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EXHIBIT 10.36
Date
Name
Address
Address
Dear
In order to induce you to serve or continue to serve as an officer or
director of TransTechnology Corporation (the "Company"), a Delaware corporation,
or one of its subsidiaries, and in consideration of your so serving, the Company
hereby agrees to indemnify you according to the terms and conditions set forth
below:
1. Indemnification.
(a) The Company hereby agrees to indemnify you to the fullest
extent permitted by the law of the State of Delaware, as
amended from time to time ("Delaware Law"), in connection
with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of
the Company), to which you were or are a party or to which
you were or are threatened to be made a party by reason of
the fact that you were or are a director, member of any
committee of the board of directors, officer, employee or
agent of the Company, or were or are serving at the request
of the Company as a director, member of any committee of
the board of directors, officer, employee or agent of
another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, or by reason of
anything done or not done by you in any such capacity,
against any and all reasonable expenses (including fees and
expenses of counsel), judgments, fines and amounts paid in
settlement actually incurred by you in connection with the
investigation, defense, appeal or settlement of any such
action, suit or proceeding if you acted in good faith and
in a manner you reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause
to believe your conduct was unlawful.
(b) The Company hereby agrees to indemnify you to the fullest
extent permitted by Delaware Law in connection with any
threatened, pending or completed
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judgment in its favor to which you were or are a party or
to which you were or are threatened to be made a party by
reason of the fact that you were or are a director,
officer, employee or agent of the Company, or were or are
serving at the request of the Company as a director, member
of any committee of the board of directors, officer,
employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other
enterprise, or by reason of anything done or not done by
you in any such capacity, against any and all reasonable
expenses (including fees and expenses of counsel) and
amounts paid in settlement actually incurred by you in
connection with the investigation, defense, appeal or
settlement of any such action, suit or proceeding if you
acted in good faith and in a manner you reasonably believed
to be in or not opposed to the best interests of the
Company; provided, however, that no such indemnification
shall be made in respect of any claim, issue or matter as
to which you 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 such suit, action or
proceeding was brought shall determine upon application
that, despite the adjudication of liability but in view of
all the circumstances of the case, you are fairly and
reasonably entitled to indemnification for such amounts
which the Court of Chancery or such other court shall deem
proper.
(c) Notwithstanding any other provision of this agreement, to
the extent that you are, by reason of your status as a
director or officer of the Company, a witness in any
action, suit or proceeding, whether civil, criminal,
administrative or investigative, you shall be indemnified
against all expenses actually and reasonably incurred by
you or on your behalf in connection therewith.
(d) For purposes hereof, the termination of any action, suit or
proceeding by judgement, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that you did not act
in good faith and in a manner which you reasonably believed
to be in or not opposed to the best interests of the
Company, and with respect to any criminal action or
proceeding, that you had reasonable cause to believe your
conduct was unlawful.
(e) No indemnity pursuant to Section 1 shall be paid by the
Company on account of any suit in which judgment is
rendered against you, as an officer or director, for an
accounting of profits made from the purchase or sale by you
of securities of the Company pursuant to the provisions of
Section 16(b) of the Securities and Exchange Act of 1934
and amendments thereto or similar provisions of any
applicable federal, state or local law.
(f) Notwithstanding any other provision of this agreement, to
the extent that you are successful on the merits or
otherwise in the defense of any action, suit or proceeding
described in (a) or (b) of Section 1, or in the defense of
any
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claim, issue or matter therein, you shall be indemnified
against expenses (including fees and expenses of counsel)
reasonably incurred by you in connection therewith.
If you are entitled to indemnification under this agreement
to only a portion of the amounts actually incurred by you
in the investigation, defense, appeal or settlement of any
action, suit or proceeding but not for the total amount
thereof, the Company shall nevertheless indemnify you for
the portion thereof to which you are entitled.
(g) Notwithstanding anything else contained herein, (i) the
Company shall not be obligated to pay the fees and expenses
of any counsel or amounts paid in any settlement unless the
Company shall have previously approved such counsel or such
settlement, which approval shall not be unreasonably
withheld, and (ii) the Company shall not be obligated to
approve more than one counsel to represent you and all
other officers and directors entitled to indemnification
under agreements similar to this agreement in any single or
similar action, suit or proceeding in the same
jurisdiction, unless representation of all such officers or
directors by the same counsel would be inappropriate
because of actual or potential differing interests among
you and such officers and directors.
