EXHIBIT 10.17
FORM OF INDEMNITY AGREEMENT
THIS AGREEMENT is made as of ______________, 2003 by and between RadiSys
Corporation, an Oregon corporation ("Company"), and "Name" ("Indemnitee"), an
officer or director of the Company.
RECITALS
A. It is essential to the Company to retain and attract as directors and
officers the most capable persons available.
B. The increase in corporate litigation subjects directors and officers to
expensive litigation risks at the same time that the availability and coverage
of directors' and officers' liability insurance has been reduced.
C. Each of the Second Restated Articles of Incorporation of the Company
("Articles") and the bylaws of the Company ("Bylaws") require indemnification of
the directors of the Company to the fullest extent permitted by law. The
Articles, Bylaws and the Oregon Business Corporation Act ("Act") expressly
provide that the indemnification provisions set forth in the Articles, Bylaws
and the Act are not exclusive, and thereby contemplate that contracts may be
entered into between the Company and members of the board of directors and
officers with respect to indemnification of directors and officers.
D. Indemnitee does not regard the protection available under the Articles,
Bylaws and insurance adequate in the present circumstances, and may not be
willing to serve or continue to serve as a director or officer without adequate
protection, and the Company wants Indemnitee to serve in that capacity.
NOW, THEREFORE, the Company and Indemnitee agree as follows:
1. SERVICES TO THE COMPANY. Indemnitee will serve or continue to serve, at
the will of the Company, as a director or officer of the Company for so long as
Indemnitee is duly elected or appointed or until Indemnitee tenders a
resignation in writing.
2. DEFINITIONS. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened, pending or
completed action, suit or proceeding, whether brought in the right of the
Company or otherwise and whether of a civil, criminal, administrative or
investigative nature, in which Indemnitee may be or may have been involved
as a party or otherwise by reason of the fact that Indemnitee is or was a
director or officer of the Company or is or was serving at the
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request of the Company as a director, officer, or agent of another
corporation, partnership, joint venture, trust or other enterprise,
whether or not serving in such capacity at the time any liability or
expense is incurred for which indemnification or reimbursement can be
provided under this Agreement.
(b) The term "Expenses" includes, without limitation, expense of
investigations, judicial or administrative proceedings or appeals,
attorneys' fees and disbursements and any expenses of establishing a right
to indemnification under Section 11 of this Agreement, but shall not
include amounts paid in settlement by Indemnitee or the amount of
judgments or fines against Indemnitee.
(c) References to "other enterprise" shall include employee benefit
plans; references to "fines" shall include any excise tax assessed with
respect to any employee benefit plan; reference to "serving at the request
of the Company" shall include any service as a director, officer, employee
or agent of the Company which 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 reasonably believed to be in the interest 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.
3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. The Company shall indemnify
Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is
a party to or threatened to be made a party to any Proceeding (other than a
Proceeding by or in the right of the Company to procure a judgment in its favor)
against all Expenses, judgments, fines and amounts paid in settlement actually
and reasonably incurred by Indemnitee in connection with the Proceeding, but
only if Indemnitee acted in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company
and, in the case of a criminal proceeding, in addition, had no reasonable cause
to believe that Indemnitee's conduct was unlawful.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The Company
shall indemnify Indemnitee in accordance with the provisions of this Section 4
if Indemnitee is a party to or threatened to be made a party to any Proceeding
by or in the right of Company to procure a judgment in its favor against all
Expenses actually and reasonably incurred by Indemnitee in connection with the
defense or settlement of the Proceeding, but only if Indemnitee acted in good
faith and in a manner which Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company. No indemnification for Expenses
shall be made under this Section 4 in respect of any claim, issue or matter as
to which Indemnitee shall have been finally adjudged by a court to be liable to
the Company, unless and only to the extent that any court in which the
Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity.
5. INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any
other provisions 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 claim, issue or matter therein,
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including the dismissal of an action without prejudice, the Company shall
indemnify Indemnitee against all Expenses incurred in connection therewith.
6. ADDITIONAL INDEMNIFICATION.
(a) Notwithstanding any limitation in Sections 3, 4 or 5, the
Company shall indemnify Indemnitee to the fullest extent permitted by law
if Indemnitee is a party to or threatened to be made a party to any
Proceeding (including a Proceeding by or in the right of the Company to
procure a judgment in its favor) against all Expenses, judgments, fines
and amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with the Proceeding. No indemnity shall be made
under this Section 6(a) on account of Indemnitee's conduct which
constitutes a breach of Indemnitee's duty of loyalty to the Company or its
shareholders or is an act or omission not in good faith or which involves
intentional misconduct or a knowing violation of the law.
(b) Notwithstanding any limitation in Sections 3, 4, 5 or 6(a), the
Company shall indemnify Indemnitee to the fullest extent permitted by law
if Indemnitee is a party to or threatened to be made a party to any
Proceeding (including a Proceeding by or in the right of the Company to
procure a judgment in its favor) against all Expenses, judgments, fines
and amounts paid in settlement actually and reasonably incurred by
Indemnitee in connection with the Proceeding.
(c) For purposes of Sections 6(a) and 6(b), the meaning of the
phrase "to the fullest extent permitted by law" shall include, but not be
limited to:
(i) to the fullest extent permitted by the provision of the
Act that authorizes or contemplates additional indemnification by
agreement, or the corresponding provision of any amendment to or
replacement of the Act, and
(ii) to the fullest extent authorized or permitted by any
amendments to or replacements of the Act adopted after the date of
this Agreement that increase the extent to which a corporation may
indemnify its officers and directors.
7. EXCLUSIONS. Notwithstanding any provision in this Agreement, the
Company shall not be obligated under this Agreement to make any indemnity in
connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of
Indemnitee under any insurance policy or other indemnity provision, except
with respect to any excess beyond the amount paid under any insurance
policy or other indemnity provision;
(b) for any transaction from which Indemnitee derived an improper
personal benefit;
(c) for an accounting of profits made from the purchase and sale (or
sale and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provisions of state statutory law or common law;
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(d) if a court having jurisdiction in the matter shall finally
determine that such indemnification is not lawful under any applicable
statute or public policy (and, in this respect, both the Company and
Indemnitee 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
(e) in connection with any Proceeding (or part of any Proceeding)
initiated by Indemnitee, or any Proceeding by Indemnitee against the
Company or its directors, officers, employees or other indemnitees, unless
(i) the Company is expressly required by law to make the indemnification,
(ii) the Proceeding was authorized by the Board of Directors of the
Company, (iii) the Company provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Company under applicable
law, or (iv) Indemnitee initiated the Proceeding pursuant to Section 11 of
this Agreement and Indemnitee is successful in whole or in part in the
Proceeding.
8. ADVANCES OF EXPENSES. The Company shall pay the Expenses incurred by
Indemnitee in any Proceeding in advance at the written request of Indemnitee, if
Indemnitee:
(a) furnishes the Company a written affirmation of the Indemnitee's
good faith belief that Indemnitee is entitled to be indemnified by the
Company under this Agreement; and
(b) furnishes the Company a written undertaking to repay the advance
to the extent that it is ultimately determined that Indemnitee is not
entitled to be indemnified by the Company. Advances shall be made without
regard to Indemnitee's ability to repay the Expenses and without regard to
Indemnitee's ultimate entitlement to indemnification under the other
provisions of this Agreement.
9. NOTIFICATION AND DEFENSE OF CLAIM. Not later than thirty (30) days
after receipt by Indemnitee of notice of the commencement of any Proceeding,
Indemnitee will, if a claim in respect of the Proceeding is to be made against
the Company under this Agreement, notify the Company of the commencement of the
Proceeding. The omission to notify the Company will not relieve the Company from
any liability which it may have to Indemnitee otherwise than under this
Agreement. With respect to any Proceeding as to which Indemnitee notifies the
Company of the commencement:
(a) The Company will be entitled to participate in the Proceeding at
its own expense.
(b) Except as otherwise provided below, the Company may, at its
option and jointly with any other indemnifying party similarly notified
and electing to assume such defense, assume the defense of the Proceeding,
with legal counsel reasonably satisfactory to the Indemnitee. Indemnitee
shall have the right to use separate legal counsel in the Proceeding, but
the Company shall not be liable to Indemnitee under this Agreement,
including Section 8 above, for the fees and expenses of separate legal
counsel incurred after notice from the Company of its assumption of the
defense, unless (i) Indemnitee
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reasonably concludes that there may be a conflict of interest between the
Company and Indemnitee in the conduct of the defense of the Proceeding or
(ii) the Company does not use legal counsel to assume the defense of such
Proceeding. The Company shall not be entitled to assume the defense of any
Proceeding brought by or on behalf of the Company or as to which
Indemnitee shall have made the conclusion provided for in (i) above.
(c) If two or more persons who may be entitled to indemnification
from the Company, including the Indemnitee, are parties to any Proceeding,
the Company may require Indemnitee to use the same legal counsel as the
other parties. Indemnitee shall have the right to use separate legal
counsel in the Proceeding, but the Company shall not be liable to
Indemnitee under this Agreement, including Section 8 above, for the fees
and expenses of separate legal counsel incurred after notice from the
Company of the requirement to use the same legal counsel as the other
parties, unless the Indemnitee reasonably concludes that there may be a
conflict of interest between Indemnitee and any of the other parties
required by the Company to be represented by the same legal counsel.
(d) The Company shall not be liable to indemnify Indemnitee under
this Agreement for any amounts paid in settlement of any Proceeding
effected without its written consent, which shall not be unreasonably
withheld. Indemnitee shall permit the Company to settle any Proceeding the
defense of which it assumes, except that the Company shall not settle any
action or claim in any manner which would impose any penalty or limitation
on Indemnitee without Indemnitee's written consent, which may be given or
withheld in Indemnitee's sole discretion.
10. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION. Any indemnification
under Sections 3, 4, 5 or 6 of this Agreement shall be made no later than 45
days after receipt of the written request of Indemnitee for indemnification and
shall not require that a determination be made in accordance with the Act by the
persons specified in the Act that indemnification is required under this
Agreement. However, unless it is ordered by a court in an enforcement action
under Section 11 of this Agreement, no such indemnification shall be made if a
determination is made within such 45-day period by (a) the Board of Directors by
a majority vote of a quorum consisting of directors who were not parties to the
Proceeding, or (b)independent legal counsel in a written opinion (which counsel
shall be appointed if a quorum is not obtainable), that the Indemnitee is not
entitled to indemnification under this Agreement.
11. ENFORCEMENT. The Indemnitee may enforce any right to indemnification
or advances granted by this Agreement to Indemnitee in any court of competent
jurisdiction if (a) the Company denies the claim for indemnification or
advances, in whole or in part, or (b)the Company does not dispose of the claim
within 45 days of a written request for indemnification or advances. Indemnitee,
in the enforcement action, if successful in whole or in part, shall be entitled
to be paid also the expense of prosecuting the claim. It shall be a defense to
any such enforcement action (other than an action brought to enforce a claim for
advancement of Expenses pursuant to Section 8 above, if Indemnitee has tendered
to the Company the required affirmation and undertaking) that Indemnitee is not
entitled to indemnification under this Agreement, but the burden of proving this
defense shall be on the Company. Neither a failure of the Company (including its
Board of Directors or its shareholders) to make a determination prior to the
commencement of the enforcement action that indemnification of Indemnitee is
proper in
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the circumstances, nor an actual determination by the Company (including its
Board of Directors or its shareholders) that indemnification is improper shall
be a defense to the action or create a presumption that Indemnitee is not
entitled to indemnification under this Agreement or otherwise. The termination
of any Proceeding by judgment, order of court, settlement, conviction or upon a
plea of nolo contendere, or its equivalent, shall not, of itself, create a
presumption that Indemnitee is not entitled to indemnification under this
Agreement or otherwise.
12. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provisions of this Agreement to indemnification by the Company for some or part
of the Expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee in the investigation, defense, appeal or
settlement of any Proceeding but not, however, for the total amount, the Company
shall indemnify Indemnitee for the portion of the Expenses, judgments, fines and
amounts paid in settlement to which Indemnitee is entitled.
13. NONEXCLUSIVITY AND CONTINUITY OF RIGHTS. The indemnification provided
by this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may be entitled under the articles of incorporation, the bylaws, any
other agreement, any vote of shareholders or directors, the Act, or otherwise,
both as to action in Indemnitee's official capacity and as to action in other
capacity while holding office. The indemnification under this Agreement shall
continue as to Indemnitee even though Indemnitee ceases to be a director or
officer and shall inure to the benefit of the heirs and personal representatives
of Indemnitee.
14. BUSINESS COMBINATIONS. If any person or group (as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended) acquires the legal
right to elect a majority of the Board of Directors of the Company in a
transaction or series of transactions that has not received the prior approval
of the Board of Directors of the Company, (a) the Company or its successor, as
the case may be, shall, for a period of two years following the date that such
legal right is acquired (the "Trigger Date"), maintain any and all directors and
officers' liability insurance in effect prior to the Trigger Date that covers
Indemnitee and (b) this Agreement shall remain in full force and effect and
shall be binding on the Company and any successor in accordance with its terms.
15. SEVERABILITY. If this Agreement or any portion of it is invalidated on
any ground by any court of competent jurisdiction, the Company shall indemnify
Indemnitee as to Expenses, judgments, fines and amounts paid in settlement with
respect to any Proceeding to the full extent permitted by any applicable portion
of this Agreement that is not invalidated or by any other applicable law.
16. 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 Indemnitee. Indemnitee shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Company effectively to bring suit to enforce such rights.
17. MODIFICATION AND WAIVER. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both parties. No
waiver of any of the provisions of this Agreement shall constitute a waiver of
any other provisions of this Agreement
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(whether or not similar) nor shall any waiver constitute a continuing waiver,
unless expressly stated in any waiver.
18. NOTICES. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
(a) upon delivery if delivered by hand to the party to whom the notice or other
communication shall have been directed or (b) if mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
(i) If to Indemnitee, at the address indicated on the
signature page of this Agreement.
(ii) If to the Company to
RadiSys Corporation
0000 XX Xxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: CEO
or to any other address as may have been furnished to
Indemnitee by the Company.
19. COUNTERPARTS. The parties may execute this Agreement in two
counterparts, each of which shall constitute the original.
20. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the law of the state of Oregon.
21. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as
of the day and year first above written.
RADISYS CORPORATION INDEMNITEE
By: By:
--------------------------- ---------------------------
Xxxxx Xxxxx Name of officer or director
Chief Executive Officer Address
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