EXHIBIT 10.24
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT, dated as of March 7, 1996, is made by and
between LogiMetrics, Inc., a Delaware corporation (the "Company"), and
____________ (the "Indemnitee"), an "Agent" (as hereinafter defined) of the
Company.
RECITALS
A. The Company recognizes that competent and experienced persons are
increasingly reluctant to serve as directors and officers of corporations unless
they are protected by comprehensive liability insurance or indemnification, or
both, due to increased exposure to litigation costs and risks resulting from
their service to such corporations, and due to the fact that the exposure
frequently bears no reasonable relationship to the compensation of such
directors and officers;
B. The statutes and judicial decisions regarding the duties of
directors and officers are often difficult to apply, ambiguous or conflicting,
and therefore fail to provide such directors and officers with adequate,
reliable knowledge of legal risks to which they are exposed or information
regarding the proper course of action to take;
C. The Company and Indemnitee recognize that plaintiffs often seek
damages in such large amounts and the costs of litigation may be so enormous
(whether or not the case is meritorious), that the defense and/or settlement of
such litigation is open beyond the personal resources of officers and directors;
D. The Company believes that it is unfair for its directors and
officers and those serving other entities at the request of the Company to
assume the risk of huge judgments and other expenses which may occur in cases in
which the director or officer received no personal profit and in cases where the
director or officer acted in good faith;
E. The Company, after reasonable investigation, has determined that
the liability insurance coverage presently available to the Company provides
only limited protection and may not continue to be available at acceptable
premium rates. The Company believes that the interests of the Company and its
stockholders would best be served by a combination of such insurance (to the
extent it remains reasonably available) and the indemnification by the Company
of the directors and of officers of the Company;
F. Section 145 of the General Corporation Law of Delaware
("Section 145"), under which the Company is organized, empowers the Company to
indemnify its officers, directors, employees and agents by agreement and to
indemnify persons who serve, at the request of the Company, as the directors,
officers, employees or agents of other corporations or enterprises, and
expressly provides that the indemnification provisions of Section 145 are not
exclusive;
G. The Board of Directors has determined that contractual
indemnification as set forth herein is not only reasonable and prudent but
necessary to promote the best interests of the Company and its stockholders;
H. The Company desires and has requested the Indemnitee to serve or
continue to serve the Company free from undue concern for claims for damages
arising out of or related to such services to the Company; and
I. The Indemnitee is willing to serve, or to continue to serve, the
Company, provided that he or she is furnished the indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Definitions
(a) Agent. For purposes of this Agreement, "Agent" of the Company
means any person (in all capacities in which such person is acting, has acted
and will act) who is or was a director, officer, employee, fiduciary or other
agent of the Company or who is or was serving at the request of the Company as a
director, officer, employee, fiduciary, or agent of another corporation,
partnership, joint venture, trust or other enterprise.
(b) Change in Control. For purposes of this Agreement, a "Change
in Control" shall be deemed to have occurred if (i) during any period of two
consecutive years after the date hereof, individuals who at the beginning of
such period constitute the board of directors of the Company and any new
director whose election by the board of directors or nomination for election by
the Company's stockholders was approved by a vote of a least two-thirds of the
directors then still in office who either were directors at the beginning of the
period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof or (ii) the stockholders of the Company
approve a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the Voting Securities
of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting Securities of
the surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation and dissolution of the Company or
an agreement for the sale or disposition by the Company of all or substantially
all the Company's assets; provided, however, that a would-be Change in Control
under (ii) herein which is approved and recommended in advance by the Company
board of directors shall not be deemed a Change in Control.
