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EXHIBIT 10.11
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is made as of the __ day of ______, _____,
by and between K-TRON INTERNATIONAL, INC., a New Jersey corporation (the
"Corporation"), and the individual whose name appears on the signature page
hereof (such individual being referred to herein as the "Indemnified
Representative" and collectively with other individuals who may execute
substantially similar agreements as the "Indemnified Representatives"), with
reference to the following background:
A. The Indemnified Representative currently is serving in one or more
capacities as a director or officer of the Corporation or has been specifically
designated as a person whom the Corporation shall indemnify as hereinafter
provided (which may include any person serving at the request of the
Corporation as a director, officer, employee, agent, fiduciary or trustee of
another corporation, partnership, joint venture, trust, employee benefit plan
or other entity or enterprise) and as such is performing a valuable service to
or on behalf of the Corporation.
B. The Corporation has been unable to obtain at reasonable cost
directors' and officers' liability insurance to protect directors and officers
of the Corporation and its subsidiaries from certain liabilities or has in the
past experienced difficulty in obtaining such insurance. At the same time,
directors and officers of corporations in general are being increasingly
subjected to expensive and time consuming litigation, including matters that
traditionally would be brought only against the corporation. The Indemnified
Representative has indicated that the Indemnified Representative may not be
willing to remain in office or otherwise continue to serve the Corporation
absent the protections afforded by this Agreement.
C. To induce the Indemnified Representative to continue to serve the
Corporation and in consideration for such continued service, and to assist in
the recruitment of qualified personnel in the future, the Corporation agrees to
indemnify the Indemnified Representative upon the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, the
Corporation and the Indemnified Representative agree as follows:
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1. Agreement to Serve. The Indemnified Representative agrees to serve or
continue to serve in each Indemnified Capacity (as hereinafter defined in
Section 2(c) (i)) held now or in the future for so long as the Indemnified
Representative is duly elected or appointed or until such time as the
Indemnified Representative tenders a resignation in writing. This Agreement
shall not be deemed an employment contract between the Corporation or any of its
affiliates and any Indemnified Representative who is an employee of the
Corporation or any of its affiliates, and the Indemnified Representative
specifically acknowledges that the Indemnified Representative's employment with
the Corporation or any of its affiliates is at will and that the Indemnified
Representative may be discharged at any time for any reason, with or without
cause, and with or without severance compensation, except as may be otherwise
provided in a written employment contract between the Indemnified Representative
and the Corporation or any of its affiliates or other applicable formal
severance policies duly adopted by the board of directors of the Indemnified
Representative's employer.
2. Indemnification.
(a) Except as provided in Sections 2(b) and 3, the Corporation shall
indemnify the Indemnified Representative against any Liability (as hereinafter
defined in Section 2(c) (ii)) incurred by the Indemnified Representative in
connection with any Proceeding (as hereinafter defined in section 2(c) (iii)) in
which the Indemnified Representative may be involved as a party or otherwise, by
reason of the fact that the Indemnified Representative is or was serving in an
Indemnified Capacity, including, without limitation, any Liability resulting
from actual or alleged breach or neglect of duty, error, misstatement or
misleading statement, gross negligence, negligence or act giving rise to strict
or products liability, whether occurring prior to or after the date of this
Agreement. If the Indemnified Representative is entitled to indemnification in
respect of a portion, but not all, of any Liability, the Corporation shall
indemnify the Indemnified Representative to the maximum extent for such portion
of any Liability.
(b) Notwithstanding the provisions of subsection (a), the
Corporation shall not indemnify the Indemnified Representative under this
Agreement for any Liability incurred in a Proceeding initiated (which shall not
be deemed to include counter-claims or affirmative defenses) or participated in
as an
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intervenor or amicus curiae by the Indemnified Representative unless such
initiation of or participation in the Proceeding is authorized, either before or
after commencement of the Proceeding, by the affirmative vote of a majority of
the directors then in office. This subsection does not apply to reimbursement of
expenses incurred in successfully prosecuting or defending an arbitration under
Section 5(d) or otherwise successfully prosecuting or defending the rights
granted to the Indemnified Representative by or pursuant to this Agreement.