Any determination as to approval of counsel or of any
settlement shall be made by the Company within five days
following your written request for such approval. In
determining whether to approve any counsel, the Company
shall consider only the following factors: (i) the
reputation of such counsel for performing quality legal
work, (ii) the level of education and experience of such
counsel, (iii) the level of expertise of such counsel with
respect to the type of action, suit or proceeding involved,
and (iv) the existence of any conflict of interest that
such counsel may have in connection with such action, suit
or proceeding.
2. Method of Payment.
(a) Except as otherwise provided in (b) below, you shall, upon
making a written request to the Company accompanied by
supporting documentation as described below, be entitled to
receive promptly (but in no event more than 30 days after
the Company's receipt of such written request) from the
Company, and the Company agrees to pay to you, by check
payable in next day funds, the amount you are entitled to
receive from the Company pursuant to Section 1 (the
"Indemnified Amounts"). In making any such written request,
you shall submit to the Company a schedule setting forth in
reasonable detail the amount expended (or incurred and
expected to be expended) for each Indemnified Amount,
accompanied by a copy of the relevant bill, agreement or
other documentation.
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(b) In the event you are unsuccessful on the merits or
otherwise in the defense of any action, suit or proceeding
referred to in Section 1, you shall be similarly entitled
to receive promptly, but in no event more than 30 days
after the Company's receipt of such written request from
the Company, upon making a written request to the Company
accompanied by supporting documentation described above,
payment of Indemnified Amounts, unless a determination is
made within the 30 day period referred to above by (a) a
majority vote of directors of the Company who were not
parties to such action, suit or proceeding even though less
than a quorum, (b) a committee of such directors of the
Company, designated by a majority vote of such directors,
even though less than a quorum, or (c) independent legal
counsel (being an attorney or firm of attorneys who shall
not have otherwise performed services for the Company
within the last five years (other than with respect to
matters concerning your rights under this agreement or of
other indemnitees under similar indemnity agreements) in a
written opinion (which counsel shall be appointed if (a)
and (b) are not obtainable) that you have not met the
relevant standard for indemnification set forth in Section
1.
3. Advancement of Indemnified Amounts. Indemnified Amounts expended
by you or reasonably expected to be expended by you within three
months next succeeding a request by you as described below shall
be paid by the Company in advance of the final resolution of any
suit, action or proceeding (an "Advanced Amount") upon your
written request, which shall include a schedule setting forth in
reasonable detail the amount expended, or reasonably expected to
be expended within the next three months, by you for any
Indemnified Amount, accompanied by a copy of the relevant bill,
agreement or other documentation. You may make as many requests
for an Advanced Amount under this Section as you deem reasonably
necessary to cover Indemnified Amounts expended or reasonably
expected to be expended, provided that each request shall be at
least for the sum of $1,000.
You hereby agree to repay all Advanced Amounts to the Company by
check payable in next day funds promptly following the final
resolution of any action, suit or proceeding to which such
Advanced Amounts relate if it is determined that you are not
entitled to indemnification with respect thereto pursuant to
Section 1.
In the event that you are entitled to indemnification pursuant to
Section 1, you shall have the right to seek payment for the
portion of Indemnified Amounts which is in excess of Advanced
Amounts received by you (the "Unadvanced Indemnified Amounts") by
following the procedures set forth in Section 2; provided that the
schedule of Indemnified Amounts shall in addition set forth each
and every Advanced Amount received as of the date of such listing
in order to calculate the net Unadvanced Indemnified Amounts.
Alternatively, if you are entitled to indemnification pursuant to
Section 1 and the total of the Advanced Amounts theretofore
received by you exceeds the total amount of Indemnified Amounts,
you shall pay the amount of the difference to the Company by a
check payable in next day funds promptly upon the determination of
the amount of such excess.
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4. Enforcement of Rights Under this Agreement. The rights to
indemnification or advances pursuant to this agreement shall be
enforceable by you in any court of competent jurisdiction and your
expenses incurred in connection with successfully establishing
your right to indemnification or advances, in whole or in part, in
any such proceedings shall be paid by the Company. In any such
proceeding, the Company shall have the burden of proving by the
preponderance of the evidence that you are not entitled to
indemnification or advances hereunder. Neither the failure of the
Company (including its Board of Directors, independent legal
counsel or stockholders) to have made a determination that you are
entitled to indemnification or advances in the circumstances nor
an actual determination by the Company (including its Board of
Directors, independent legal counsel or stockholders) that you are
not so entitled shall be a defense to an action or create a
presumption that you are not so entitled.