(c) Expenses. For purposes of this Agreement, "Expenses" includes
all direct and indirect costs of any type or nature whatsoever (including,
without limitation, attorneys' fees and related disbursements, other
out-of-pocket costs and compensation for time spent by the Indemnitee for which
he or she is not otherwise compensated by the Company or any third party),
incurred by the Indemnitee in connection with either (i) the investigation,
defense or appeal of or being a witness or otherwise participating in or
preparing for a Proceeding or (ii) the establishment or enforcement of
Indemnitee's right to indemnification under this Agreement, Section 145 or
otherwise, including judgments, fines and amounts paid in settlement by or on
behalf of Indemnitee
(d) Other Enterprise. For purposes of this Agreement, "other
enterprise" shall include employee benefit plans; references to "fines" shall
include any excise tax assessed with respect to any employee benefit plans, and
references to "serving at the request of the Company" shall include any service
as a director, officer, employee, fiduciary or agent of the Company which
imposes duties on, or involves services by, such director, officer, employee,
fiduciary or agent with respect to an employee benefit plan, its participants,
or beneficiaries.
(e) Proceedings. For the purposes of this Agreement, "Proceeding"
means any investigation or any threatened, pending or completed action, suit or
other proceeding, whether civil, criminal, administrative, investigative or any
other type whatsoever whether instituted by, or in the right of, the Company or
by any other person or entity to which an Agent was or is a party or a witness
or is otherwise involved or is threatened to
be made a party or a witness or to be otherwise involved by reason of the fact
that he or she is or was an Agent of the Company.
(f) Reviewing Party. For purposes of this Agreement, "Reviewing
Party" shall mean any appropriate person or body consisting of a member or
members of the Company's board of directors or any other person or body selected
hereunder (including Special Independent Counsel defined below) who is not a
party to the particular Proceeding for which Indemnitee is seeking
indemnification. If there has not been a Change in Control, the Reviewing Party
shall he selected by the Company's board of directors. If there has been such a
Change in Control, the Reviewing Party shall be Special Dependent Counsel.
(g) Special Independent Counsel. For purposes of this Agreement,
"Special Independent Counsel" shall mean counsel selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably withheld) and
who has not, unless waived by the Company and Indemnitee, otherwise performed
services for the Company or Indemnitee within the last ten (10) years. The
Company agrees to pay the reasonable fees of the Special Independent Counsel
referred to above and to fully indemnify such counsel against any and all
expenses (including attorneys' fees), claims, liabilities and damages arising
out of or relating to this Agreement or its engagement pursuant hereto.
(h) Voting Securities. For purposes of this Agreement, "Voting
Securities" shall mean any securities of the Company which vote generally in the
election of directors.
2. Agreement to Serve. The Indemnitee has served and agrees to
continue to serve as an Agent of the Company, at its will (or under separate
agreement, if such agreement exists), in all capacities Indemnitee currently
serves or will serve as an Agent of the Company, so long as he or she is duly
appointed or elected and qualified as such or until such time as he or she
tenders his or her resignation in writing; provided, however, that nothing
contained in this Agreement is intended to create any right to continued
employment of Indemnitee.
3. Basic Indemnity.
(a) The Company shall indemnify the Indemnitee if the Indemnitee
is or was a witness or a party to or is threatened to be made a party to or is
otherwise involved in any Proceeding brought by any person or entity to the
fullest extent permitted by law as soon as practicable but in any event no later
than fifteen (15) days after written demand is presented to the Company, against
any and all Expenses, judgments, fees, penalties
and amounts paid or owing in settlement (including all interest, assessments and
other charges paid or payable in connection with or in respect of such Expenses,
judgments, fines, penalties or amounts paid in settlement) of such Proceeding.
(b) Notwithstanding anything in this Agreement to the contrary,
(i) prior to a Change in Control, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with any Proceeding
(other than a claim for indemnification) initiated by Indemnitee against the
Company or any director or officer of the Company unless the Company has joined
in or consented to the initiation of such Proceeding, (ii) the obligations of
the Company under Section 3(a) shall be subject to the condition that the
Reviewing Party shall not have determined in a writing stating the reasons
therefor that Indemnitee would not be permitted to be indemnified under
applicable law, and (iii) the obligation of the Company to make an Expense
Advance pursuant to Section 6 shall be subject to the condition that, if, when
and to the extent that the Reviewing Party determines that Indemnitee would not
be permitted to be so indemnified under applicable law, the Company shall be
entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the
Company) for all such amounts theretofore paid, provided, however, that if
Indemnitee has commenced legal proceedings in a court of competent jurisdiction
to secure a determination that Indemnitee should be indemnified under applicable
law, any determination made by the Reviewing Party that Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for any Expense
Advance until a final judicial determination is made with respect thereto (as to
which all rights of appeal therefrom have been exhausted or lapsed).
