Exhibit 10(c)
Form 10-QSB (3/31/97)
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is made this 19th day of February, 1997,
by and between EIP MICROWAVE, INC. (the "COMPANY") and Xxxxx X. Xxxxxx
("INDEMNITEE").
R E C I T A L S:
A. The Company acknowledges Indemnitee's reluctance to serve or
continue to serve the Company as a director, officer, employee and/or agent
without assurances that adequate liability indemnification is and will
continue to be provided;
B. The Company desires to attract and/or retain the services of
Indemnitee by entering into an agreement providing for broad indemnification
of Indemnitee by the Company;
C. The Company has been advised that it may provide such
indemnification under and in accordance with Delaware law by entering into
an agreement providing for broad indemnification of Indemnitee by the Company.
D. The stockholders of the Company have authorized the indemnification
of directors, officers, employees and other agents of the Company to the
maximum extent authorized by Delaware law in accordance with Section 145(f)
of the Delaware General Corporation Law; and
E. The Company desires to enter into this Agreement with Indemnitee to
provide Indemnitee with indemnification in accordance with the terms hereof.
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
1. INDEMNIFICATION.
1.1 Subject to Section 1.3 hereof, the Company hereby agrees to
hold harmless and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings, whether
civil, criminal, administrative or investigative, involving Indemnitee by
reason of the fact that he is or was a director, officer, employee or agent
of the Company (or by reason of the fact that he is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise) including
all expenses (including attorneys' fees) judgments, fines and amounts paid in
settlement, to the broadest and maximum extent permitted by Delaware law.
1.2 Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
(i) extend to and fully cover any Loss (as hereinafter defined),
whether such Claim is made against Indemnitee, individually or jointly with
others, by reason of any Wrongful Act (as hereinafter defined) made in
Indemnitee's capacity as a director, officer, employee and/or agent,
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Exhibit 10(c)
Form 10-QSB (3/31/97)
(ii) include all rights of indemnification provided to Indemnitee
under the existing provisions of the Bylaws of the Company, and
(iii) include all such additional rights of indemnification as
might possibly be provided to Indemnitee under the non-exclusivity of
Article 9, Section 3 of the Bylaws of the Company or Section 145(f) of the
Delaware General Corporation Law and which shall not be violative of
Section 145 of the Delaware General Corporation Law or contrary to the
public policy of the State of Delaware.
1.3 Nothing in this Section 1 shall be deemed to provide any
indemnity by the Company to Indemnitee on account of any matter:
(i) in respect to remuneration paid to Indemnitee if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law, or
(ii) for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company within the meaning 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
(iii) brought about or contributed to by the dishonesty of
Indemnitee if a final judgment or other final adjudication adverse to
Indemnitee establishes that acts of active and deliberate dishonesty were
committed or attempted by Indemnitee with actual dishonest purpose and
intent and were material to the adjudication, or
(iv) which is based on or attributable to Indemnitee having gained any
personal profit or disadvantage to which he was not entitled, in the event
that a final judgment or other final adjudication adverse to Indemnitee
establishes that Indemnitee in fact gained such personal profit or other
advantage to which he was not entitled, or
(v) in respect of which any final decision by a court having
jurisdiction of the matter shall determine that indemnification is not
lawful.
1.4 The Company shall pay the expenses incurred by Indemnitee in
defending any civil or criminal action, suit or proceeding in advance of the
final disposition of such action, suit or proceeding, provided that the Company
receives an undertaking by or on behalf of Indemnitee to repay such amounts
advanced if it is ultimately determined that he is not entitled to be
indemnified by the Company as authorized under this Agreement. The Company
shall perform its obligation under this Section 1.4 until such time as it may be
determined that Indemnitee is not entitled to indemnification by virtue of one
or more of the exclusions set forth in Section 1.3 hereof.
1.5 The reference in Section 1.1. hereof to Delaware law is to
Delaware law as the same exists from time to time but, in the case of any
amendment to or change in Delaware law, only to the extent that such amendment
or change permits the Company to provide broader or greater rights of
indemnification than is permitted to the Company prior to such amendment or
change.
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Exhibit 10(c)
Form 10-QSB (3/31/97)
2. DEFINITIONS.
2.1 LOSS. The term "Loss" shall mean any amount Indemnitee is
obligated or asserted to be obligated to pay in respect to his legal
liability, whether actual or asserted, for a Wrongful Act, and shall include
damages, judgments, settlements and costs, attorneys' fees, charges and
expenses incurred in the defense of Claims.
2.2 WRONGFUL ACT. The term "Wrongful Act" shall mean any breach
of duty, neglect, error, misstatement, misleading statement, omission or
other act done or wrongfully attempted by Indemnitee so alleged by any
claimant or any other matter claimed against Indemnitee by reason of
Indemnitee being a director, officer, employee or agent.
2.3 SUBSIDIARY. The term "Subsidiary" shall mean any corporation
of which at least 50% of the stock is owned by the Company or by any
Subsidiary.
2.4 CLAIM. The term "Claim" shall mean any suit, action,
proceeding, investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or with respect
to Indemnitee and/or the property of Indemnitee either by or in the right of
the Company or by or in the right of a party other than the Company.
