Attachment E
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of the 23rd day of February, 1998 between C-COR
ELECTRONICS, INC., a Pennsylvania corporation ("Corporation") and Xxxx X.
Xxxxxxxxx with an address at Middlebury, Connecticut ("Officer").
WITNESSETH:
WHEREAS, Officer is an officer of Corporation and in such capacity is
performing a valuable service for Corporation; and
WHEREAS, the stockholders of Corporation have adopted Bylaws (the "Bylaws")
providing for the indemnification of the officers and directors of Corporation
to the fullest extent now or hereafter permitted by law ("the "Law"); and
WHEREAS, the Bylaws and the Law provide specifically that they are not
exclusive, and thereby contemplate that contracts may be entered into between
Corporation and its officers with respect to indemnification of such officers;
and
WHEREAS, in accordance with the authorization provided by the Bylaws and
the Law, Corporation has purchased and presently maintains a policy or policies
of Directors' and Officers' Liability Insurance ("D&O Insurance"), covering
certain liabilities which may be incurred by its directors and officers in the
performance of their services for corporation; and
WHEREAS, recent developments with respect to the terms and availability of
D&O Insurance and with respect to the application, amendment and enforcement of
statutory and bylaw indemnification provisions generally have raised questions
concerning the adequacy and reliability of the protection afforded to officers
thereby; and
WHEREAS, in order to resolve such questions and thereby induce officer to
continue to serve as an officer of Corporation, Corporation has determined and
agreed to enter into this contract with officer.
NOW, THEREFORE, in consideration of Officer's continued service as an
officer after the date hereof, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Indemnity of Officer. Corporation hereby agrees to hold harmless and
indemnify Officer to the full extent authorized or permitted by the provisions
of the Law, or by any amendment thereof or other statutory provisions
authorizing or permitting such indemnification which is adopted after the date
hereof.
2. Maintenance of Insurance and Self-Insurance.
(a) Corporation represents that it presently has in force and effect
policies of, D&O Insurance in insurance companies and amounts as follows (the
"Insurance Policies"):
Insurer Amount Deductible
Gulf Insurance Company $10,000,000 $250,000 Insured Organization
Tamarack American $10,000,000 $250,000 Insured Organization
excess of
$10,000,000
Subject only to the provisions of Section 2(b) hereof, Corporation hereby
agrees that, so long as Officer shall continue to serve as an officer of
Corporation (or shall continue at the request of Corporation to serve as an
officer, director, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise) and thereafter so long as Officer shall be
subject to any possible claim or threatened, pending or completed action, suit
or proceeding, whether civil, criminal or investigative by reason of the fact
that Officer was an officer of Corporation (or served in any of said other
capacities), Corporation will purchase and maintain in effect for the benefit of
Officer one or more valid, binding and enforceable policy or policies of D&O
Insurance providing, in all respects, coverage at least comparable to that
presently provided pursuant to the Insurance Policies.
(b) Corporation shall not be required to maintain said policy or policies
of D&O Insurance in effect if said insurance is not reasonably available or if,
in the reasonable business judgment of the then directors of Corporation, either
(i) the premium cost for such insurance is substantially disproportionate to the
amount of coverage, or (ii) the coverage provided by such insurance is so
limited by exclusions that there is insufficient benefit from such insurance.
(c) In the event Corporation does not purchase and maintain in effect said
policy or policies of D&O Insurance pursuant to the provisions of Section 2(b)
hereof, Corporation agrees to hold harmless and indemnify Officer to the full
extent of the coverage which would otherwise have been provided for the benefit
of officer pursuant to the Insurance Policies.
3. Additional Indemnity. Subject only to the exclusions set forth in
Section 4 hereof, Corporation hereby further agrees to hold harmless and
indemnify Officer:
(a) Against any and all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by Officer
in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (including
an action by or in the right of the Corporation) to which Officer is, was or at
any time becomes a party, or is threatened to be made a party, by reason of the
fact that Officer is, was or at any time becomes an officer, director, employee
or agent of Corporation, or is or was serving or at any time serves at the
request of Corporation as an officer, director, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise; and
(b) Otherwise to the fullest extent as may be provided to Officer by
Corporation under the non-exclusivity provisions of Section 7-1 of the Bylaws of
Corporation and the Law.
