EMS TECHNOLOGIES, INC. DIRECTOR’S INDEMNIFICATION AGREEMENT
Exhibit 10.22
EMS TECHNOLOGIES, INC.
DIRECTOR’S
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of __________, between EMS Technologies, Inc., a Georgia corporation
(“Corporation”), and ____________________ (“Director”).
WHEREAS, Director serves as a member of the Board of Directors of the Corporation and in such
capacity is expected to perform a valuable service; and
WHEREAS, the Corporation’s Bylaws (the “Bylaws”) provide for the indemnification of the directors
of the Corporation pursuant to Sections 14-2-850 through 14-2-856 of the Georgia Business
Corporation Code, as amended to date (the “State Statute”); and
WHEREAS, the Bylaws and State Statute specifically contemplate that contracts may be entered into
between the Corporation and the members of its Board of Directors with respect to indemnification
of such directors; and
WHEREAS, in accordance with the authorization provided by the State Statute and Bylaws, the
Corporation may from time to time purchase and maintain a policy of director and officer liability
insurance (“D & 0 Insurance”), covering certain liabilities that may be incurred by its directors
and officers in the performance of their duties to the Corporation; and
WHEREAS, the terms and availability of D & 0 Insurance present questions concerning the adequacy
and reliability of the protection afforded to directors thereby; and
WHEREAS, in order to provide to Director assurances with respect to the protection provided against
liabilities that he may incur in the performance of his duties to the Corporation, and to thereby
induce Director to serve as a member of its Board of Directors, the Corporation, by its Board of
Directors acting pursuant to shareholder authorization, has determined and agreed to enter into
this contract with Director.
NOW, THEREFORE, in consideration of Director’s continued service as a director from the date hereof
until such service terminates as provided in the Bylaws, the parties hereto agree as follows:
1. Maintenance of Insurance.
(a) Subject only to the provisions of Section 1(b) hereof, the Corporation hereby
agrees that, so long as Director shall continue to serve as a director of the Corporation,
and thereafter so long as Director 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 Director was a director of the Corporation (or while a director
served in any other capacities with or at the request of the Corporation), the Corporation
will purchase and maintain in effect for the benefit of Director
one or more valid, binding and enforceable policy or policies of D & 0 Insurance providing
coverage on terms and conditions that are
commercially reasonable and available from time to time.
(b) The Corporation shall not be required to maintain said policy or policies of D & 0
Insurance in effect if said insurance is not reasonably available or if, in the reasonable
business judgment of the Board of Directors, 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.
2. Board-Authorized Indemnification. The Corporation hereby agrees to hold harmless and indemnify
Director to the full extent that the State Statute, or any amendment thereof or other statutory
provision adopted after the date hereof, authorizes such indemnification by action of the Board of
Directors without shareholder approval. Such indemnification, and the conditions and limitations
thereon set forth in the State Statute, shall not in any respect limit, condition or otherwise
restrict the indemnification set forth in Section 3 hereof.
3. Shareholder-Authorized Indemnification. Subject only to the exclusions set forth in Section 4
hereof, and in addition to the indemnity specified in Section 2 hereof (but without duplication of
payments with respect to indemnified amounts), the Corporation hereby further agrees to hold
harmless and indemnify Director against any and all expenses (including attorney’s fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred by Director 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 Director is, was or at any time becomes a party, or is threatened to be made
a party, by reason of the fact that Director is or was a director of the Corporation, or while a
director was an officer, employee or agent of the Corporation or served at the request of the
Corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
4. Limitations on Shareholder-Authorized Indemnity. No indemnity pursuant to Section 3 hereof
shall be paid by the Corporation:
(a) With respect to any proceeding in which Director is adjudged, by final judgment not
subject to further appeal, liable to the Corporation or is subjected to injunctive relief
in favor of the Corporation:
(i) for any appropriation, in violation of his duties, of any business opportunity
of the Corporation;
(ii) for acts or omissions which involve intentional misconduct, fraud or a
knowing violation of law;
(iii) for the types of liabilities set forth in Section 14-2-832 of the Georgia
Business Corporation Code; or
(iv) for any transaction from which Director received an improper personal
benefit;
(b) With respect to any suit in which final judgment is rendered against Director for an
accounting of profits, made from the purchase or sale by Director of securities of the
Corporation, pursuant to the provisions of Section 16(b) of the Securities and Exchange Act
of 1934, as amended, or similar provisions of any federal, state or local statutory law, or
on account of any payment by Director to the Corporation in respect of any claim for such
an accounting; or
(c) If a final decision by a Court having jurisdiction in the matter shall determine that
such indemnification is not lawful.
