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EXHIBIT 10.16
INDEMNIFICATION AGREEMENT
AGREEMENT, made as of the 6th day of November, 1996 between PARADYNE
CORPORATION, a Delaware corporation (the "Corporation"), and the person
signing this agreement as "DESIGNEE" (the "Designee"), with an address as set
forth opposite his name.
WITNESSETH:
WHEREAS, the Corporation has asked the Designee to be available to
assist the Corporation or one or more other affiliated companies or entities in
an advisory capacity;
WHEREAS, the Designee is willing to serve in such capacity or
in similar or additional capacities including but not limited to the providing
product and marketing advice, interim management services and consulting and
the identification of potential candidates for employment for the Corporation
on the condition that the Corporation indemnify him for liability which he
might incur in such capacity or performing such services; and
WHEREAS, the Corporation is willing to extend to the Designee such
indemnification.
NOW, THEREFORE, the Corporation and the Designee hereby agree as
follows:
1. Indemnification Obligation. Except to the extent expressly
prohibited by applicable law, the Corporation shall promptly indemnify, defend,
protect and hold harmless Designee (or such person's executor, administrator or
personal representative being referred to hereafter as an "Indemnitee") if he,
she or it was or is made, or is threatened to be made, a party to any action or
proceeding, whether civil or criminal (including without limitation any action
brought by or in the right of the Corporation), or who is a subject of a
government investigation, by reason of: (A) the fact that at any time the
Designee (i) is or was a director, officer or agent of the Corporation or any
subsidiary or affiliate thereof, (ii) serves or served, at the request of the
Corporation, as a director or officer or agent of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
or (iii) provided services on behalf of the Corporation whether prior to or
subsequent to the date hereof; or (B) the hiring by the Corporation of any
candidate with whom Designee has had any communication or conversation whether
prior to or subsequent to the date hereof, against any and all liabilities,
losses, judgments, fines (including excise taxes assessed with respect to an
employee benefit plan pursuant to applicable law), amounts paid in settlement
and expenses (including attorneys' fees, reasonably incurred) in connection
with such action or proceeding, or any appeal therein, or government
investigation, except where a judgment or other final adjudication adverse to
such person establishes that with respect to (A) above: (a) the Designee's acts
were committed in bad faith or were the result of active and deliberate
dishonesty and were material to the cause of action so adjudicated, or (b) that
the Designee personally gained in fact a material financial advantage to which
the Designee not legally entitled resulting directly from the acts or with
respect to (B) above, Designee failed to act in good faith and in a manner
Designee reasonably believed to be in or not opposed to the best interests of
the Corporation.
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2. Advancement of Expenses. The Corporation shall advance or promptly
reimburse upon request of the Indemnitee all expenses, including attorneys'
fees, reasonably incurred by the Indemnitee in connection with any action,
proceeding or government investigation of the kind referred to in Section 1 in
advance of the final disposition thereof, subject to receipt of a written
undertaking by or on behalf of the Indemnitee to repay such amounts if such
person is ultimately found not to be entitled to indemnification under this
Agreement or otherwise or, where found not to be entitled to indemnification
under this Agreement or otherwise or, where indemnification is granted, to the
extent the expenses so advanced or reimbursed exceed the amount to which the
Indemnitee is ultimately determined to be entitled, provided that the Indemnitee
shall cooperate in good faith with any request of the Corporation that common
counsel be used by parties to any action, proceeding or government investigation
who are similarly situated unless to do so would be inappropriate because of
actual or potential differing interest between such parties.
3. Interpretation. An Indemnitee may elect to have the provisions of this
Agreement interpreted on the basis of the applicable law in effect either (i) at
the time of the occurrence of the event or events giving rise to the action,
proceeding or government investigation, to the extent permitted by law, or (ii)
at the time indemnification or advancement or reimbursement of expense is
provided or sought.