(c) As used in this Agreement:
(i) "Indemnified Capacity" means any and all past, present or future
service by an Indemnified Representative in one or more capacities (A) as a
director, officer, employee or agent of the Corporation, or of any
constituent corporation absorbed by the Corporation in a consolidation or
merger and designated by the Board of Directors of the Corporation, or, (B)
at the request of the Corporation, as a director, officer, employee, agent,
fiduciary or trustee of another corporation or of any partnership, joint
venture, employee benefit plan or other entity or enterprise.
(ii) "Liability" means any damage, judgment, amount paid in settlement,
fine, penalty, punitive damages, excise tax assessed with respect to any
employee benefit plan, or cost or expense of any nature (including, without
limitation, attorneys fees and disbursements); and
(iii) "Proceeding" means any threatened, pending or completed action,
suit, appeal, or other proceeding of any nature, whether civil, criminal,
arbitrative, administrative or investigative, whether formal or informal,
and whether brought by or in the right of the Corporation, a class of its
security holders or otherwise.
3. Exclusions.
(a) The Corporation shall not be liable under this Agreement to make
any payment in connection with any Liability incurred by the Indemnified
Representative:
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(i) to the extent payment for such Liability is made to the
Indemnified Representative under an insurance policy provided by the
Corporation;
(ii) to the extent the Indemnified Representative is indemnified for
such Liability by the Corporation under its certificate of incorporation or
by-laws or under the New Jersey Business Corporation Act or otherwise than
pursuant to this Agreement;
(iii) for any claim for an accounting of profits made either from the
purchase or sale by such Indemnified Representative of securities of the
Corporation pursuant to Section 16(b) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any corresponding superseding
provision, or from any use of material, non-public information, if such use
is illegal under applicable provisions of the Exchange Act or the
regulations thereunder;
(iv) for which the conduct of the Indemnified Representative has been
determined in a final adjudication pursuant to Section 5(d) or otherwise to
constitute breach of such person's duty of loyalty to the Corporation or
its shareholders, bad faith or knowing violation of law, or receipt by
such person of an improper personal benefit, and which conduct was
material to the cause of action or claim giving rise to the Liability; or
(v) to the extent such indemnification has been determined in a final
adjudication pursuant to Section 5(d) or otherwise to be unlawful.
(b) Any fact, act or omission pertaining to the Indemnified Representative
shall not be imputed to any other Indemnified Representative for the purposes
of determining the applicability of any exclusion set forth herein.
(c) The termination of a proceeding by judgement, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that
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the Indemnified Representative is not entitled to indemnification under this
Agreement.
4. ADVANCEMENT OF EXPENSES. The Corporation shall pay any Liability
incurred in good faith by the Indemnified Representative in advance of the final
disposition of a Proceeding upon receipt of an undertaking by or on behalf of
the Indemnified Representative to repay such amount if it shall ultimately
be determined pursuant to Section 5 (d) or otherwise that the Indemnified
Representative is not entitled to be indemnified by the Corporation pursuant to
this Agreement. The financial ability of the Indemnified Representative to
repay an advance shall not be a prerequisite to the making of such advance.
5. INDEMNIFICATION PROCEDURE.
(a) The Indemnified Representative shall use such Indemnified
Representative's best efforts to notify promptly the Secretary of the
Corporation of the commencement of any Proceeding or the occurrence of any
event which might give rise to a Liability under this Agreement, but the failure
so to notify the Corporation shall not relieve the Corporation of any liability
which it may have to the Indemnified Representative under this Agreement or
otherwise.
