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EXHIBIT 10.4
TASER INTERNATIONAL, INC.
AGREEMENT CONCERNING INDEMNIFICATION AND RELATED MATTERS
(DIRECTORS)
This Agreement is made as of __________________, 2001, by and
between TASER International, Inc., a Delaware corporation (the "Corporation"),
and ____________________ (the "Director"), a director of the Corporation.
WHEREAS, it is essential to the Corporation to retain and
attract as directors of the Corporation the most capable persons available and
persons who have significant experience in business, corporate and financial
matters; and
WHEREAS, the Corporation has identified the Director as a
person possessing the background and abilities desired by the Corporation and
desires the Director to serve as a director of the Corporation; and
WHEREAS, the substantial increase in corporate litigation may,
from time to time, subject corporate directors to burdensome litigation, the
risks of which frequently far outweigh the advantages of serving in such
capacity; and
WHEREAS, in recent times the cost of liability insurance has
increased and the availability of such insurance is, from time-to-time, severely
limited; and
WHEREAS, the Corporation and the Director recognize that
serving as a director of a corporation at times calls for subjective evaluations
and judgments upon which reasonable persons may differ and that, in that
context, it is anticipated and expected that directors of corporations will and
do from time to time commit actual or alleged errors or omissions in the good
faith exercise of their corporate duties and responsibilities; and
WHEREAS, it is the express policy of the Corporation to
indemnify its directors to the fullest extent permitted by law; and
WHEREAS, the Certificate of Incorporation permits, and the
Bylaws of the Corporation require, indemnification of the directors of the
Corporation to the fullest extent permitted by law, including but not limited to
the General Corporation law of Delaware (the "DGCL"), and the DGCL expressly
provides that the indemnification provisions set forth therein are not
exclusive, and thereby contemplates that contracts may be entered into between
the Corporation and its directors with respect to indemnification; and
WHEREAS, the Corporation and the Director desire to articulate
clearly in contractual form their respective rights and obligations with regard
to the Director's service on behalf of the Corporation as a director and with
regard to claims for loss, liability, expense or damage which, directly or
indirectly, may arise out of or relate to such service.
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NOW THEREFORE, the Corporation and the Director agree as follows:
1. Agreement to Serve.
The Director shall serve as a director of the Corporation for
so long as the Director is duly elected or until the Director tenders a
resignation in writing. This Agreement creates no obligation on either party to
continue the service of the Director for a particular term or any term.
2. Definitions.
As used in this Agreement:
(a) The term "Proceeding" shall include any threatened,
pending or completed action, suit or proceeding, whether formal or informal,
whether brought by or in the right of the Corporation or otherwise, and whether
of a civil, criminal, administrative or investigative nature, in which the
Director may be or may have been involved as a party, witness or otherwise, by
reason of the fact that the Director is or was a director of the Corporation, or
is or was serving at the request of the Corporation as a director, officer,
partner, trustee, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, whether or not serving in such capacity at
the time any liability or expense is incurred for which exculpation,
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,
attorney, accountant and other professional fees and disbursements and any
expenses of establishing a right to indemnification under Section 12 of this
Agreement, but shall not include amounts paid in settlement by the Director or
the amount of judgments or fines against the Director.
(c) References to "other enterprise" include, without
limitation, employee benefit plans; references to "fines" include, without
limitation, any excise taxes assessed on a person with respect to any employee
benefit plan; references to "serving at the request of the Corporation" include,
without limitation, any service as a director, officer, employee or agent which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants, or its
beneficiaries; and a person who acted in good faith and in a manner such person
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.
(d) References to the "Corporation" shall include, in addition
to the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer or employee of such constituent corporation,
or is or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position
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under this Agreement with respect to the resulting or surviving corporation as
such person would have with respect to such constituent corporation if its
separate existence had continued.
(e) For purposes of this Agreement, the meaning of the phrase
"to the fullest extent permitted by law" shall include, but not be limited to:
(i) to the fullest extent authorized or permitted by
any amendments to or replacements of the DGCL adopted after
the date of this Agreement that increase the extent to which a
corporation may indemnify or exculpate its officers or
directors; and
(ii) to the fullest extent permitted by the provision
of the DGCL that authorizes or contemplates additional
indemnification by agreement, or the corresponding provision
of any amendment to or replacement of the DGCL.