5. Rights to Indemnification Not Exclusive; Subrogation Rights, Etc.
The indemnification rights hereunder shall not be deemed exclusive
of any other rights to which you may be entitled under any law,
agreement, provision of the certificate of incorporation or bylaws
of the Company, vote of stockholders or disinterested directors or
otherwise, both as to action in your official capacity and as to
action in another capacity while holding such office, and shall
continue as to you after you have ceased to be a director,
officer, employee or agent and shall inure to the benefit of your
heirs, executors and administrators.
In the event you shall receive payment from any insurance carrier
or from the plaintiff in any action, suit or proceeding against
you in respect of Indemnified Amounts after payments on account of
all or part of such Indemnified Amounts have been made by the
Company pursuant hereto, you shall reimburse to the Company the
amount, if any, by which the sum of such payment by such insurance
carrier or such plaintiff and payments by the Company to you
exceeds such Indemnified Amounts; provided that such portions, if
any, of any such insurance proceeds that are required to be
reimbursed to the insurance carrier under the terms of its
insurance policy shall not be deemed to be payments to you
hereunder. In addition, upon payment of Indemnified Amounts
hereunder, the Company shall be subrogated to your rights (to the
extent thereof) against any insurance carrier in respect of such
Indemnified Amounts (to the extent permitted under such insurance
policies). Such right of subrogation shall be terminated upon
receipt by the Company of the amount to be reimbursed by you
pursuant to the first sentence of this Section.
6. Successors; Binding Agreement. The Company shall require any
successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement in form and
substance reasonably satisfactory to you, expressly to assume and
agree to perform this agreement in the same manner and to the same
extent that the Company would be required to perform if no such
succession had taken place.
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This agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If you
should die while any amounts would still be payable to you
hereunder if you had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the
terms of this agreement to your devisee, legatee, or other
designee, or if there be no such designee, to your estate.
7. Notice. For the purposes of this agreement, notices and all other
communications provided for in this agreement shall be in writing
and shall be deemed to have been duly given when delivered or
mailed by United States registered mail, return receipt requested,
postage prepaid, as follows:
if to you:
if to the Company: TransTechnology Corporation
150 Allen Road
Liberty Corner, NJ 07938
Attention: Vice President, Secretary
and General Counsel
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
8. Miscellaneous. No provision of this agreement may be modified,
waived or discharged unless such waiver, modification or discharge
is agreed to in writing signed by you and either the Company's
Chairman of the Board, President or another officer of the Company
specifically designated by the Board of Directors. No waiver by
either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this
agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreement or
representations, verbal or otherwise, express or implied, with
respect to the subject matter hereof have been made by either
party which are not set forth expressly in this agreement. This
agreement shall be governed by and construed in accordance with
Delaware Law, without giving effect to the principles of conflicts
of laws thereof.
9. Severability. The invalidity or unenforceability of any provision
of this agreement shall not affect the validity or enforceability
of any other provision of this agreement, which shall remain in
full force and effect.
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10. Counterparts. This agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the same
instrument.
11. Modifications. No change in the Company's certificate of
incorporation or by laws or in the Delaware General Corporation
Law subsequent to the date of this agreement shall have the effect
of limiting or eliminating the indemnification available under
this agreement as to any act, omission or capacity for which this
agreement provides indemnification at the time of such act,
omission or capacity. To the extent that a change in the Delaware
General Corporation Law (whether by statute or judicial decision)
permits greater indemnification by agreement than would be
afforded currently under the Company's certificate of
incorporation, by laws and this agreement, it is the intent of the
parties hereto that you shall enjoy by this agreement the greater
benefits so afforded by such change. If any change in the Delaware
General Corporation Law diminishes the power of the Company to
indemnify you, such change, except to the extent otherwise
required by law to be applied to this agreement, shall have no
effect on this agreement or the parties' rights and obligations
hereunder.
If this letter correctly sets forth our agreement on the subject matter
hereof, kindly sign and return to the Secretary of the Company the enclosed copy
of this letter, which shall then constitute our agreement on this matter.
This agreement is entered into and is effective as of the date first
written above.
TRANSTECHNOLOGY CORPORATION
By:
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Name:
Title:
Agreed to and accepted this
day of , 2
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Name