(b) The Corporation shall be entitled, upon notice to the Indemnified
Representative, to assume the defense of any Proceeding with counsel reasonably
satisfactory to the Indemnified Representative involved in such Proceeding or a
majority of the Indemnified Representatives involved in such Proceeding if
there be more than one. If the Corporation notifies the Indemnified
Representative, of its election to defend the Proceeding, the Corporation shall
have no liability for the expenses (including attorney's fees and
disbursements) of the Indemnified Representative incurred in connection with
the defense of such Proceeding subsequent to such notice, unless (i) such
expenses (including attorney's fees and disbursements) have been authorized by
the Corporation, (ii) the Corporation shall not in fact employed counsel
reasonably satisfactory to such Indemnified Representative or Indemnified
Representatives to assume the defense of such Proceeding, or (iii) it shall have
been determined pursuant to Section 5(d) that the Indemnified Representative
was entitled to indemnification for such expenses under this Agreement or
otherwise. Notwithstanding the
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foregoing, the Indemnified Representative may elect to retain counsel at the
Indemnified Representative's own cost and expense to participate in the defense
of such Proceeding.
(c) The Corporation shall not be required to obtain the consent of
the Indemnified Representative to the settlement of any Proceeding which the
Corporation has undertaken to defend if the Corporation assumes full and sole
responsibility for such settlement and the settlement grants the Indemnified
Representative an unqualified release in respect of all Liabilities at issue
in the Proceeding. The Corporation shall not be liable for any amount paid by
an Indemnified Representative in settlement of any Proceeding that is not
defended by the Corporation, unless the Corporation has consented to such
settlement (which consent shall not be unreasonably withheld).
(d) Any dispute related to the right to indemnification or
advancement of expenses hereunder, except with respect to indemnification for
liabilities arising under the Securities Act of 1933, as amended, which the
Corporation has undertaken to submit to a court for adjudication, shall be
decided only by arbitration in the City of Philadelphia, Pennsylvania (or such
other metropolitan area to which the Corporation's principal executive offices
may be relocated), in accordance with the commercial arbitration rules then in
effect of the American Arbitration Association, before a panel of three
arbitrators, one of whom shall be selected by the Corporation, the second of
whom shall be selected by the Indemnified Representative and the third of whom
shall be selected by the other two arbitrators. In the absence of the American
Arbitration Association, or if for any reason arbitration under the arbitration
rules of the American Arbitration Association cannot be initiated, or if one of
the parties fails or refuses to select an arbitrator, or if the arbitrators
selected by the Corporation and the Indemnified Representative cannot agree on
the selection of the third arbitrator within seven days after such time as the
Corporation and the Indemnified Representative have each been notified of the
selection of the other's arbitrator, the necessary arbitrator or arbitrators
shall be selected by the presiding judge of the court of general jurisdiction of
the State of New Jersey (or, if the Corporation's principal executive offices
have been relocated to another metropolitan area, then by the presiding judge of
the court of general jurisdiction for the county in which such offices have
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been relocated). Each arbitrator selected as provided herein is required to be
or have been a director or an executive officer of a corporation whose shares
of common stock were listed during at least one year of such service on the New
York Stock Exchange or the American Stock Exchange or quoted on the National
Association of Securities Dealers Automated Quotations System. The party or
parties challenging the right of an Indemnified Representative to the benefits
of this Agreement shall have the burden of proof. The Corporation shall
reimburse the Indemnified Representative for the expenses (including attorneys'
fees and disbursements) incurred in successfully prosecuting or defending such
arbitration. Any award entered by the arbitrators shall be final, binding and
nonappealable and judgment may be entered thereon by any party in accordance
with applicable law in any court of competent jurisdiction. This arbitration
provision shall be specifically enforceable.
(e) Upon a payment to the Indemnified Representative
under this Agreement, the Corporation shall be subrogated to the extent of such
payment to all of the rights of the Indemnified Representative to recover
against any person for such Liability, and the Indemnified Representative shall
execute all documents and instruments required by the Corporation and shall
take such other actions requested by the Corporation and at its expense as may
be necessary to secure such rights, including the execution of such documents
as may be necessary for the Corporation to bring suit to enforce such rights.
