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EXHIBIT 10.2
INDEMNITY AGREEMENT - OFFICERS
This Agreement is made as of the _____ day of __________, by and
between Trans-Lux Corporation, a Delaware corporation (the "Corporation") and
__________________________________ ("Indemnitee"), an Officer ("Corporation") of
the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
Officers the most capable persons available, and
WHEREAS, the substantial increase in corporate litigation subjects
Officers to expensive litigation risks at the same time that the availability of
Officers' liability insurance may become severely limited, and
WHEREAS, it is now and has always been the express policy of the
Corporation to indemnify its Officers so as to provide them with the maximum
possible protection permitted by law, and
WHEREAS, Indemnitee may not be willing to serve as an Officer of the
Corporation without adequate protection, and the Corporation desires Indemnitee
to serve in such capacity, NOW THEREFORE:
W I T N E S S E T H:
Corporation and Indemnitee do hereby agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve as an Officer of
Corporation for so long as he is duly elected or appointed or until such time as
he tenders his resignation in writing.
2. Definitions. As used in this Agreement:
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(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit or proceeding, whether brought in the right of the
Corporation or otherwise and whether of a civil, criminal, administrative or
investigative nature, in which Indemnitee may be or may have been involved as a
party or otherwise, by reason of the fact that Indemnitee is or was an Officer
of the Corporation, by reason of any action taken by him or of any inaction on
his part while acting as such an Officer, or by reason of the fact that he is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, whether or not he is serving in such capacity at the time any
liability or expense is incurred for which indemnification or reimbursement can
be provided under this Agreement.
(b) The term "Expenses" includes, without limitation thereto, expenses
of investigations, judicial or administrative proceedings or appeals, amounts
paid in settlement by or on behalf of Indemnitee, amounts paid in satisfaction
of any judgments, fines, penalties, attorneys' fees and disbursements and any
expenses of establishing a right to indemnification under Paragraph 7 of this
Agreement.
(c) References to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any excise tax assessed with respect
to any employee benefit plan; references to "serving at the request of the
Corporation" shall include any service as a Director, Officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Agreement.
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3. Indemnity in Third Party Proceedings. The Corporation shall
indemnify Indemnitee in accordance with the provisions of this section if
Indemnitee is a party to or threatened to be made a party to or otherwise
involved in any Proceeding (other than a Proceeding by or in the right of the
Corporation to procure a judgment in its favor) by reason of the fact that
Indemnitee is or was an Officer of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise, against all
Expenses, judgments, fines and penalties, actually and reasonably incurred by
Indemnitee in connection with the defense or settlement of such Proceeding but
only if Indemnitee acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation and,
in the case of a criminal proceeding, in addition, had no reasonable cause to
believe that his conduct was unlawful. The termination of any such Proceeding by
judgment, order of court, settlement, conviction, or upon a plea of nolo
contendere, or its equivalent, shall not, of itself, create a presumption that
Indemnitee did not act in good faith in a manner which he reasonably believed to
be in the best interests of the Corporation, and with respect to any criminal
proceeding, that such person had reasonable cause to believe that his conduct
was unlawful.
4. Indemnity in Proceedings By or in the Right of the Corporation. The
Corporation shall indemnify Indemnitee in accordance with the provisions of this
Section if Indemnitee is a party to or threatened to be made a party to or
otherwise involved in any Proceeding by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that Indemnitee was or is
an Officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against all Expenses,
judgments, fines and penalties, actually and reasonably incurred
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by Indemnitee in connection with the defense or settlement of such Proceeding,
but only if Indemnitee acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation,
except that no indemnification for Expenses shall be made under this Paragraph 4
in respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Corporation unless and only to the extent that any
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 Indemnity for such
expenses as such court shall deem proper.
5. Indemnification of Expenses. Notwithstanding any other provisions of
this Agreement, to the extent that Indemnitee has been successful on the merits
or otherwise, in defense of any Proceeding or in defense of any claim, issue or
matter therein, including the dismissal of an action without prejudice,
Indemnitee shall be indemnified against all Expenses, judgments, fines and
penalties incurred in connection therewith.
