EXHIBIT 10.17
EMS TECHNOLOGIES, INC.
EXECUTIVE OFFICER'S
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of _______________, between EMS Technologies,
Inc., a Georgia corporation ("Corporation"), and ____________________________
("Officer").
WHEREAS, Officer serves as an executive officer of the Corporation and in such
capacity is expected to perform a valuable service; and
WHEREAS, the Corporation's Bylaws (the "Bylaws") permit the Board of Directors
to cause the Corporation to provide for the indemnification of officers of the
Corporation pursuant to Part 5 of Article 8 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 its officers with respect to
indemnification of such persons; 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 Officer
thereby; and
WHEREAS, in order to provide to Officer 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 Officer to serve in such
capacity, the Corporation has determined and agreed to enter into this contract
with Officer.
NOW, THEREFORE, in consideration of Officer's continued service as an executive
officer 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 Officer shall continue to
serve as an executive officer of the Corporation, and thereafter so
long as Officer 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 Officer was an
executive officer of the
Corporation (or while an executive officer 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 Officer 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. INDEMNIFICATION. Subject only to the exclusions set forth in Section 3
hereof, and in addition to any other indemnity to which Officer may be entitled
under the State Statute or any bylaw, resolution or agreement (but without
duplication of payments with respect to indemnified amounts), the Corporation
hereby agrees to hold harmless and indemnify Officer against any and all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by Officer 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 Officer is, was or at any time becomes a
party, or is threatened to be made a party, by reason of the fact that Officer
is or was an executive officer of the Corporation, or while an executive officer
was an 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.
3. LIMITATIONS ON INDEMNITY. No indemnity pursuant to Section 2 hereof
shall be paid by the Corporation:
(a) With respect to any proceeding in which Officer 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; or
(iii) for any transaction from which Officer received an
improper personal benefit;
(b) With respect to any suit in which final judgment is rendered
against Officer for an accounting of profits, made from the purchase or
sale by Officer 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 Officer 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.
4. CONTRIBUTION. If the indemnification provided hereby is unavailable and
may not be paid to Officer for any reason other than those set forth in
paragraph (b) of Section 3, then in respect of any threatened, pending or
completed action, suit or proceeding in which the Corporation is jointly liable
with Officer (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 Officer in such proportion as is appropriate to
reflect (i) the relative benefits received by the Corporation on the one hand
and Officer 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 Officer 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 Officer 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
4 were determined by pro rata allocation or any other method of allocation that
does not take account of the foregoing equitable considerations.
5. CONTINUATION OF OBLIGATIONS. All agreements and obligations of the
Corporation contained herein shall continue during the period Officer is an
executive officer of the Corporation, and shall continue thereafter for so long
as Officer 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 Officer was an executive officer of the Corporation
or, while an executive officer, served in any other capacity referred to herein.
6. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by Officer of
notice of the commencement of any action, suit or proceeding, Officer 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 Officer otherwise than under this Agreement. With respect to any such
action, suit or proceeding as to which Officer so notifies the Corporation:
(a) The Corporation will be entitled to participate therein at its
own expense; and
(b) Subject to Section 7 hereof, and if Officer shall have
provided his written affirmation of this good faith belief that his
conduct did not constitute behavior of the kind described in paragraph
3(a) hereof, the Corporation may assume the defense thereof.
After notice from the Corporation to Officer of its election so to
assume such defense, the Corporation will not be liable to Officer under this
Agreement for any legal or other expenses subsequently incurred by Officer in
connection with the defense thereof, other than reasonable costs of
investigation or as otherwise provided below. Officer 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 hereof shall be at the expense of Officer unless (i) the employment
of counsel by Officer has been authorized by the Corporation, (ii) counsel
designated by the Corporation to conduct such defense shall not be reasonably
satisfactory to Officer, 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, Officer shall be entitled to
determine that counsel designated by the Corporation is not reasonably
satisfactory if, among other reasons, Officer shall have been advised by
qualified counsel that, because of actual or potential conflicts of interest in
the matter between Officer, other officers or directors similarly indemnified by
the Corporation, and/or the Corporation, representation of Officer by counsel
designated by the Corporation is likely to materially and adversely affect
Officer's interest or would not be permissible under applicable canons of legal
ethics.
The Corporation shall not be liable to indemnify Officer 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 Officer
without Officer's written consent. Neither the Corporation nor Officer will
unreasonably withhold their consent to any proposed settlement
7. ADVANCEMENT AND REPAYMENT OF EXPENSES. Upon request thereof accompanied
by reasonably itemized evidence of expenses incurred, and by Officer's written
affirmation of his good faith belief that his conduct did not constitute
behavior of the kind described in paragraph 3(a) hereof, the Corporation shall
advance to Officer 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 Officer is entitled (assuming an applicable
standard of conduct is met) to indemnification pursuant to this Agreement.
Officer agrees to reimburse the Corporation for all reasonable expenses paid by
the Corporation, whether pursuant to this Section or Section 6 hereof, in
defending any action, suit or proceeding against Officer in the event and to the
extent that it shall ultimately be determined that Officer is not entitled to be
indemnified by the Corporation for such expenses under this Agreement.
8. 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 Officer to serve as an executive officer of
the Corporation, and acknowledges that Officer will in the future be
relying upon this Agreement in continuing to serve in such capacity.
(b) In the event Officer 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 Officer for
all of Officer's reasonable fees and expenses in bringing and pursuing
such action.
9. 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.
10. 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 Officer and the
Corporation, its successors and assigns, and shall inure to the benefit
of Officer, 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 Officer
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.
________________________________________ By: _________________________
Officer Chief Executive Officer