6. Non-Exclusively. The indemnification rights granted to the
Indemnified Representative pursuant to this Agreement (i) shall not be deemed
exclusive of any other rights to which the Indemnified Representative may be
entitled under any statute, by-law, certificate or articles of incorporation,
agreement, vote of shareholders or disinterested directors or otherwise, both
as to action in an Indemnified Capacity and in any other capacity, and (ii)
shall continue as to a person who has ceased to be an Indemnified
Representative in respect of matters arising prior to such time or involving
such person at a time when he or she was an Indemnified Representative. Without
limiting the generality of the foregoing, the Corporation and the Indemnified
Representative acknowledge the provisions of Article X of the Corporation's
By-laws and confirm that the Indemnified Representative is acting in reliance
thereon. Section 9 of Article X also provides that the indemnifications rights
granted
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by Article X shall not be deemed exclusive of any other rights to which the
Indemnified Representative may be otherwise entitled.
7. Discharge of Duty. The Indemnified Representative shall be deemed to
have discharged such person's duty to the Corporation if he or she has relied
in good faith on information, opinions, reports or statements, including
financial statements and other financial data, in each case prepared or
presented by any of the following;
(a) one or more officers or employees of the Corporation whom the
Indemnified Representative reasonably believes to be reliable and competent with
respect to the matter presented;
(b) legal counsel, public accountants or other persons as to matters
that the Indemnified Representative reasonably believes are within the person's
professional or expert competence; or
(c) a committee of the Board of Directors of the Corporation on which
he or she does not serve as to matters within its area of designated authority,
which committee he or she reasonably believes to merit confidence.
8. Reliance on Provisions. The Indemnified Representative shall be deemed
to be acting in such person's Indemnified Capacity in reliance upon the rights
of indemnification provided by this Agreement.
9. Severability and Reformation. Any provision of this Agreement which is
adjudicated to be invalid or unenforceable in any jurisdiction or under any
circumstance shall be ineffective to the extent of such invalidity or
unenforceability only and shall be deemed reformed so as to continue to apply
to the maximum extent and to provide the maximum indemnification permissible
under the applicable law of such jurisdiction. Any such adjudication shall not
invalidate or render unenforceable the remaining provisions hereof and shall not
invalidate or render unenforceable such provision in any other jurisdiction or
under any other circumstances.
10. Notices. Any notice, claim, request or demand required or permitted
hereunder shall be in writing and shall be deemed given if delivered personally
or sent by telegram or by
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registered or certified mail, postage prepaid: (i) if to the Corporation, to
Xxxxxx 00 & 000, XX Xxx 000, Xxxxxx, XX 00000-0000, or to such other address to
which the principal executive offices of the Corporation may be moved,
Attention: Secretary, or (ii) if to the Indemnified Representative, to the
address listed on the signature page hereof; or to such other address as any
party hereto shall have specified in a notice given in accordance with this
Section.
11. Amendments; Binding Effect. No amendment, modification, termination or
cancellation of this Agreement shall be effective as to the Indemnified
Representative unless signed in writing by the Corporation and the Indemnified
Representative. This Agreement shall be binding upon the Corporation and its
successors and assigns and shall inure to the benefit of the heirs, executors,
administrators and personal representatives of the Indemnified Representative.
12. Governing Law. This Agreement shall be governed by and interpreted and
enforced in accordance with the substantive laws of the State of New Jersey,
without reference to the principles governing the conflict of laws applicable in
that or any other jurisdiction.
13. Gender and Number. Words used herein, regardless of the gender or
number specifically used, shall be deemed to include any other gender,
masculine, feminine or neuter, and any other number, singular or plural, as the
context may require.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first set forth above.
K-TRON INTERNATIONAL, INC. INDEMNIFIED REPRESENTATIVE
By:_________________________ _____________________________(SEAL)
Title: Chairman and Chief Name:
Executive Officer
Address:
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Schedule 10.11
Indemnification Agreements
The following persons are parties to indemnification agreements with K-Tron
International, Inc.:
Xxxxxxx X. Xxxxxx
Xxx X. Xxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxx, XX
Xxxxxx Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Dr. Xxxxx Xxxxx
Xxxxx Xxxxxxxxxx
Xxxxxx Xxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Dr. Xxxx-Xxxx Xxxxxxxxx
Xxxx Head Xxxxx
Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxx
