EXHIBIT 10.9
FORM
OF
INDEMNITY AGREEMENT
This Indemnity Agreement (this "Agreement"), dated as of the _____ day
of ___________, 2003, is made by and between BRILLIAN CORPORATION. a Delaware
corporation (the "Company"), and the undersigned director and/or officer of the
Company (the "Indemnitee").
RECITALS
A The Company is aware that competent and experienced persons are
reluctant to serve as directors or officers of corporations unless they are
protected by comprehensive liability insurance and/or indemnification, due to
the 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 Board of Directors of the Company (the "Board") has concluded
that, to retain and attract talented and experienced individuals to serve as
officers and directors of the Company, it is necessary for the Company
contractually to indemnify officers and directors and to assume for itself
maximum liability for expenses and damages in connection with claims against
such officers and directors in connection with their service to the Company;
C. Section 145 of the General Corporation Law of Delaware, under which
the Company is organized ("Section 145"), empowers the Company to indemnify by
agreement its present and former officers, directors, employees, and agents and
persons who serve, at the request of the Company, as directors, officers,
employees, or agents of other corporations, partnerships, joint ventures,
trusts, or other enterprises and expressly provides that the indemnification
provided by Section 145 is not exclusive; and
D. The Company desires and has requested the Indemnitee to serve or
continue to serve as a director or officer of the Company free from undue
concern for claims for damages arising out of or related to such services to the
Company.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS
1.1 AGENT. For the purposes of this Agreement, "agent" of the
Company means any person who is or was a director or officer of the Company or a
subsidiary of the Company; or is or was serving at the request of, for the
convenience of, or to represent the interest of the Company or a subsidiary of
the Company as a director or officer of another foreign or domestic corporation,
partnership, joint venture, trust, or other enterprise or an affiliate of the
Company; or is or was a director or officer of another enterprise or affiliate
of the Company at the request of, for the convenience of,
or to represent the interests of such predecessor corporation. The term
"enterprise" includes any employee benefit plan of the Company, its
subsidiaries, affiliates, and predecessor corporations.
1.2 EXPENSES. For the purposes of this Agreement, "expenses"
includes all direct and indirect costs of any type or nature whatsoever
(including, without limitation, all attorneys' fees and related disbursements
and other out-of-pocket costs) actually and reasonably incurred by the
Indemnitee in connection with the investigation, defense, or appeal of a
proceeding or establishing or enforcing a right to indemnification or
advancement of expenses under this Agreement, Section 145, or otherwise;
provided, however, that expenses shall not include any judgments, fines, ERISA
excise taxes or penalties, or amounts paid in settlement of a proceeding.
1.3 PROCEEDING. For the purposes of this Agreement,
"proceeding" means any threatened, pending, or completed action, suit, or other
proceeding, whether civil, criminal, administrative, investigative, or any other
type whatsoever.
1.4 SUBSIDIARY. For purposes of this Agreement, "subsidiary"
means any corporation of which more than 50% of the outstanding voting
securities is owned directly or indirectly by the Company, by the Company and
one or more of its subsidiaries, or by one or more of the Company's
subsidiaries.
1.5 COMPANY. For purposes of this Agreement, the "Company"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger that, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee, or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise
shall stand in the same position under this Agreement with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued.
1.6 OTHER ENTERPRISES. For purposes of this Agreement, "other
enterprises" shall include employee benefit plans.
1.7 FINES. For purposes of this Agreement, references to
"fines" shall include any excise taxes assessed on a person with respect to any
employee benefit plan.
1.8 SERVING AT THE REQUEST OF THE COMPANY. For purposes of
this Agreement, "serving at the request of the Company" shall include any
service as a director, officer, employee, or agent of the Company that imposes
duties on, or involves services by, such director, officer, employee, or agent
with respect to an employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner such person reasonably believed
to be in the interest of the participants and
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beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Company" as referred to in this
Agreement.
1.9 ACTED IN A MANNER NOT OPPOSED TO THE BEST INTERESTS OF THE
COMPANY. For purposes of this Agreement, a person who acted in good faith and in
a manner such person reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Company." The
termination of a proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner that the
person reasonably believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal proceeding, had reasonable cause to
believe the person's conduct was unlawful.