3. SCOPE OF INDEMNIFICATION. This Agreement and the indemnification
provided herein:
3.1 Shall apply to Indemnitee in his capacity or capacities as a
director, officer, employee or agent, or the like, of (i) the Company, (ii)
any Subsidiary or former Subsidiary, or any Subsidiary which is hereafter
acquired or created by the Company, and (iii) corporations, partnerships,
associations and entities other than the Company and its Subsidiaries where
Indemnitee is directed or requested to serve by the Company;
3.2 Shall be irrevocable and perpetual, and, subject to Section
1.3 hereof, shall apply to any Claim arising or Loss incurred after the date
hereof, whether made or incurred prior to or after the termination of
Indemnitee's services to the Company in the capacities described in Section
3.1 above; and
3.3 Subject to Section 1.3 hereof, shall cover Losses arising from
any Claims made against the estate, heirs, legal representative or assigns of
Indemnitee.
3.4 The Company shall not be liable under this Agreement to make
any payment in connection with any Claim made against the Indemnitee for
which payment is actually made to the Indemnitee under a valid and
collectible insurance policy, except in respect of any excess beyond the
amount of payment under such insurance.
4. AGREEMENT TO BE LIBERALLY CONSTRUED. The purpose of this Agreement
is to induce Indemnitee either to serve the Company in one or more of the
capacities described in Section 3.1 hereof, or to induce Indemnitee to
continue to serve in one or more such capacities. The Company acknowledges
that, but for this Agreement and the expectation by Indemnitee that the
Company will perform each of its obligations hereunder, Indemnitee may not
consent to serve or to continue to
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Exhibit 10(c)
Form 10-QSB (3/31/97)
serve the Company in such capacities. Therefore, it is the intention of the
Company and the Indemnitee that this Agreement be liberally construed so as
to achieve its purpose of, subject to Section 1.3 hereof, protecting
Indemnitee from and against Losses arising from Wrongful Acts. The Company
agrees that it will not do or fail to do any act which would or might prevent
or hinder the performance by the Company of its obligations under this
Agreement.
5. AGREEMENT NOT EXCLUSIVE. The rights and benefits of Indemnitee,
and the obligations of the Company, under this Agreement shall be in addition
to, and shall not supersede or be in lieu of, the provisions (if any)
relating to the indemnification of Indemnitee by the Company in the
Certificate of Incorporation, Bylaws or resolutions of the Board of Directors
of the Company; the provisions of policies of insurance of the Company; the
provisions of policies of insurance or indemnification arrangements provided
by persons or entities other than the Company; or applicable law.
Notwithstanding anything to the contrary in this Agreement, the Company
agrees to defend, indemnify and hold harmless Indemnitee to the full extent
permitted from time to time by applicable law.
6. SEVERABILITY. Nothing in this Agreement is intended to require or
shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. In the event any provision of this Agreement is
finally determined by the courts to require the Company to do or fail to do
such an act, such provision shall be limited or modified in its application
to the minimum extent necessary to avoid a violation of law, and as so
limited or modified such provision and the balance of this Agreement shall be
enforceable in accordance with their terms.
7. CHOICE OF LAW. This Agreement is made and entered into pursuant to
Delaware General Corporation Law, and this Agreement shall be governed by,
and its provisions construed in accordance with, the laws of the State of
Delaware.
8. CHOICE OF FORUM. The Company agrees that any action by or on
behalf of the Company under this Agreement or to enforce or interpret any
provision of this Agreement shall be brought only in the state courts of the
State of Delaware, and in no other court; and that if any action is
instituted in any court by Indemnitee under this Agreement or to enforce or
interpret any of its terms, the Company hereby agrees, and will at such time
agree, to the exclusive jurisdiction and exclusive venue of such court, and
to personal service upon the Company by such court, for the purpose of such
action, and will not attempt to transfer or remove such action to another
court.
9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns, and shall inure to the benefit of
Indemnitee's estate, heirs, legal representatives and assigns.
10. ATTORNEYS' FEES. In the event that any action is instituted by
Indemnitee under this Agreement or to enforce or interpret any of the terms
of this Agreement, Indemnitee shall be entitled to be paid all court costs
and expenses, including attorneys' fees, incurred by Indemnitee with respect
to such action, unless as a part of such action the court determines that
each of the material assertions made by Indemnitee as a basis of such action
was not made in good faith or were frivolous. In the event any action is
instituted by or in the name of the Company under this Agreement or to
enforce or interpret any of the terms of this Agreement, Indemnitee shall be
entitled
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Exhibit 10(c)
Form 10-QSB (3/31/97)
to be paid all court costs and expenses, including reasonable attorneys'
fees, incurred by Indemnitee in defense of such action (including with
respect to Indemnitee's counterclaims and cross claims made in such action),
unless as a part of such action the court determines that each of
Indemnitee's material defenses to such action was made in bad faith or was
frivolous.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
EIP MICROWAVE, INC.
By: /s/ J. XXXXXXXX XXXXXX
----------------------------
J. Xxxxxxxx Xxxxxx
Chairman of the Board and
Chief Executive Officer
AGREED TO AND ACCEPTED BY INDEMNITEE:
/s/ XXXXX X. XXXXXX
--------------------------
Xxxxx X. Xxxxxx
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