Exhibit 10.2
INDEMNIFICATION AGREEMENT
This Agreement made and entered into
this day of
, (the
“Agreement”), by and between Watts Water
Technologies, Inc., a Delaware corporation (the
“Company,” which term shall include, where appropriate,
any Entity (as hereinafter defined) controlled directly or
indirectly by the Company) and
(the “Indemnitee”):
WHEREAS, it is essential to the
Company that it be able to retain and attract as directors and
officers the most capable persons available;
WHEREAS, increased corporate
litigation has subjected directors and officers to litigation risks
and expenses, and the limitations on the availability of directors
and officers liability insurance have made it increasingly
difficult for the Company to attract and retain such
persons;
WHEREAS, the Company’s
Certificate of Incorporation and By-laws (the “Certificate of
Incorporation” and “By-laws,” respectively)
require it to indemnify its directors and officers to the fullest
extent permitted by law and permit it to make other indemnification
arrangements and agreements;
WHEREAS, the Company desires to
provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification against
litigation risks and expenses (regardless, among other things, of
any amendment to or revocation of the Certificate of Incorporation
or By-laws or any change in the ownership of the Company or the
composition of its Board of Directors);
WHEREAS, the Company intends that
this Agreement provide Indemnitee with greater protection than that
which is provided by the Company’s Certificate of
Incorporation and By-laws; and
WHEREAS, Indemnitee is relying upon
the rights afforded under this Agreement in continuing as a
director or officer of the Company.
NOW, THEREFORE, in consideration of
the promises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
1.
Definitions
.
(a)
“Corporate Status”
describes the status of a person who is serving or has served
(i) as a director or officer of the Company, (ii) in any
capacity with respect to any employee benefit plan of the Company,
or (iii) as a director, partner, trustee, officer, employee,
or agent of any other Entity at the request of the Company.
For purposes of subsection (iii) of this Section 1(a), if
Indemnitee is serving or has served as a director, partner,
trustee, officer, employee or agent of a
Subsidiary, Indemnitee shall be
deemed to be serving at the request of the Company.
(b)
“Entity” shall mean any
corporation, partnership, limited liability company, joint venture,
trust, foundation, association, organization or other legal
entity.
(c)
“Expenses” shall mean
all fees, costs and expenses incurred by Indemnitee in connection
with any Proceeding (as defined below), including, without
limitation, attorneys’ fees, disbursements and retainers
(including, without limitation, any such fees, disbursements and
retainers incurred by Indemnitee pursuant to Sections 10 and
11(c) of this Agreement), fees and disbursements of expert
witnesses, private investigators and professional advisors
(including, without limitation, accountants and investment
bankers), court costs, transcript costs, fees of experts, travel
expenses, duplicating, printing and binding costs, telephone and
fax transmission charges, postage, delivery services, secretarial
services, and other disbursements and expenses.
(d)
“Indemnifiable
Expenses,” “Indemnifiable Liabilities” and
“Indemnifiable Amounts” shall have the meanings
ascribed to those terms in Section 3(a) below.
(e)
“Liabilities” shall mean
judgments, damages, liabilities, losses, penalties, excise taxes,
fines and amounts paid in settlement.
(f)
“Proceeding” shall mean
any threatened, pending or completed claim, action, suit,
arbitration, alternate dispute resolution process, investigation,
administrative hearing, appeal, or any other proceeding, whether
civil, criminal, administrative, arbitrative or investigative,
whether formal or informal, including a proceeding initiated by
Indemnitee pursuant to Section 10 of this Agreement to enforce
Indemnitee’s rights hereunder.
(g)
“Subsidiary” shall mean
any corporation, partnership, limited liability company, joint
venture, trust or other Entity of which the Company owns (either
directly or through or together with another Subsidiary of the
Company) either (i) a general partner, managing member or
other similar interest or (ii) (A) 50% or more of the
voting power of the voting capital equity interests of such
corporation, partnership, limited liability company, joint venture
or other Entity, or (B) 50% or more of the outstanding voting
capital stock or other voting equity interests of such corporation,
partnership, limited liability company, joint venture or other
Entity.
2.
Services of Indemnitee
. In consideration of the
Company’s covenants and commitments hereunder, Indemnitee
agrees to serve or continue to serve as a director and/or officer
of the Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any.
3.