6. Advances of Expenses. The Expenses incurred by Indemnitee pursuant
to Paragraphs 3 and 4 in any Proceeding shall be paid by the Corporation in
advance at the written request of the Indemnitee, if Indemnitee shall undertake
to repay such amount to the extent that it is ultimately determined that
Indemnitee is not entitled to indemnification for such expenses.
7. Right of Indemnitee to Indemnification Upon Application; Procedure
Upon Application. Any indemnification or advance under Paragraphs 3, 4 and/or 6
shall be made no later than 21 days after receipt of the written request of
Indemnitee, unless a determination is made within said 21 day period by (1) the
Board of Directors
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by a majority vote of a quorum consisting of directors who were not parties to
such proceeding, or (2) independent legal counsel in a written opinion (which
counsel shall be appointed if such a quorum is not obtainable), that the
Indemnitee has not met the relevant standards for indemnification set forth in
Paragraphs 3 and 4.
The right to indemnification or advances as provided by this Agreement
shall be enforceable by Indemnitee in any court of competent jurisdiction. The
burden of proving that indemnification or advances are not appropriate shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors or independent legal counsel) to have made a determination prior to
the commencement of such action that indemnification or advances are proper in
the circumstances because Indemnitee has met the applicable standard of conduct,
nor an actual determination by the Corporation (including its Board of Directors
or independent legal counsel) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that Indemnitee has not met the applicable standard of conduct. Indemnitee's
expenses incurred in connection with successfully establishing his right to
indemnification or advances, in whole or in part, in any such Proceeding shall
also be indemnified by the Corporation.
8. Indemnification Hereunder Not Exclusive. The indemnification
provided by this Agreement shall not be deemed exclusive of any other rights to
which Indemnitee may be entitled under the Certificate of Incorporation or the
By-Laws of the Corporation, any agreement, any vote of stockholders or
disinterested Directors of the Corporation, the General Corporation Law of the
State of Delaware, or otherwise, both as to action in his official capacity and
as to action in another capacity while holding such office. The indemnification
under this Agreement shall continue as to Indemnitee even though he may have
ceased to be a Director or Officer of Corporation and shall inure to the benefit
of the heirs and personal representatives of Indemnitee.
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9. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines or penalties actually and reasonably
incurred by him in the investigation, defense, appeal or settlement of any
Proceeding but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such Expenses, judgments,
fines or penalties to which Indemnitee is entitled.
10. Savings Clause. If this Agreement or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify Indemnitee as to Expenses, judgments,
fines and penalties with respect to any Proceeding to the full extent permitted
by any applicable portion of this Agreement that shall not have been invalidated
or by any other applicable law.
11. This Agreement does not supersede, modify or amend in any respect
any existing agreement between the Corporation and/or Corporation and Indemnitee
including but not limited to any existing employment agreement.
12. Notice. Indemnitee shall as a condition precedent to his right to
be indemnified under this Agreement, give to the Corporation notice in writing
as soon as practicable of any claim made against him for which indemnity is
sought under this Agreement. Notice to the Corporation shall be directed to
Trans-Lux Corporation, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000-0000 Attention:
Chairman of the Board (or such other address as the Corporation shall designate
in writing to Indemnitee). Notice shall be deemed received three days after the
date postmarked if sent by prepaid mail, properly addressed. In addition,
Indemnitee shall give the Corporation such
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information and cooperation as it may reasonably require and as shall be within
Indemnitee's power.
13. Counterpart. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
14. Applicable Law. This Agreement shall be governed by and construed
in accordance with Delaware law.
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15. Successors and Assigns. This Agreement shall be binding upon the
Corporation and its successors and assigns.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
duly executed and signed as of the day and year first above written.
TRANS-LUX CORPORATION
By:___________________________
___________________________
(INDEMNITEE)
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