3. Limitation of Liability.
(a) To the fullest extent permitted by law, the Director shall
have no monetary liability of any kind or nature whatsoever in respect of the
Director's errors or omissions (or alleged errors or omissions) in serving the
Corporation or any of its subsidiaries, their respective stockholders or any
other enterprise at the request of the Corporation, so long as such errors or
omissions (or alleged errors or omissions), if any, are not shown by clear and
convincing evidence to have involved:
(i) any breach of the Director's duty of loyalty to
such corporations, stockholders or enterprises;
(ii) any act or omission not in good faith or which
involved intentional misconduct or a knowing violation of law;
(iii) any unlawful distribution under Section 174 of
the DGCL (including, without limitation, dividends, stock
repurchases and stock redemptions);
(iv) any transaction from which the Director derived
an improper personal benefit; or
(v) profits made from the purchase and sale by the
Director of securities of the Corporation within the meaning
of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provision of any state statutory law or
common law.
(b) Without limiting the generality of subparagraph (a) above
and to the fullest extent permitted by law, the Director shall have no personal
liability to the Corporation or any of its subsidiaries, their respective
stockholders or any other person claiming derivatively through the Corporation,
regardless of the theory or principle under which such liability may be
asserted, for:
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(i) punitive, exemplary or consequential damages;
(ii) treble or other damages computed based upon any
multiple of damages actually and directly proved to have been
sustained;
(iii) fees of attorneys, accountants, expert
witnesses or professional consultants; or
(iv) civil fines or penalties of any kind or nature
whatsoever.
4. Indemnity in Third-Party Proceedings.
To the fullest extent permitted by law, the Corporation shall
indemnify the Director in accordance with the provisions of this Section 4 if
the Director was or is a party to, or is threatened to be made a party to, any
Proceeding (other than a Proceeding by or in the right of the Corporation to
procure a judgment in its favor), against all Expenses, judgments, fines and
amounts paid in settlement, actually and reasonably incurred by the Director in
connection with such Proceeding if the Director acted in good faith and in a
manner the Director reasonably believed was in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, the Director, in addition, had no reasonable cause to believe that
the Director's conduct was unlawful. However, the Director shall not be entitled
to indemnification under this Section 4 in connection with any Proceeding
charging improper personal benefit to the Director in which the Director is
adjudged liable on the basis that personal benefit was improperly received by
the Director unless and only to the extent that the court conducting such
Proceeding or any other court of competent jurisdiction determines upon
application that, despite such adjudication of liability, the Director is fairly
and reasonably entitled to indemnification in view of all the relevant
circumstances of the case; or in connection with any Proceeding (or part
thereof) initiated by such person or any Proceeding by such person against the
Corporation or its directors, officers, employees or agents unless: (1) such
indemnification is expressly required to be made by law, (2) the Proceeding was
authorized by the Board of Directors, or (3) such indemnification is provided by
the Corporation, in its sole discretion, pursuant to the powers vested in the
Corporation under the DGCL.
5. Indemnity in Proceedings by or in the Right of the
Corporation.
To the fullest extent provided by law, the Corporation shall
indemnify the Director in accordance with the provisions of this Section 5 if
the Director was or is a party to, or is threatened to be made a party to, any
Proceeding by or in the right of the Corporation to procure a judgment in its
favor, against all Expenses actually and reasonably incurred by the Director in
connection with the defense or settlement of such Proceeding if the Director
acted in good faith and in a manner the Director reasonably believed was in or
not opposed to the best interests of the Corporation. However, the Director
shall not be entitled to indemnification under this Section 5 in connection with
any Proceeding in which the Director has been adjudged liable to the Corporation
unless and only to the extent that the court conducting such Proceeding or any
other court of competent jurisdiction determines upon application that, despite
such adjudication of liability, the Director is fairly and reasonably entitled
to indemnification for such Expenses in view of all the relevant circumstances
of the case; or in connection with any Proceeding (or part thereof) initiated
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by such person or any Proceeding by such person against the Corporation or its
directors, officers, employees or other agents unless (1) such indemnification
is expressly required to be made by law, (2) the Proceeding was authorized by
the Board of Directors, or (3) such indemnification is provided by the
Corporation, in its sole discretion, pursuant to the powers vested in the
Corporation under the DGCL.