Agreement to Indemnify
. The Company agrees to
indemnify Indemnitee as follows:
(a)
Proceedings Other Than By or In
the Right of the Company . Subject to the exceptions contained in
Section 4(a) below, if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding (other than an
action by or in the right of the Company) by reason of
Indemnitee’s Corporate Status, Indemnitee shall be
indemnified by the Company against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such Proceeding
(referred to herein as “Indemnifiable Expenses” and
“Indemnifiable Liabilities,” respectively, and
collectively as “Indemnifiable Amounts”).
(b)
Proceedings By or In the Right of
the Company .
Subject to the exceptions contained in Section 4(b) below, if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding by or in the right of the Company by reason of
Indemnitee’s Corporate Status, Indemnitee shall be
indemnified by the Company against all Indemnifiable
Expenses.
(c)
Conclusive Presumption Regarding
Standard of Care .
In making any determination required to be made under Delaware law
with respect to entitlement to indemnification hereunder, the
person, persons or entity making such determination shall presume
that Indemnitee is entitled to indemnification under this Agreement
if Indemnitee submitted a request therefor in accordance with
Section 5 of this Agreement, and the Company shall have the
burden of proof to overcome that presumption in connection with the
making by any person, persons or entity of any determination
contrary to that presumption.
4.
Exceptions to
Indemnification .
Indemnitee shall be entitled to indemnification under
Sections 3(a) and 3(b) above in all circumstances
other than with respect to any specific claim, issue or matter
involved in the Proceeding out of which Indemnitee’s claim
for indemnification has arisen, as follows:
(a)
Proceedings Other Than By or In
the Right of the Company . If indemnification is requested under
Section 3(a) and it has been finally adjudicated by a
court of competent jurisdiction that, in connection with such
specific claim, issue or matter, Indemnitee failed to act
(i) in good faith and (ii) in a manner
Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company, or, with
respect to any criminal Proceeding, Indemnitee had reasonable cause
to believe that Indemnitee’s conduct was unlawful, Indemnitee
shall not be entitled to payment of Indemnifiable Amounts
hereunder.
(b)
Proceedings By or In the Right of
the Company . If
indemnification is requested under
Section 3(b) and
(i) it has been finally
adjudicated by a court of competent jurisdiction that, in
connection with such specific claim, issue or matter, Indemnitee
failed to act (A) in good faith and (B) in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, Indemnitee shall not be entitled to
payment of Indemnifiable Expenses hereunder; or
(ii) it has been finally
adjudicated by a court of competent jurisdiction that Indemnitee is
liable to the Company with respect to such specific claim,
Indemnitee shall not be entitled to payment of Indemnifiable
Expenses hereunder with respect to such claim, issue or matter
unless the Court of Chancery or another court in which such
Proceeding was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification for such Indemnifiable Expenses which
such court shall deem proper; or
(iii) it has been finally
adjudicated by a court of competent jurisdiction that Indemnitee is
liable to the Company for an accounting of profits made from the
purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934, the rules and regulations
promulgated thereunder and amendments thereto or similar provisions
of any federal, state or local statutory law, Indemnitee shall not
be entitled to payment of Indemnifiable Expenses
hereunder.
(c)
Insurance Proceeds
. To the extent payment is
actually made to the Indemnitee under a valid and collectible
insurance policy in respect of Indemnifiable Amounts in connection
with such specific claim, issue or matter, Indemnitee shall not be
entitled to payment of Indemnifiable Amounts hereunder except in
respect of any excess beyond the amount of payment under such
insurance.
5.
Procedure for Payment of
Indemnifiable Amounts . Indemnitee shall submit to the Company a
written request specifying the Indemnifiable Amounts for which
Indemnitee seeks payment under Section 3 of this Agreement and
the basis for the claim. The Company shall pay such
Indemnifiable Amounts to Indemnitee within sixty (60) calendar days
of receipt of the request. At the request of the Company,
Indemnitee shall furnish such documentation and information as are
reasonably available to Indemnitee and necessary to establish that
Indemnitee is entitled to indemnification hereunder.
6.
Indemnification for Expenses of a
Party Who is Wholly or Partly Successful . Notwithstanding any other
provision of this Agreement, and without limiting any such
provision, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, Indemnitee shall be
indemnified against all Expenses reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less
than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee against all Expenses reasonably incurred
by Indemnitee or on Indemnitee’s behalf in connection with
each successfully resolved claim, issue or matter. For
purposes of this Agreement, the termination of any claim, issue or
matter in such a Proceeding by dismissal, with or without
prejudice, by reason of settlement, judgment, order or otherwise,
shall be deemed to be a successful result as to such claim, issue
or matter.
7.
Effect of Certain
Resolutions .
Neither the settlement or termination of any Proceeding nor the
failure of the Company to award in