(c) If the Reviewing Panty determines that Indemnitee would not
be permitted to be indemnified in whole or in part under applicable law (such
determination to be made by the Reviewing Party independent of any position of
the Company on any aspect of the indemnification including but not limited to
the appropriateness of the amount of any settlement), Indemnitee shall have the
right to commence litigation in any court, in the States of Delaware or New York
or the State(s) of Indemnitee's residence or employment, having subject matter
jurisdiction thereof, and in which venue is proper, seeking an initial
determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof, and the Company hereby consents to
service of process and to appear in any such proceeding. Any determination by
the Reviewing Party otherwise shall be conclusive and binding on the Company and
Indemnitee.
4. Indemnification at Option of the Company.
Notwithstanding any other provision of this Agreement, the Company may, in
specific cases, provide Indemnitee with full or partial indemnification if the
Board of Directors finds it appropriate and such indemnification is not then
prohibited by law.
5. Partial Indemnity, Etc. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, judgments, fines, penalties and amounts paid in
settlement of a Proceeding but not, however, for all of the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion
thereof to which Indemnitee is entitled. Moreover, notwithstanding any other
provision 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
issue or matter therein, including dismissal without prejudice, Indemnitee shall
be indemnified against all Expenses incurred in connection therewith. In
connection with any determination by the Reviewing Party as to whether
Indemnitee is entitled to be indemnified hereunder, the burden of proof shall be
on the Company to establish that Indemnitee is not so entitled.
6. Advancement of Expenses. The Company shall advance all Expenses
incurred by the Indemnitee in connection with the investigation, defense,
settlement or appeal of any Proceeding for which the Indemnitee is entitled to
indemnification hereunder (each an "Expense Advance"). Expense Advances to be
made hereunder shall be paid by the Company to or on behalf of the Indemnitee
within fifteen (15) days following delivery of a written demand therefor by the
Indemnitee to the Company.
7. Notice and Other Indemnification Procedures.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement, or the threat of commencement, of any Proceeding, the Indemnitee
shall, if the Indemnitee believes that indemnification with respect thereto may
be sought from the Company under this Agreement, notify the Company of the
commencement or threat of commencement thereof. The failure to so notify the
Company shall not affect the Company's obligation to indemnify the Indemnitee
otherwise than under this Agreement.
(b) The Company shall indemnify Indemnitee against any and all
expenses (including attorneys' fees) and, if requested by Indemnitee, shall
within fifteen (15) days of such request, advance such expenses to Indemnitee
which are incurred by Indemnitee in connection with any claim asserted against
or action brought by indemnity for (i) indemnification hereunder or advance
payment of Expenses by the Company under this Agreement
(or any other agreement or the Company's Certificate of Incorporation or By-Laws
now or hereafter in effect) relating to Proceedings and/or (ii) recovery under
any director and officer liability insurance policies maintained by the Company,
regardless of whether Indemnitee ultimately is determined to be entitled to such
indemnification, advance expense payment or insurance recovery, as the case may
be.
(c) For purposes of this Agreement, the termination of any claim,
action, suit or proceeding by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that Indemnitee did not meet any
particular standard of conduct or have any particular belief or that a court has
determined that indemnification is not permitted by applicable law.
8. Insurance. The Company may, but is not obligated to, obtain
directors' and officers' liability insurance ("D&O Insurances") as may be or
became available with respect to which the Indemnitee is named as an insured.
