any liabilities hereunder.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin.
15. Consent to Jurisdiction. The Company and Indemnitee each irrevocably
consent to the jurisdiction of the courts of the State of Wisconsin for all
purposes in connection with any action or proceeding which arises out of or
relates to this Agreement, and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Wisconsin.
16. Successors. This Agreement shall inure to the benefit of the heirs
and personal representatives of Indemnitee, and shall be binding upon any
successor to the Company, including, without limitation, any successor by way
of merger or consolidation.
TWIN DISC, INCORPORATED
By____________________________
Its___________________________
______________________________
(Name)