2. AGREEMENT TO SERVE. The Indemnitee agrees to serve and/or continue
to serve as an agent of the Company, at the will of the Company (or under
separate agreement, if such agreement exists), in the capacity the Indemnitee
currently serves as an agent of the Company, faithfully and to the best of his
ability, as long as he is duly appointed or elected and qualified in accordance
with the applicable provisions of the charter documents of the Company or any
subsidiary of the Company; provided, however, that the Indemnitee may at any
time and for any reason resign from such position (subject to any contractual
obligation that the Indemnitee may have assumed apart from this Agreement), and
the Company and any subsidiary shall have no obligation under this Agreement to
continue the Indemnitee in any such position.
3. DIRECTORS' AND OFFICERS' INSURANCE. The Company shall, to the extent
that the Board determines it to be economically reasonable, maintain a policy of
directors' and officers' liability insurance ("D&O Insurance"), on such terms
and conditions as may be approved by the Board, whether or not the Company would
have the power to indemnify the Indemnitee under this Agreement.
4. MANDATORY INDEMNIFICATION. Subject to Section 9 below, the Company
shall indemnify the Indemnitee:
4.1 THIRD-PARTY ACTIONS. If the Indemnitee is a person who was
or is a party or is threatened to be made a party to any proceeding (other than
an action by or in the right of the Company) by reason of the fact that the
Indemnitee is or was the agent of the Company, or by reason of anything done or
not done by the Indemnitee in any such capacity, against any and all expenses
and liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) actually and reasonably incurred by the Indemnitee in connection
with the investigation, defense, settlement, or appeal of such proceeding if the
Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Company and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe the Indemnitee's conduct was unlawful; and
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4.2 DERIVATIVE ACTIONS. If the Indemnitee is a person who was
or is a party or is threatened to be made a party to any proceeding by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that the Indemnitee is or was an agent of the Company, or by reason of anything
done or not done by the Indemnitee in any such capacity, against any amounts
paid in settlement of any such proceeding and all expenses actually and
reasonably incurred by the Indemnitee in connection with the investigation,
defense, settlement, or appeal of such proceeding if the Indemnitee acted in
good faith and in a manner the Indemnitee reasonably believed to be in, or not
opposed to, the best interests of the Company; except that no indemnification
under this subsection shall be made in respect of any claim, issue, or matter as
to which such person shall have been finally adjudged to be liable to the
Company by a court of competent jurisdiction due to willful misconduct of a
culpable nature in the performance of such person's duty to the Company, unless
and only to the extent that the Court of Chancery or the court in which such
proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonable entitled to indemnity for such amount that the
Court of Chancery or such other court shall deem proper; and
4.3 EXCEPTION FOR AMOUNTS COVERED BY INSURANCE.
Notwithstanding the foregoing, the Company shall not be obligated to indemnify
the Indemnitee for expenses or liabilities of any type whatsoever (including,
but not limited to, judgments, fines, ERISA excise taxes or penalties, and
amounts paid in settlement) to the extent such have been paid to the Indemnitee
by D&O Insurance.
5. PARTIAL INDEMNIFICATION AND CONTRIBUTION.
5.1 PARTIAL INDEMNIFICATION. If the Indemnitee is entitled
under any provision of this Agreement to indemnification by the Company for some
or a portion of any expenses or liabilities of any type whatsoever (including,
but not limited to, judgments, fines, ERISA excise taxes or penalties, and
amounts paid in settlement) incurred by the Indemnitee in the investigation,
defense, settlement, or appeal of a proceeding but is not entitled, however, to
indemnification for all of the total amount thereof, then the Company shall
nevertheless indemnify the Indemnitee for such total amount except as to the
portion thereof to which the Indemnitee is not entitled to indemnification.
