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Exhibit 10.2
The form of indemnification
agreements
entered into with each
director and
executive officer of
Company
INDEMNIFICATION
AGREEMENT
AGREEMENT, effective as of
between Crane Co., a Delaware corporation (the
“Company”), and
(Indemnitee”).
WHEREAS, both the Company and
Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors and officers of public
companies at a time when it has become increasingly difficult to
obtain adequate insurance coverage at reasonable costs;
WHEREAS, in recognition of
Indemnitee’s need for substantial protection against personal
liability in order to enhance Indemnitee’s continued service
to the Company in an effective manner, the Company wishes to
provide in this Agreement for the indemnification of and the
advancing of expenses to Indemnitee to the full extent (whether
partial or complete) permitted by law and as set forth in this
Agreement, and, to the extent insurance is maintained, for the
continued coverage of Indemnitee under the Company’s
directors’ and officers’ liability insurance policies,
regardless of any future change in the Certificate of
Incorporation, Bylaws, composition of the Board of Directors, or
structure of the Company;
NOW, THEREFORE, in
consideration of the premises and of Indemnitee’s service to
the Company, directly or indirectly, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. In the event Indemnitee
was, is, or becomes a party to or a witness or other participant
in, or is threatened to be made a party to or a witness or other
participant in, any threatened, pending or completed action, suit
or proceeding, or any inquiry or investigation, whether conducted
by the Company or any other party, that Indemnitee in good faith
believes might lead to any such action, suit or proceeding, whether
civil, criminal, administrative, investigative or otherwise
(“Claim”) by reason of (or arising in part out of) the
fact that Indemnitee is or was a director, officer, employee, agent
or fiduciary of the Company, or is or was serving at the request of
the Company as a director, officer, employee, trustee, agent or
fiduciary of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, or by reason of
anything done or not done by Indemnitee in any such capacity (an
“Indemnifiable Event”), the Company shall indemnify
Indemnitee to the full extent permitted by law (the determination
of which shall be made by the Reviewing Party referred to below) as
soon as practicable but in any event no later than thirty days
after written demand is presented to the Company, against any and
all expenses (including attorneys’ fees and all other costs,
expenses and obligations paid or incurred in connection with
investigating, preparing for and defending or participating in the
defense of (including on appeal) any Claim relating to any
Indemnifiable Event)
(collectively “Expenses”),
judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges paid or
payable in connection with or in respect of such judgments, fines,
penalties or amounts paid in settlement) of such Claim and, if so
requested by Indemnitee, the Company shall advance (within two
business days of such request) any and all such Expenses to
Indemnitee; provided, however, that (i) the foregoing
obligation of the Company shall not apply to a Claim that was
commenced by the Indemnitee without the prior approval of the Board
of Directors of the Company unless the Claim was commenced after a
Change in Control (as defined in Section 5 herein);
(ii) the foregoing obligation of the Company shall be subject
to the condition that an appropriate person or body (the
“Reviewing Party”) shall not have determined (in a
written opinion in any case in which the special, independent
counsel referred to in Section 4 hereof is involved) that
Indemnitee would not be permitted to be indemnified for such
Expenses under applicable law; and (iii) if, when and to the
extent that the Reviewing Party determines that Indemnitee would
not be permitted to be indemnified for such Expenses under
applicable law, the Company shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Company) for all
such amounts theretofore paid (unless Indemnitee has commenced
legal proceedings in a court of competent jurisdiction to secure a
determination that Indemnitee should be indemnified under
applicable law, in which event Indemnitee shall not be required to
so reimburse the Company until a final judicial determination
requiring such reimbursement is made with respect thereto as to
which all rights of appeal therefrom have been exhausted or lapsed)
and the Company shall not be obligated to indemnify or advance any
additional amounts to Indemnitee under this Agreement (unless there
has been a determination by a court of competent jurisdiction that
the Indemnitee would be permitted to be so indemnified or entitled
to such expense advances under applicable law).
2. If there has not been a
Change in Control of the Company (as hereinafter defined), the
Reviewing Party shall be (1) a quorum of the Board of
Directors consisting of directors who are not parties to the
action, suit or proceeding acting by majority vote, or (2) if
such a quorum is not obtainable, or, even if obtainable, a quorum
of disinterested directors so directs, independent legal counsel by
the use of a written opinion or (3) the stockholders. If there
has been a Change in Control of the Company, the Reviewing Party
shall be the special, independent counsel referred to in
Section 4 hereof.
3. If Indemnitee has not been
indemnified by the expiration of the foregoing thirty-day period or
received expense advances or if the Reviewing Party determines that
Indemnitee would not be permitted to be indemnified or be entitled
to receive expense advances within two days of the request therefor
in whole or in part under the applicable law, Indemnitee shall have
the right to commence litigation seeking from the court a finding
that Indemnitee is entitled to indemnification and expense advances
or enforcement of Indemnitee’s entitlement to indemnification
and expense advances or challenging any determination by the
Reviewing Party or any aspect thereof that Indemnitee is not
entitled
to be indemnified or receive expense
advances and the burden of proving that indemnification or
advancement of expenses is not appropriate shall be on the Company;
any determination by the Reviewing Party in favor of Indemnitee
shall be conclusive and binding on the Company, unless facts
supplied by Indemnitee which form the basis for the determination
are subsequently determined to have been materially incorrect at
the time supplied. Indemnitee agrees to bring any such litigation
in any court in the states of New York or Delaware having subject
matter jurisdiction thereof and in which venue is proper, and the
Company hereby consents to service of process and to appear in any
such proceeding.
4. The Company agrees that if
there is a Change in Control of the Company (as hereinafter
defined), then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and
expense advances under this Agreement or any other agreement or
Bylaws now or hereafter in effect relating to Claims for
Indemnifiable Events, the Company shall seek legal advice only from
special, independent counsel selected by Indemnitee who a majority
of the disinterested Directors approves (which approval shall not
be unreasonably withheld), and who has not otherwise performed
services for the Company or Indemnitee. Such counsel, among other
things, shall determine whether and to what extent Indemnitee is
permitted to be indemnified or is entitled to expense advances
under applicable law and shall render its written opinion to the
Company and Indemnitee to such effect. The Company agrees to pay
the reasonable fees of the special, independent counsel referred to
above and to fully indemnify 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 except for willful misconduct or gross
negligence.
5. For purposes of this
Agreement, (a) “Change in Control of the Company”
shall be deemed to have occurred if (i) any
“person” (as such term is used in Sections 13(d)(3) and
14(d) of the Securities Exchange Act of 1934, as amended), other
than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company, is or becomes the beneficial
owner (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 20% or more
of the combined voting power of the Company’s then
outstanding securities, or (ii) 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
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