6. Indemnification of Expenses of Successful Party.
Notwithstanding any other provisions of this Agreement other
than Section 9, to the extent that the Director 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,
the Corporation shall indemnify the Director against all Expenses actually and
reasonably incurred in connection therewith.
7. Good Faith.
(a) For purposes of any determination under this Agreement,
the Director shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or Proceeding, to have had
no reasonable cause to believe that his or her conduct was unlawful, if his or
her action is based on information, opinions, reports and statements, including
financial statements and other financial data, in each case prepared or
presented by:
(i) one or more directors or employees of the
Corporation whom the Director believed to be reliable and
competent in the matters presented;
(ii) counsel, independent accountants or other
persons as to matters which the Director believed to be within
such person's professional or expert competence; or
(iii) a committee of the Board of Directors upon
which such such Director does not serve, as to matters within
such committee's designated authority, which committee the
Director reasonably believes to merit confidence.
(b) The termination of any Proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the person did not act in good faith
and in a manner which he or she reasonably believed to be in or not opposed to
the best interests of the Corporation and, with respect to any criminal
proceeding, that he or she had reasonable cause to believe that his or her
conduct was unlawful.
(c) The provisions of this Section 7 shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth by the DGCL.
8. Exclusions.
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Notwithstanding any provision in this Agreement other than
Section 6, the Corporation shall not be obligated under this Agreement to make
any indemnification in connection with any claim made against the Director:
(a) for which payment is made to or required to be made to or
on behalf of the Director under any insurance policy, except with respect to any
deductible amount, self-insured retention or any excess amount to which the
Director is entitled under this Agreement beyond the amount of payment under
such insurance policy;
(b) if a court having jurisdiction in the matter finally
determines that such indemnification is not lawful under any applicable statute
or public policy;
(c) in connection with any Proceeding (or part of any
Proceeding) initiated by the Director, or any Proceeding by the Director against
the Corporation or its directors, officers, employees or other persons entitled
to be indemnified by the Corporation, unless:
(i) the Corporation is expressly required by law to
make the indemnification;
(ii) the Proceeding was authorized by the Board of
Directors of the Corporation; or
(iii) the Director initiated the Proceeding pursuant
to Section 12 of this Agreement and the Director is successful
in whole or in part in such Proceeding; or
(d) for an accounting of profits made from the purchase and
sale by the Director of securities of the Corporation within the meaning of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar
provision of any state statutory law or common law.
9. Advances of Expenses.
The Corporation shall pay the Expenses incurred by the
Director in any Proceeding (other than a Proceeding brought for an accounting of
profits made from the purchase and sale by the Director of securities of the
Corporation within the meaning of Section 16(b) of the Securities Exchange Act
of 1934, as amended, or similar provision of any state statutory law or common
law) in advance of the final disposition of the Proceeding at the written
request of the Director, if the Director:
(a) furnishes the Corporation a written affirmation of the
Director's good faith belief that the Director is entitled to be indemnified
under this Agreement; and
(b) furnishes the Corporation a written undertaking to repay
the advance to the extent that it is ultimately determined that the Director is
not entitled to be indemnified by the Corporation. Such undertaking shall be an
unlimited general obligation of the Director but need not be secured.
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Advances pursuant to this Section 9 shall be made no later
than 10 days after receipt by the Corporation of the affirmation and undertaking
described in subparagraphs (a) and (b) above, and shall be made without regard
to the Director's ability to repay the amount advanced and without regard to the
Director's ultimate entitlement to indemnification under this Agreement. The
Corporation may establish a trust, escrow account or other secured funding
source for the payment of advances made and to be made pursuant to this Section
9 or of other liability incurred by the Director in connection with any
Proceeding.