4. Sanctions for Nonpayment. If a request to be indemnified or for the
advancement or reimbursement of expenses pursuant to this Agreement or any other
obligation of the Corporation is not paid in full by the Corporation within 30
days after a written claim has been received by either the President or
Secretary of the Corporation therefor and the Indemnitee thereafter brings
suit against the Corporation to recover the unpaid amount of the claim, the
Corporation shall be obligated to pay the Indemnitee the expenses, including
reasonable attorneys' fees, of prosecuting such claim, if such claim is
successful in whole or in part. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in defending a
civil or criminal action or proceeding in advance of the final disposition
thereof where the required undertaking has been tendered to the Corporation)
that the Indemnitee has not met the standards of conduct which, under the terms
of this Agreement, require the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors or independent legal counsel) prior to the commencement of such action
to have made a determination that indemnification of the Indemnitee is proper in
the circumstances because the Designee has met the applicable standard of
conduct set forth in this Agreement, nor an actual determination by the
Corporation (including its Board of Directors or independent legal counsel) that
the Designee has not met such applicable standard of conduct, shall be a defense
to such action or create a presumption that the Designee has not met such
applicable standard of conduct.
5. Nonexclusivity. The indemnification or advancement or reimbursement of
expenses granted pursuant to or provided by the provisions of this Agreement
shall be in addition to and shall not be exclusive of any other rights to
indemnification and advancement or reimbursement of expenses to which such
person may otherwise be entitled by law, Certificate or Incorporation, By-Law,
insurance policy, contact or otherwise.
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6. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) "The Corporation" shall include any legal successor to the
Corporation, including any corporation or other entity which acquires all or
substantially all of the assets of the Corporation in one or more transactions.
(b) "Service" at the request of the Corporation shall include serving
any corporation, partnership, joint venture, trust, employee benefit plan or
other entity or enterprise by virtue of (i) designation by resolution of the
Board of Directors or Executive Committee of the Corporation or any subsidiary
or affiliate thereof, (ii) a request by any officer of the Corporation or any
subsidiary or affiliate thereof, whether or not in writing or (iii) election by
action of the Corporation or any subsidiary or affiliate thereof as a
shareholder, partner or other participant of or in such corporation,
partnership, joint venture, trust, employee benefit plan or other entity or
enterprise.
(c) "Subsidiary" shall include any corporation or other business
organization of which the Corporation owns 20% or more of the voting equity.
7. Invalidity. If any provision of this Agreement is determined to be
unenforceable in whole or in part, such provision shall be modified so as to
be enforceable, to the maximum extent allowed by law, and as so modified be
enforced to the fullest extent permissible, it being the intent of this
Agreement to provide indemnification to all persons eligible hereunder to
the fullest extent permitted under law.
8. No Waiver. The failure by either party at any time to require
performance or compliance by the other of any of its obligations or agreements
shall in no way affect the right to require such performance or compliance at
any time thereafter. The waiver by either party of a breach of any provision
hereof shall not be taken or held to be a waiver of any preceding or succeeding
breach of such provision or as a waiver of the provision itself. No waiver of
any kind shall be effective or binding, unless it is in writing and is signed
by the party against which such waiver is sought to be enforced.
9. Assignment. This Agreement and all rights hereunder are personal to
the parties hereto and may not be transferred or assigned without the consent
of the other party at any time.
10. Amendment. This Agreement may be amended, modified, superseded,
canceled, renewed or extended only by a written instrument executed by both of
the parties hereto.
11. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given when
delivered personally or mailed by certified mail, return receipt requested,
postage prepaid to the address of the applicable party as set forth below or as
may be changed by notice given in accordance with the provisions of this Section
11 except that a notice of change of address shall not be deemed to have been
duly given until actually received by the addressee.
12. Binding Nature. This Agreement shall be binding upon and inure to the
benefit of the personal representatives and successors of the respective parties
hereto.
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13. Headings. The headings contained in this Agreement are for reference
purposes only and shall in no way affect the meaning or interpretation of this
Agreement.
14. Governing Law. This Agreement and the rights and obligations of the
parties hereto shall be construed in accordance with the laws of the State of
Delaware without reference to choice-of-law rules.
15. If a dispute shall arise hereunder and litigation is commenced to
resolve such dispute the prevailing party shall be entitled to recover costs
and reasonable attorney fees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
PARADYNE CORPORATION
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
Address: 0000 000xx Xxx. X.
Xxxxx, XX 00000
Dated: November 6, 1996 Attn: Xxxxx Xxxxxxxx
DESIGNEE
By: /s/ X. X. XXXXXXXX
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Name: X. X. Xxxxxxxx
Title:
Address: 00000 Xxxx Xxxx Xxxx
Dated: November 7, 1996 Xxxxx, XX 00000
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