EXHIBIT 10.13
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made and entered into this [______________] day of
[month], [year], by and between ORBCOMM Inc., a Delaware corporation (the
"Corporation"), and [name of Director] ("Director").
WHEREAS, the stockholders of the Corporation have adopted bylaws (the
"Bylaws") providing for the indemnification of the directors of the corporation,
including persons servicing at the request of the Corporation in such capacities
with other corporations or enterprises, as authorized by the Delaware General
Corporation Law, as amended (the "Code");
WHEREAS, the Bylaws and the Code, by their non-exclusive nature, permit
contracts between the Corporation and its agents, officers, employees and other
agents with respect to indemnification of such persons; and
WHEREAS, in order to induce Director to serve as a director of the
Corporation, the Corporation has determined and agreed to enter into this
Agreement with Director.
NOW, THEREFORE, in consideration of Director's agreement to serve as a
director after the date hereof, the parties hereto agree as follows:
AGREEMENT
1. SERVICES TO THE CORPORATION. Director will serve, at the will of the
Corporation or under separate contract, if any such contract exists, as a
director of the Corporation faithfully and to the best of his ability so long as
he/she is duly elected and qualified in accordance with the provisions of the
Bylaws or other applicable charter documents of the Corporation; provided,
however, that Director may at any time and for any reason resign from such
position.
2. INDEMNITY OF DIRECTOR. The Corporation hereby agrees to hold harmless
and indemnify Director to the fullest extent authorized, or permitted by the
provisions of the Bylaws and the Code, as the same may be amended from time to
time (but, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than the Bylaws or the Code permitted
prior to adoption of such amendment).
3. ADDITIONAL INDEMNITY. In addition to and not in limitation of the
indemnification otherwise, provided for herein, subject only to the exclusions
set forth in
Section 4 hereof, the Corporation hereby further agrees to hold harmless and
indemnify Director:
(a) against any and all expenses (including attorneys' fees), witness
fees, damages, judgments, fines and amounts paid settlement and any other
amounts that Director becomes legally obligated to pay because of any claim or
claims made against or by him/her in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, arbitration,
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, was or at
any time becomes a director of the Corporation; and
(b) otherwise to the fullest extent as may be provided to Director by
the Corporation under the non-exclusivity provisions of the Code and of the
Bylaws.
4. LIMITATIONS ON ADDITIONAL INDEMNITY. No indemnity pursuant to Section 3
hereof shall be paid by the Corporation:
(a) on account of any claim 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
Exchange Act of 1934 and amendments thereto or similar provisions of any
federal, state or local statutory law;
(b) on account of Director's conduct that was knowingly fraudulent or
deliberately dishonest or that constituted willful misconduct;
(c) on account of Director's conduct that constituted a breach of
Director's duty of loyalty to the Corporation or resulted in, any personal
profit or advantage to which Director was not legally entitled;
(d) for which payment is actually made to Director under a valid and
collectible insurance policy or under a valid and enforceable indemnity clause,
bylaw or agreement, except in respect of any excess beyond payment under such
insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the
Corporation and the Director have been advised that the Securities and Exchange
Commission believes that indemnification for liabilities arising under the
federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication); or
2
(f) in connection with any proceeding (or part thereof) initiated by
Director, or any proceeding by Director against the Corporation or its
directors, officers, employees or other agents, unless (i) such indemnification
is expressly required to be made by law, (ii) the proceeding was authorized by
the Board of Directors of the Corporation, (iii) such indemnification is
provided by the Corporation, in its sole discretion, pursuant to the powers
vested in the Corporation under the code, or (iv) the proceeding is initiated
pursuant to the Section 9 hereof.
5. CONTINUATION OF INDEMNITY. All agreements and obligations of the
Corporation contained herein shall continue during the period Director is a
director of the Corporation (or is or was serving at the request of the
Corporation as a director of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise that is an affiliate of the
Corporation) and shall continue thereafter so long as Director shall be subject
to any possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal, arbitration, administrative or
investigative, by reason of the fact that Director was serving in the capacity
referred to herein.
6. PARTIAL INDEMNIFICATION. Director shall be entitled under this Agreement
to indemnification by the Corporation for a portion of the expenses (including
attorneys' fees),witness fees, damages, judgments, fines and amounts paid in
settlement and any other amounts that Director becomes legally obligated to pay
in connection with any action, suit or proceeding referred to in Section 3
hereof even if not entitled hereunder to indemnification for the total amount
thereof, and the Corporation shall indemnify Director for the portion thereof to
which Director is entitled.
7. NOTIFICATION AND DEFENSE OF CLAIM. Not later than thirty (30) days 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, 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
notifies the Corporation of the commencement thereof:
(a) the Corporation will be entitled to participate therein at its own
expense;
(b) except as otherwise provided below, the Corporation may, at its
option and jointly with any other indemnifying party similarly notified and
electing to assume such defense, assume the defense thereof, with counsel
reasonably satisfactory to Director. After notice from the Corporation to
Director of its election to assume the defense thereof, 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
3
defense thereof except for reasonable costs of investigation or otherwise as
provided below. Director shall have the right to employ 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) Director shall have reasonably
concluded that there may be a conflict of interest between the Corporation and
Director in the conduct of the defense of such action 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 Director's separate counsel shall
be at the expense of the Corporation. The Corporation shall not be entitled to
assume the defense of any action, suit or proceeding brought by or on behalf of
the Corporation or as to which Director shall have made the conclusion provided
for in clause (ii) above; and
(c) 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, which shall not be unreasonably withheld.
The Corporation shall be permitted to settle any action except that it shall not
settle any action or claim in any manner which would impose any penalty or
limitation on Director without Director's written consent, which may be given or
withheld in Director's sole discretion.
8. EXPENSES. The Corporation shall advance, prior to the full disposition
of any proceeding, promptly following request therefor, all expenses incurred by
Director in connection with such proceeding upon receipt of an undertaking by or
on behalf of Director to repay said amounts if it shall be determined ultimately
that Director is not entitled to be indemnified under the provisions of this
Agreement, the Bylaws, the Code or otherwise.
9. ENFORCEMENT. Any right to indemnification or advances granted by this
Agreement to Director shall be enforceable by or on behalf of Director in any
court of competent jurisdiction if (i) the claim for indemnification or advances
is denied, in whole or in part, or (ii) no disposition of such claim is made
within ninety (90) days of request therefor. Director, in such enforcement
action, if successful in whole or in part, shall be entitled to be paid also the
expense of prosecuting his claim. It shall be a defense to any action for which
a claim for indemnification is made under Section 3 hereof (other than an action
brought to enforce a claim for expenses pursuant to Section 8 hereof, provided
that the required undertaking has been tendered to the Corporation) that
Director is not entitled to indemnification because of the limitations set forth
in Section 4 hereof. Neither the failure of the Corporation, (including its
Board of Directors or its stockholders) to have made a determination prior to
the commencement of such enforcement action that indemnification of Director is
proper in the circumstances, nor an actual determination by the Corporation
(including its Board of Directors or its
4
stockholders) that such indemnification is improper shall be a defense to the
action or create a presumption that Director is not entitled to indemnification
under this Agreement or otherwise.
10. 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 Director, who 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.
11. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on Director by this
Agreement shall not be exclusive of any other right which Director may have or
hereafter acquire under any statute, provision of the Corporation's Certificate
of Incorporation or Bylaws, agreement, vote of stockholders or directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office.
12. SURVIVAL OF RIGHTS.
(a) The rights conferred on Director by this Agreement shall continue
after Director has ceased to be a director of the Corporation or to serve at the
request of the Corporation as a director of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise and shall inure
to the benefit of Director's heirs, executors and administrators.
(b) The Corporation shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Corporation, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform if no such succession
had taken place.
13. SEVERABILITY. 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 for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof. Furthermore, if this Agreement shall be invalidated in its
entirety on any ground, then the Corporation shall nevertheless indemnify
Director to the fullest extent provided by the Bylaws, the Code or any other
applicable law.
14. GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
5
15. AMENDMENT AND TERMINATION. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
16. IDENTICAL COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute but one and the same Agreement. Only
one such counterpart need be produced to evidence the existence of this
Agreement.
17. HEADINGS. The headings of the sections of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction hereof.
18. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (i)
upon delivery if delivered by hand to the party to whom such communication was
directed or (ii) upon the third business day after the date on which such
communication was mailed if mailed by certified or registered mail with postage
prepaid:
(a) If to Director, at the address indicated on the signature page
hereof.
(b) If to the Corporation, to:
ORBCOMM Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer and General Counsel
Facsimile No.: 703-433-6400
or to such other address as may have been furnished to Director
by the Corporation.
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
ORBCOMM INC.
By
----------------------------------
Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
DIRECTOR
Print Name and Address:
Name:
-------------------------------
Address:
----------------------------
----------------------------
----------------------------
-------------------------------------
Signature