10. Nonexclusivity and Continuity of Rights.
The indemnification, advancement of Expenses, and exculpation
from liability provided by this Agreement shall not be deemed exclusive of any
other rights to which the Director may be entitled under any other agreement,
the Certificate of Incorporation, Bylaws, vote of stockholders or directors, the
Act, or otherwise, both as to action in the Director's official capacity and as
to action in another capacity while holding such office or occupying such
position. The indemnification under this Agreement shall continue as to the
Director even though the Director may have ceased to be a director of the
Corporation or a director, officer, employee or agent of an enterprise related
to the Corporation and shall inure to the benefit of the heirs, executors,
administrators and personal representatives of the Director.
11. Procedure Upon Application for Indemnification.
Any indemnification under Sections 4, 5 or 6 shall be made no
later than 45 days after receipt of the written request of the Director, unless
a determination that the Director is not entitled to indemnification under this
Agreement is made within such 45-day period by:
(a) the Board of Directors by majority vote of a quorum
consisting of directors not at the time parties to the applicable Proceeding;
(b) if such quorum cannot be obtained, majority vote of a
committee duly designated by the Board of Directors consisting solely of two or
more directors not at the time parties to the Proceeding;
(c) special legal counsel selected by the Board of Directors
or its committee in the manner prescribed in subparagraph (a) or (b) above or,
if a quorum of the Board of Directors cannot be obtained under subparagraph (a)
above and a committee cannot be designated under subparagraph (b) above, the
special legal counsel shall be selected by majority vote of the full Board of
Directors, including directors who are parties to the Proceeding; or
(d) the stockholders of the Corporation.
12. Enforcement.
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The Director may enforce any right to indemnification,
advances or exculpation provided by this Agreement in any court of competent
jurisdiction if:
(a) the Corporation denies the claim for indemnification,
advances or exculpation, in whole or in part; or
(b) the Corporation does not dispose of such claim within 45
days of request therefor.
It shall be a defense to any such enforcement action (other
than an action brought to enforce a claim for advancement of Expenses pursuant
to, and in compliance with, Section 9 of this Agreement) that the Director is
not entitled to indemnification or exculpation under this Agreement. However,
except as provided in Section 13 of this Agreement, the Corporation shall not
assert any defense to an action brought to enforce a claim for advancement of
Expenses pursuant to Section 9 of this Agreement if the Director has tendered to
the Corporation the affirmation and undertaking required thereunder. The burden
of proving by clear and convincing evidence that indemnification or exculpation
is 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 exculpation is proper in the circumstances because the
Director has met the applicable standard of conduct nor an actual determination
by the Corporation (including its Board of Directors or independent legal
counsel) that indemnification or exculpation is improper because the Director
has not met such applicable standard of conduct, shall be asserted as a defense
to the action or create a presumption that the Director is not entitled to
indemnification or exculpation under this Agreement or otherwise. The Director's
expenses incurred in connection with successfully establishing the Director's
right to indemnification, advances or exculpation, in whole or in part, in any
Proceeding shall also be paid or reimbursed by the Corporation.
13. Notification and Defense of Claim.
As a condition precedent to indemnification under this
Agreement, not later than 30 days after receipt by the Director of notice of the
commencement of any Proceeding the Director shall, if a claim in respect of the
Proceeding is to be made against the Corporation under this Agreement, notify
the Corporation in writing of the commencement of the Proceeding. The failure to
properly notify the Corporation shall not relieve the Corporation from any
liability which it may have to the Director: (a) unless the Corporation shall be
shown to have suffered actual damages as a result of such failure; or (b)
otherwise than under this Agreement. With respect to any Proceeding as to which
the Director so notifies the Corporation of the commencement:
(a) The Corporation shall be entitled to participate in the
Proceeding at its own expense.