5.2 CONTRIBUTION. If the Indemnitee is not entitled to the
indemnification provided in Section 4 for any reason other than the statutory
limitations set forth in the Delaware General Corporation Law, then in respect
of any threatened, pending, or completed proceeding in which the Company is
jointly liable with the Indemnitee (or would be if joined in such proceeding),
the Company shall contribute to the amount of expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement actually and reasonably
incurred and paid or payable by the Indemnitee in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company on the
one hand and the Indemnitee on the other hand from the transaction from which
such proceeding arose and (ii) the relative fault of the Company on the one hand
and of the Indemnitee on the other hand in connection with the events that
resulted in such expenses, judgments, fines, or settlement amounts, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one hand and of the Indemnitee on the other hand 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
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in such expenses, judgments, fines, or settlement amounts. The Company 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. MANDATORY ADVANCEMENT OF EXPENSES.
6.1 ADVANCEMENT. Subject to Section 9 below, the Company shall
advance all expenses incurred by the Indemnitee in connection with the
investigation, defense, settlement, or appeal of any proceeding to which the
Indemnitee is a party or is threatened to be made a party by reason of the fact
that the Indemnitee is or was an agent of the Company or by reason of anything
done or not done by the Indemnitee in any such capacity. The Indemnitee hereby
undertakes to promptly repay such amounts advanced only if, and to the extent
that, it shall ultimately by determined that the Indemnitee is not entitled to
be indemnified by the Company either under the provisions of this Agreement or
under the provisions of the Certificate of Incorporation or Bylaws of the
Company, the General Corporation Law of Delaware, or otherwise. The advances to
be made hereunder shall be paid by the Company to the Indemnitee within thirty
(30) days following delivery of a written request therefor by the Indemnitee to
the Company.
6.2 EXCEPTION. Notwithstanding the foregoing provisions of
this Section 6, the Company shall not be obligated to advance any expenses to
the Indemnitee arising from a lawsuit filed directly by the Company against the
Indemnitee if an absolute majority of the members of the Board reasonably
determines in good faith, within thirty (30) days of the Indemnitee's request to
be advanced expenses, that the facts known to them at the time such
determination is made demonstrate clearly and convincingly that the Indemnitee
acted in bad faith. If such a determination is made, the Indemnitee may have
such decision reviewed in the manner set forth in Section 8.5 hereof, with all
references therein to "indemnification" being deemed to refer to "advancement of
expenses," and the burden of proof shall be on the Company to demonstrate
clearly and convincingly that, based on the facts known at the time, the
Indemnitee acted in bad faith. The Company may not avail itself of this Section
6.2 as to a given lawsuit if, at any time after the occurrence of the activities
or omissions that are the primary focus of the lawsuit, the Company has
undergone a change in control. For this purpose, a change in control shall mean
a given person of group of affiliated persons or groups increasing their
beneficial ownership interest in the Company by at least twenty (20) percentage
points without advance Board approval.
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7. NOTICE AND OTHER INDEMNIFICATION PROCEDURES.
7.1 NOTIFICATION. Promptly after receipt by the Indemnitee of
notice of the commencement of 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.
7.2 INSURANCE. If, at the time of the receipt of a notice of
the commencement of a proceeding pursuant to Section 7.1 hereof, the Company has
D&O Insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. 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 D&O Insurance policies.
7.3 DEFENSE. In the event the Company shall be obligated to
advance the expenses for any proceeding against the Indemnitee, the Company, if
appropriate, shall be entitled to assume the defense of such proceeding, with
counsel approved by the Indemnitee (which approval shall not be unreasonably
withheld), upon the delivery to the Indemnitee of written notice of its election
to do so. After delivery of such notice, approval of such counsel by the
Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to the Indemnitee under this Agreement for any fees of counsel
subsequently incurred by the Indemnitee with respect to the same proceeding,
provided that (a) the Indemnitee shall have the right to employ the Indemnitee's
own counsel in any such proceeding at the Indemnitee's expense; (b) the
Indemnitee shall have the right to employ the Indemnitee's own counsel in
connection with any such proceeding, at the expense of the Company, if such
counsel serves in a review, observer, advice, and counseling capacity and does
not otherwise materially control or participate in the defense of such
proceeding; and (c) if (i) the employment of counsel by the Indemnitee has been
previously authorized by the Company, (ii) the Indemnitee shall have reasonably
concluded that there may be conflict of interest between the Company and the
Indemnitee in the conduct of any such defense, or (iii) the Company shall not,
in fact, have employed counsel to assume the defense of such proceeding, then
the fees and expenses of the Indemnitee's counsel shall be at the expense of the
Company.
