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EXHIBIT 10.2
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made on this _____ day of ______, 19___,
between HARBINGER CORPORATION, a Georgia corporation ("HC") and ("Indemnitee").
W I T N E S S E T H:
WHEREAS, Indemnitee is a member of the Board of Directors of HC and in
such capacity performs a valuable service for HC;
WHEREAS, HC's Bylaws (the "Bylaws") authorize HC to indemnify its officers
and directors in accordance with the Official Code of Georgia Annotated (the
"Statute");
WHEREAS, Section 14-2-856 of the Statute specifically provides that the
indemnification provided under the other sections of the Statute is not
exclusive of any other rights in respect to indemnification or otherwise to
which those seeking indemnification may be entitled under any resolution
approved or ratified by the Shareholders by a majority of the votes entitled to
be cast;
WHEREAS, the shareholders of HC have authorized HC to enter into contracts
with the members of the Board of Directors of HC with respect to the
indemnification of such directors; and
WHEREAS, in order to encourage Indemnitee to continue to serve as a member
of the Board of Directors of HC and to perform other designated services for HC
at its request, HC has determined and agreed to enter into this Agreement with
Indemnitee;
NOW, THEREFORE, in consideration of Indemnitee's continued service as a
director of HC and the performance of such other services as requested by HC,
the parties hereby agree as follows:
1. INDEMNITY OF INDEMNITEE. HC shall defend, hold harmless and indemnify
Indemnitee to the full extent permitted by the provisions of the Statute, as
currently in effect or as it may hereafter be amended, or by the provisions of
any other statute authorizing or permitting such indemnification, whether
currently in effect or hereafter adopted.
2. ADDITIONAL INDEMNITY. Subject to the provisions of Section 3 hereof, HC
shall defend, hold harmless and indemnify Indemnitee in the event Indemnitee
was, is, or is threatened to be made a named defendant or respondent, in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal (including any such action, suit or
proceeding brought by or in the right of HC), by reason of the fact that he is
or was a director of HC, or is or was serving at the request of HC as a director
of another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise, against any obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employment
benefit plan), expenses (including attorneys' fees), and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding. For purposes of this Section 2, Indemnitee shall be
considered to be serving an employee benefit plan at the request of HC if his
duties to HC also impose duties on, or otherwise involve services by, him to the
plan or to participants in or beneficiaries of the plan.
3. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to Section 2
hereof shall be paid by HC to the extent of any liabilities incurred in a
proceeding in which Indemnitee is adjudged liable to HC or is subjected to
injunctive relief in favor of HC:
(1) for any appropriation in violation of his duties, of any business
opportunity of HC;
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(2) for acts or omissions which involve intentional misconduct or a
knowing violation of law;
(3) for the types of liability set forth in O.C.G.A. ss.14-2-832; or
(4) for any transaction from which Indemnitee received any improper
personal benefit.
4. NOTIFICATION AND DEFENSE OF CLAIM.
(a) Promptly after receipt by Indemnitee of notice of the commencement
of any action, suit or proceeding, Indemnitee will, if a claim in respect
thereto is to be made against HC under this Agreement, notify HC of the
commencement thereof, but the failure to so notify HC will not relieve it from
any liability which it may have to Indemnitee otherwise under this Agreement.
With respect to any such action, suit or proceeding as to which Indemnitee so
notifies HC:
(i) HC will be entitled to participate therein at its own expense;
and
(ii) except as otherwise provided below, to the extent that it may
desire, HC may assume the defense thereof.
(b) After notice from HC to Indemnitee of its election to assume the
defense thereof, HC will not be liable to Indemnitee under this Agreement for
any legal or other expenses subsequently incurred by Indemnitee in connection
with the defense thereof other than reasonable costs of investigation or as
otherwise provided below. Indemnitee shall have the right to employ counsel of
his choosing in such action, suit or proceeding but the fees and expenses of
such counsel incurred after notice from HC of its assumption of the defense
thereof shall be at the expense of Indemnitee unless (i) the employment of
counsel by Indemnitee has been authorized in writing by HC, (ii) HC and
Indemnitee shall reasonably conclude that there may be a conflict of interest
between HC and Indemnitee in the conduct of the defense of such action, or (iii)
HC shall not in fact have employed counsel to assume the defense of such action,
in each of which cases the reasonable fees and expenses of Indemnitee's counsel
shall be paid by HC.
(c) HC shall not be liable to Indemnitee under this Agreement for any
amounts paid in settlement of any threatened or pending action, suit or
proceeding without its prior written consent. HC shall not settle any such
action, suit or proceeding in any manner which would impose any penalty or
limitation on Indemnitee without Indemnitee's prior written consent. Neither HC
nor Indemnitee will unreasonably withhold his or its consent to any proposed
settlement.
5. PREPAYMENT OF EXPENSES. Unless Indemnitee otherwise elects, expenses
incurred in defending any civil or criminal action, suit or proceeding shall be
paid by HC in advance of the final disposition of such action, suit or
proceeding upon receipt by HC of a written affirmation of Indemnitee's good
faith belief that his conduct does not constitute behavior of the kind described
in Section 3 of this Agreement and Indemnitee furnishes HC a written
undertaking, executed personally or on his behalf, to repay any advances if it
is ultimately determined that he is not entitled to be indemnified by HC under
this Agreement.
6. CONTINUATION OF INDEMNITY. All agreements and obligations of HC
contained in this Agreement shall continue during the period Indemnitee is a
member of the Board of Directors of HC and shall continue thereafter so long as
Indemnitee shall be subject to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, and whether formal or informal, by
reason of the fact that Indemnitee was an officer of HC, or is or was serving at
the request of HC as a director of another corporation, partnership, joint
venture, trust or other enterprise.
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7. RELIANCE. HC has entered into this Agreement in order to induce
Indemnitee to continue as a member of the Board of Directors of HC and
acknowledges that Indemnitee is relying upon this Agreement in continuing in
such capacity.
8. SEVERABILITY. 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.
9. GENERAL.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia.
(b) Neither this Agreement nor any rights or obligations hereunder
shall be assigned or transferred by Indemnitee.
(c) This Agreement shall be binding upon Indemnitee and upon HC, its
successors and assigns, including successors by merger or consolidation, and
shall inure to the benefit of Indemnitee, his heirs, personal representatives
and permitted assigns and to the benefit of HC, its successors and assigns.
(d) No amendment, modification or termination of this Agreement shall
be effective unless in writing signed by both parties hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
INDEMNITEE: HARBINGER CORPORATION
By: By:
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Name (Print): Title:
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Date: Date:
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