(b) Except as otherwise provided in this Section 13, the
Corporation may, at its option and jointly with any other indemnifying party
similarly notified and electing to assume such defense, assume the defense of
the Proceeding, with legal counsel reasonably satisfactory to the Director. The
Director shall have the right to use separate legal counsel in the Proceeding,
but the
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Corporation shall not be liable to the Director under this Agreement, including
Section 9 above, for the fees and expenses of separate legal counsel incurred
after notice from the Corporation of its assumption of the defense, unless (i)
the Director reasonably concludes that there may be a conflict of interest
between the Corporation and the Director in the conduct of the defense of the
Proceeding, or (ii) the Corporation does not use legal counsel to assume the
defense of such Proceeding. The Corporation shall not be entitled to assume the
defense of any Proceeding brought by or on behalf of the Corporation or as to
which the Director has made the conclusion provided for in (i) above.
(c) If two or more persons who may be entitled to
indemnification from the Corporation, including the Director, are parties to any
Proceeding, the Corporation may require the Director to use the same legal
counsel as the other parties. The Director shall have the right to use separate
legal counsel in the Proceeding, but the Corporation shall not be liable to the
Director under this Agreement, including Section 9 above, for the fees and
expenses of separate legal counsel incurred after notice from the Corporation of
the requirement to use the same legal counsel as the other parties, unless the
Director reasonably concludes that there may be a conflict of interest between
the Director and any of the other parties required by the Corporation to be
represented by the same legal counsel.
(d) The Corporation shall not be liable to indemnify the
Director under this Agreement for any amounts paid in settlement of any
Proceeding effected without its written consent, which shall not be unreasonably
withheld. The Director shall permit the Corporation to settle any Proceeding
that the Corporation assumes the defense of, except that the Corporation shall
not settle any action or claim in any manner that would impose any penalty,
limitation, disqualification or disenfranchisement on the Director without the
Director's written consent.
14. Partial Indemnification.
If the Director is entitled under any provision of this
Agreement to indemnification by the Corporation for some or a portion of the
Expenses, judgments, fines or amounts paid in settlement, actually and
reasonably incurred by the Director in connection with such Proceeding, but not,
however, for the total amount thereof, the Corporation shall nevertheless
indemnify the Director for the portion of such Expenses, judgments, fines or
amounts paid in settlement to which the Director is entitled.
15. Interpretation and Scope of Agreement.
Nothing in this Agreement shall be interpreted to constitute a
contract of service for any particular period or pursuant to any particular
terms or conditions. The Corporation retains the right, in its discretion, to
terminate the service relationship of the Director, with or without cause, or to
alter the terms and conditions of the Director's service all without prejudice
to any rights of the Director which may have accrued or vested prior to such
action by the Corporation.
16. Severability.
If this Agreement or any portion thereof shall be invalidated
on any ground by any court of competent jurisdiction, the remainder of this
Agreement shall continue to be valid and the
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Corporation shall nevertheless indemnify the Director as to Expenses, judgments,
fines and amounts paid in settlement with respect to any Proceeding to the
fullest extent permitted by any applicable portion of this Agreement that shall
not have been invalidated.
17. Subrogation.
In the event of payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Director. The Director shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Corporation effectively to bring suit to enforce such rights.
18. Notices.
All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
upon delivery by hand to the party to whom the notice or other communication
shall have been directed, or on the third business day after the date on which
it is mailed by United States mail with first-class postage prepaid, addressed
as follows:
(a) If to the Director, to the address indicated on the
signature page of this Agreement.
(b) If to the Corporation, to: TASER International, Inc.
0000 Xxxx XxXxxxx Xxxxx, Xxxxx 0
Xxxxxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxxx X. Xxxxxx
Xxxxxx Xxxx LLP
1600 Pioneer Tower
000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
or to any other address as either party may designate to the other in writing.
19. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall constitute the original.
20. Applicable Law.
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware without regard to the
conflict of laws provisions thereof.
21. Successors and Assigns.
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This Agreement shall be binding upon the Corporation and its
successors and assigns.
22. Attorney Fees.
If any suit or action (including, without limitation, any
bankruptcy proceeding) is instituted to enforce or interpret any provision of
this Agreement, the prevailing party shall be entitled to recover from the party
not prevailing, in addition to other relief that may be provided by law, an
amount determined reasonable as attorney fees at trial and on any appeal of such
suit or action.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the date first written above.
TASER INTERNATIONAL, INC. DIRECTOR:
By:________________________________ Signature:__________________________
Title:_____________________________ Address:____________________________
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