8. DETERMINATION OF RIGHT TO INDEMNIFICATION.
8.1 SUCCESS ON MERITS. To the extent the Indemnitee has been
successful on the merits or otherwise in defense of any proceeding referred to
in Section 4.1 or 4.2 of this Agreement or in the defense of any claim, issue,
or matter described therein, the Company shall indemnify the Indemnitee against
expenses actually and reasonably incurred by the Indemnitee in connection with
the investigation, defense, or appeal of such proceeding, or such claim, issue,
or matter, as the case may be.
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8.2 PROOF BY COMPANY. In the event that Section 8.1 is
inapplicable, or does not apply to the entire proceeding, the Company shall
nonetheless indemnify the Indemnitee unless the Company shall prove by clear and
convincing evidence to a forum listed in Section 8.3 below that the Indemnitee
has not met the applicable standard of conduct required to entitle the
Indemnitee to such indemnification.
8.3 APPLICABLE FORUMS. The Indemnitee shall be entitled to
select the forum in which the validity of the Company's claim under Section 8.2
hereof that the Indemnitee is not entitled to indemnification will be heard from
among the following, except that the Indemnitee can select a forum consisting of
the stockholders of the Company only with the approval of the Company and, if
the Indemnitee is a director or officer at the time of such determination, the
determination shall be made in accordance with (a), (b), (c) or (d) below at the
election of the Company:
(a) A majority vote of the directors who are not
parties to the proceeding for which indemnification is being sought even though
less than a quorum;
(b) By a committee of directors who are not parties
to the proceeding for which indemnification is being sought designated by a
majority vote of such directors, even though less than a quorum;
(c) If there are no directors who are not parties to
the proceeding for which indemnification is sought, or if such directors so
direct, by independent legal counsel in a written opinion;
(d) The stockholders of the Company;
(e) A panel of three arbitrators, one of whom is
selected by the Company, another of whom is selected by the Indemnitee and the
last of whom is selected by the first two arbitrators so selected; or
(f) The Court of Chancery of Delaware or other court
having jurisdiction of subject matter and the parties.
8.4 SUBMISSION. As soon as practicable, and in no event later
than thirty (30) days after the forum has been selected pursuant to Section 8.3
above, the Company shall, at its own expense, submit to the selected forum its
claim that the Indemnitee is not entitled to indemnification, and the Company
shall act in the utmost good faith to assure the Indemnitee a complete
opportunity to defend against such claim.
8.5 APPEALS. If the forum selected in accordance with Section
8.3 hereof is not a court, then after the final decision of such forum is
rendered, the Company or the Indemnitee shall have the right to apply to the
Court of Chancery of Delaware, the court in which the proceeding giving rise to
the Indemnitee's claim for indemnification is or was pending, or any other court
of competent jurisdiction, for the purpose of appealing the decision of such
forum, provided that such right is executed within sixty (60) days after the
final decision of such forum is rendered. If the forum selected in accordance
with Section 8.3 hereof is a court, then the rights of the Company or the
Indemnitee to
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appeal any decision of such court shall be governed by the applicable laws and
rules governing appeals of the decision of such court.
8.6 EXPENSES FOR INTERPRETATION. Notwithstanding any other
provision in this Agreement to the contrary, the Company shall indemnify the
Indemnitee against all expenses incurred by the Indemnitee in connection with
any hearing or proceeding under this Section 8 involving the Indemnitee and
against all expenses incurred by the Indemnitee in connection with any other
proceeding between the Company and the Indemnitee involving the interpretation
or enforcement of the rights of the Indemnitee under this Agreement unless a
court of competent jurisdiction finds that each of the material claims and/or
defenses of the Indemnitee in any such proceeding was frivolous or not made in
good faith.
9. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
9.1 CLAIMS INITIATED BY INDEMNITEE. To indemnify or advance
expenses to the Indemnitee with respect to proceedings or claims initiated or
brought voluntarily by the Indemnitee and not by way of defense, except with
respect to proceedings specifically authorized by the Board or brought to
establish or enforce a right to indemnification and/or advancement of expenses
arising under this Agreement, the charter documents of the Company or any
subsidiary or any statute or law or otherwise, but such indemnification or
advancement of expenses may be provided by the Company in specific cases if the
Board finds it to be appropriate; or
9.2 UNAUTHORIZED SETTLEMENTS. To indemnify the Indemnitee
hereunder for any amounts paid in settlement of a proceeding unless the Company
consents in advance in writing to such settlement, which consent shall not be
unreasonably withheld; or
9.3 SECURITIES LAW ACTIONS. To indemnify the Indemnitee on
account of any suit in which judgment is rendered against the Indemnitee for an
accounting of profits made from the purchase or sale by the Indemnitee of
securities of the company 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; or
9.4 UNLAWFUL INDEMNIFICATION. To indemnify the Indemnitee if a
final decision by a court having jurisdiction in the mater shall determine that
such indemnification is not lawful. In this respect, the Company and the
Indemnitee have been advised that the Securities and Exchange Commission takes
the position 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.
10. NON-EXCLUSIVITY. The provisions for indemnification and advancement
of expenses set forth in this Agreement shall not be deemed exclusive of any
other rights that the Indemnitee may have under any provision of law, the
Company's Certificate of
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Incorporation or Bylaws, the vote of the Company's stockholders or disinterested
directors, other agreements, or otherwise, both as to action in the Indemnitee's
official capacity and to action in another capacity while occupying the
Indemnitee's position as 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.
11. GENERAL PROVISIONS.
11.1 INTERPRETATION OF AGREEMENT. It is understood that the
parties hereto intend this Agreement to be interpreted and enforced so as to
provide indemnification and advancement of expenses to the Indemnitee to the
fullest extent now or hereafter permitted by law, except as expressly limited
herein.
11.2 SEVERABILITY. If any provision or provisions of this
Agreement shall be held to be invalid, illegal, or unenforceable for any reason
whatsoever, then (a) the validity, legality, and enforceability of the remaining
provisions of this 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; and (b) to
the fullest extent possible, the provisions of this 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 be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable and to give effect to Section 11.1 hereof.
11.3 MODIFICATION AND WAIVER. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing by 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.
11.4 SUBROGATION. In the even of full 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 documents
required and shall do all acts that may be necessary or desirable to secure such
rights and to enable the Company effectively to bring suit to enforce such
rights.
11.5 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, which shall together constitute one agreement.
11.6 SUCCESSORS AND ASSIGNS. The terms of this Agreement shall
bind, and shall inure to the benefit of, the successors and assigns of the
parties hereto. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Agreement shall, unless otherwise provided when
authorized or ratified, continue as to a
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person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
11.7 NOTICE. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed duly
given (a) if delivered by hand and receipted for by the party addressee; or (b)
if mailed by certified or registered mail, with postage prepaid, on the third
business day after the mailing date. Addresses for notice to either party are as
shown on the signature page of this Agreement or as subsequently modified by
written notice.
11.8 GOVERNING LAW. This Agreement shall be governed
exclusively by and construed according to the laws of the state of Delaware, as
applied to contracts between Delaware residents entered into and to be performed
entirely within Delaware.
11.9 CONSENT TO JURISDICTION. The Company and the Indemnitee
each hereby irrevocably consent to the jurisdiction of the courts of the state
of Delaware for all purposes in connection with any action or proceeding which
arises out of or relates to this Agreement.
11.10 ATTORNEYS' FEES. In the event Indemnitee is required to
bring any action to enforce rights under this Agreement (including, without
limitation, the expenses of any proceeding described in Section 3), the
Indemnitee shall be entitled to all reasonable fees and expenses in bringing and
pursuing such action, unless a court of competent jurisdiction finds each of the
material claims of the Indemnitee in any such action was frivolous and not made
in good faith.
IN WITNESS WHEREOF, the parties hereto have entered into this Indemnity
Agreement effective as of the date first written above.
INDEMNITEE: BRILLIAN CORPORATION
a Delaware corporation
--------------------------------- By:
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Title:
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