5. Contribution. If the indemnification provided in Sections 2 and 3 is unavailable and may not be
paid to Director for any reason other than those set forth in paragraph (b) of Section 4, then in
respect of any threatened, pending or completed action, suit or proceeding in which the Corporation
is jointly liable with Director (or would be if joined in such action, suit or proceeding), the
Corporation shall contribute to the amount of expenses, judgments, fines and settlements paid or
payable by Director in such proportion as is appropriate to reflect (i) the relative benefits
received by the Corporation on the one hand and Director on the other hand from the transaction
from which such action, suit or proceeding arose, and (ii) the relative fault of the Corporation on
the one hand and of Director on the other in connection with the events which resulted in such
expenses, judgments, fines or settlement amounts, as well as any other relevant equitable
considerations. The relative fault of the Corporation on the one hand and of the Director on the
other shall be determined by reference to, among other things, the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent the circumstances resulting
in such expenses, judgments, fines or settlement amounts. The Corporation agrees that it would not
be just and equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation or any other method of allocation that does not take account of the foregoing equitable
considerations.
6. Continuation of Obligations. All agreements and obligations of the Corporation contained herein
shall continue during the period Director is a director of the Corporation, and shall continue
thereafter for so long as Director 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 Director was a director of the Corporation or, while a director, served in any other
capacity referred to herein.
7. Notification and Defense of Claim. Promptly after receipt by Director of notice of the
commencement of any action, suit or proceeding, Director will, if a claim in respect thereof is to
be made against the Corporation under this Agreement (other than under Section 2 hereof), notify
the Corporation of the commencement thereof, but the omission so to notify the Corporation will not
relieve it from any liability which it may have to Director otherwise than under this Agreement.
With respect to any such action, suit or proceeding as to which Director so notifies the
Corporation:
(a) The Corporation will be entitled to participate therein at its own expense; and
(b) Subject to Section 8 hereof, and if Director shall have provided his written
affirmation of his good faith belief that his conduct did not constitute behavior of the
kind described in paragraph 4(a) hereof, the Corporation may assume the defense thereof.
After notice from the Corporation to Director of its election so to assume such defense, the
Corporation will not be liable to Director under this Agreement for any legal or other expenses
subsequently incurred by Director in connection with the defense thereof, other than reasonable
costs of investigation or as otherwise provided below. Director shall have the right to employ his
separate counsel in such action, suit or proceeding, but the fees and expenses of such counsel
incurred after notice from the Corporation of its assumption of the defense thereof shall be at the
expense of Director unless (i) the employment of counsel by Director has been authorized by the
Corporation, (ii) counsel designated by the Corporation to conduct such defense shall not be
reasonably satisfactory to Director, or (iii) the 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 such
counsel shall be at the expense of the Corporation. For the purposes of clause (ii) above,
Director shall be entitled to determine that counsel designated by the Corporation is not
reasonably satisfactory if, among other reasons, Director shall have been advised by qualified
counsel that, because of actual or potential conflicts of interest in the matter between Director,
other officers or directors similarly indemnified by the Corporation, and/or the Corporation,
representation of Director by counsel designated by the Corporation is likely to materially and
adversely affect Director’s interest or would not be permissible under applicable canons of legal
ethics.
The Corporation shall not be liable to indemnify Director under this Agreement for any amounts
paid in settlement of any action or claim effected without its written consent. The Corporation
shall not settle any action or claim in any manner which would impose any penalty or limitation on
Director without Director’s written consent. Neither the Corporation nor Director will
unreasonably withhold their consent to any proposed settlement.
8. Advancement and Repayment of Expenses. Upon request thereof accompanied by reasonably itemized
evidence of expenses incurred, and by Director’s written affirmation of his good faith belief that
his conduct met the standard applicable to Board-authorized indemnification pursuant to Section 2
hereof, or did not constitute behavior of the kind described in paragraph 4(a) hereof, the
Corporation shall advance to Director the reasonable expenses (including attorneys’ fees and costs
of investigation) incurred by him in defending any civil or criminal suit, action or proceeding as
to which Director is entitled (assuming an applicable standard of conduct is met) to
indemnification pursuant to this Agreement. Director agrees to reimburse the Corporation for all
reasonable expenses paid by the Corporation, whether pursuant to this Section or Section 7 hereof,
in defending any action, suit or proceeding against Director in the event and to the extent that it
shall ultimately be determined that Director is not entitled to be indemnified by the Corporation
for such expenses under either Section 2 or Section 3 of this Agreement.
9. Enforcement.
(a) The Corporation expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on it hereby in order to induce Director to
serve as a director of
the Corporation, and acknowledges that Director will in the future be relying upon this
Agreement in continuing to serve in such capacity.
(b) In the event Director is required to bring any action to enforce rights or to collect
moneys due under this Agreement and is successful in such action, the Corporation shall
reimburse Director for all of Director’s reasonable fees and expenses in bringing and
pursuing such action.
10. 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 in whole or in part for any reason, such invalidity or unenforceability shall not
affect the validity or enforceability of the other provisions hereof.
11. Governing Law; Successors; Amendment and Termination
(a) This Agreement shall be interpreted and enforced in accordance with the laws of the
State of Georgia.
(b) This Agreement shall be binding upon Director and the Corporation, its successors and
assigns, and shall inure to the benefit of Director, his heirs, personal representatives
and assigns and to the benefit of the 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.
(d) This Agreement supersedes any prior agreement between Director and the Corporation, or
any predecessor of the Corporation, regarding the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
above written.
| EMS TECHNOLOGIES, INC. |
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| By: | |||||
| Director | Chairman of the Board | ||||
| Chief Executive Officer | |||||