Notwithstanding any other provision of this Agreement, the Company shall not be
obligated to indemnify the Indemnitee for expenses, judgments, fines or
penalties which have been paid directly to the Indemnitee by D&O Insurance. If
the Company has D&O Insurance in effect at the time the Company receives from
the Indemnitee any notice of the commencement of a Proceeding, the Company shall
give prompt notice of the commencement of such Proceeding to the insurers in
accordance with the procedures set form in the policy. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of the Indemnitee, all amounts payable as a result of such Proceeding
in accordance with the terms of such policy.
9. Settlement. The Company shall have no obligation under this
Agreement to indemnify the Indemnitee for any amounts paid in settlement of any
Proceeding effected without the Company's prior written consent. The Company
shall not settle any claim in which it takes the position that the Indemnitee is
not entitled to indemnification in connection with such settlement without the
prior written consent of the Indemnitee, nor shall the Company settle any
Proceeding in any manner which would impose any fine or any obligation on the
Indemnitee, without the Indemnitee's prior written consent. Neither the Company
nor the Indemnitee shall unreasonably withhold such consent to any proposed
settlement; provided, however, that the Indemnitee shall not be obligated to
consent to any proposed settlement unless in connection with such settlement the
Indemnitee shall be fully released from all liability with respect to the
relevant Proceeding either because such Proceeding was settled without
liability to the Indemnitee or, if the Indemnitee shall have any liability with
respect to such Proceeding, the Indemnitee shall be fully indemnified hereunder
from all Expenses resulting from such Proceeding and/or shall receive payment in
the amount of such Expenses pursuant to D&O Insurance.
10. Nonexclusivity. The provisions for indemnification and advance of
Expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which the Indemnitee may have under any provision of law, the Company's
Certificate of Incorporation (as amended or restated from time to time) or
By-Laws, in any court in which a proceeding is brought, the vote of the
Company's stockholders or disinterested directors, other agreements or
otherwise, both as to action in his or her official capacity and to action in
another capacity while an Agent of the Company, and the Indemnitee's rights
hereunder shall continue after the Indemnitee has ceased acting as an Agent of
the Company and shall inure to the benefit of the heirs, executors and
administrators of the Indemnitee. To the extent that a change in applicable law
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently, it is the intent of the parties
hereto that the Indemnitee shall enjoy by this Agreement the greater benefits
afforded by such change.
11. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all papers required and shall
do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Company effectively to bring
suit to enforce such rights.
12. Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted (including causes of action accruing prior to
the date of this Agreement) by or on behalf of the Company or any affiliate of
the Company against Indemnitee, Indemnitee's spouse, heirs, executors or
personal or legal representatives after the expiration of two years from the
date of accrual of such cause of action, and any claim or cause of action of the
Company or its affiliate shall be extinguished and deemed released unless
asserted by the timely filing of a legal action within such two-year period,
provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action, such shorter period shall govern.
13. Termination. This Agreement may be terminated by either party by
giving the other three months' written notice. The Indemnitee's discontinuance
to serve as a director of the
Company shall work on automatic termination of this Agreement. No termination of
this Agreement, automatic or otherwise, shall nullify any of the rights and
obligations of either Indemnitee or the Company hereunder in respect of any
matter occurring prior to the effective date of termination.
14. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever,
the validity, legality and enforceability of the remaining provisions of the
Agreement (including without limitation, all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby.
15. Modification and Waiver. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
16. Successors and Assigns. The terms of this Agreement shall bind,
and shall inure to the benefit of, the heirs, administrators, successors
(including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business and/or assets of the
Company) and assigns of the parties hereto.
17. Notice. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee, (ii) if mailed by
certified or registered mail with postage prepaid, on the third business day
after the mailing date, or (iii) if by facsimile transmission, upon receipt of a
clear transmission report. Addresses for notice to either party are as shown on
the signature page of this Agreement, or as subsequently modified by written
notice.
18. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of Delaware.
19. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same Agreement.
20. Exclusive Agreement. Except as expressly set forth herein, this
Agreement shall supersede and replace in its entirety any prior written or oral
agreement between the Company and the Indemnitee with regard to the subject
matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
LOGIMETRICS, INC.
000-00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
By:________________________
Name: _____________________
Title: ____________________
Name: _____________________
Title: ____________________