4. Limitations on Additional Indemnity,. No indemnity pursuant to section 3
hereof shall be paid by Corporation:
a) Except to the extent the aggregate of losses to be indemnified
thereunder exceeds the sum of $1,000 plus the amount of such losses for which
Officer is indemnified either pursuant to Sections 1 or 2 hereof or pursuant to
any D&O Insurance purchased and maintained by the Corporation;
(b) In respect to remuneration paid to Officer if it shall be determined by
a final judgment or other final adjudication that such remuneration was in
violation of Law;
(c) On account of any suit in which judgment is rendered against Officer
for an accounting of profits made from the purchase or sale by Officer of
securities of Corporation pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or similar provisions of
any federal, state or local statutory law;
(d) On account of Officer's conduct which is finally adjudged by a court of
competent jurisdiction to have been knowingly fraudulent or deliberately
dishonest or to have constituted willful misconduct or recklessness; and
(e) If a final decision by a court of competent jurisdiction shall
determine that such indemnification is not lawful.
5. Continuation of Indemnity. All agreements and obligations of Corporation
contained herein shall continue during the period Officer is an officer,
director, employee or agent of Corporation (or is or was serving at the request
of Corporation as an officer, director, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise) and shall
continue thereafter so long as Officer shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether, civil,
criminal or investigative, by reason of the fact that Officer was an officer of
Corporation or serving in any other capacity referred to herein.
6. Notification and Defense of Claim. Promptly after receipt by Officer of
notice of the commencement of any action, suit or proceeding, Officer will, if a
claim in respect thereof is to be made against Corporation under this Agreement,
notify Corporation of the commencement thereof; but the omission so to notify
Corporation will not relieve it from any liability which it may have to Officer
otherwise than under this Agreement. With respect to any such action, suit or
proceeding as to which Officer notifies Corporation of the commencement thereof:
(a) Corporation will be entitled to participate therein at its own expense;
and
(b) Except as otherwise provided below, to the extent that it may wish,
Corporation jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel satisfactory to Officer.
After notice from Corporation to Officer of its election so to assume the
defense thereof, Corporation will not be liable to Officer under this Agreement
for any legal or other expenses subsequently incurred by Officer in connection
with the defense thereof other than reasonable costs of investigation or as
otherwise provided below. Officer shall have the right to employ its counsel in
such action, suit or proceeding but the fees and expenses of such counsel
incurred after notice from corporation of its assumption of the defense thereof
shall be at the expense of Officer unless (i) the employment of counsel by
officer has been authorized by Corporation, (ii) Officer shall have reasonably
concluded that there may be a conflict of interest between Corporation and
officer in the conduct of the defense of such action or, (iii) Corporation shall
not in fact have employed counsel to assume the defense of such action, in each
of which cases the fees and expenses of counsel shall be at the expense of
Corporation. Corporation shall not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of Corporation or as to which
Officer shall have made the conclusion provided for in (ii) above.
(c) Corporation shall not be liable to indemnify Officer under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. Corporation shall not settle any action or claim in
any manner which would impose any penalty or limitation on Officer without
Officer's written consent. Neither Corporation or Officer will unreasonably
withhold its or his consent to any proposed settlement.
7. Repayment of Expenses. Officer will reimburse Corporation for all
reasonable expenses paid by Corporation in defending any civil or criminal
action, suit or proceeding against Officer in the event and only to the extent
that it shall be ultimately determined that Officer is not entitled to be
indemnified by Corporation for such expenses under the provisions of the Law,
the Bylaws, this Agreement or otherwise.
8. Enforcement. (a) Corporation expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on Corporation
hereby in order to induce Officer to continue as an officer of Corporation, and
acknowledges that Officer is relying upon this Agreement in continuing in such
capacity.
(b) In the event Officer is required to bring any action to enforce rights
or to collect moneys due under this Agreement and is successful in such action,
Corporation shall reimburse Officer for all of Officer's reasonable fees and
expenses in bringing and pursuing such action.
9. Separability. Each of the provisions of this Agreement is a separate and
distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions hereof.
10. Governing Law; Binding Effect; Amendment and Termination. (a) This
Agreement shall be interpreted and enforced in accordance with the laws of the
Commonwealth of Pennsylvania.
(b) This Agreement shall be binding upon Officer and upon Corporation, its
successors and assigns, and shall inure to the benefit of Officer, his heirs,
personal representatives and assigns and to the benefit of Corporation, its
successors and assigns.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
C-COR ELECTRONICS, INC.
By: Xxxxx X. Xxxxxxxx
President and CEO
X. X. XXXXXXXXX
Employee
