EXHIBIT 10.3
AGREEMENT REGARDING INDEMNIFICATION
This Agreement is entered into as of June __, 2002, between
EDAC TECHNOLOGIES CORPORATION, a Wisconsin corporation (the "Company"), and the
Indemnitee identified on the signature page hereto (the "Indemnitee").
RECITALS
A. Pursuant to Article VIII of the Company's By-Laws, the
Company is required to indemnify its directors, officers, employees and others,
including the Indemnitee, against certain expenses (including attorneys' fees),
judgment, fines and amounts paid in settlement.
B. The Company and the Indemnitee desire to clarify certain
procedures relating to the Company's indemnification obligations pursuant to
Article VIII of the Company's By-Laws.
AGREEMENTS
In consideration of the foregoing and the mutual covenants and
agreements contained herein and in the Agreement, and intending to be legally
bound hereby, the Company and the Indemnitee hereby agree as follows:
1. In the event that the Indemnitee makes a written demand for
indemnification pursuant to Article VIII of the Company's By-Laws, then the
Company shall, within five business days after the receipt of such written
demand, either (a) provide written notice to the Indemnitee that he is entitled
to such indemnification following a determination in accordance with Section
8.04 of Article VIII of the Company's By-Laws or (b) submit the Indemnitee's
written demand to Independent Legal Counsel (as defined below) for
determination, in the form of a written opinion addressed to the Company and the
Indemnitee, of whether the Indemnitee is entitled to such indemnification
pursuant to Article VIII of the Company's By-Laws, which opinion shall be
delivered to the Company and the Indemnitee by the Independent Legal Counsel
within 15 business days after the Company's receipt of the Indemnitee's written
demand. For purposes of this Agreement, "Independent Legal Counsel" shall mean
an attorney or firm of attorneys who shall not have otherwise performed services
for the Company, any affiliate of the Company (which shall include any person or
entity who, at the time of the appointment of Independent Counsel, is a past or
present officer or director of the Company or beneficial owner of 5% or more the
outstanding common stock of the Company) or the Indemnitee within the three
years immediately prior to the
date of determination (other than with respect to matters concerning the rights
of the Indemnitee under this Agreement or the Company's By-Laws, or of other
indemnitees under similar indemnity agreements).
2. If there has been no determination by the Independent Legal
Counsel or if the Independent Legal Counsel determines that the Indemnitee
substantively would not be permitted to be indemnified in whole or in part under
applicable law, the Indemnitee shall have the right to commence litigation
seeking an initial determination by the court or challenging any such
determination by the Independent Legal Counsel or any aspect thereof, including
the legal or factual bases therefor, and the Company hereby consents to service
of process and to appear in any such proceeding. Any determination by the
Independent Legal Counsel otherwise shall be conclusive and binding on the
Company and Indemnitee.
3. In the event that any action is instituted by the
Indemnitee under this Agreement or under Article VIII of the Company's By-Laws
to enforce or interpret any of the terms hereof or thereof, the Indemnitee shall
be entitled to be paid all expenses (including attorneys' fees) incurred by the
Indemnitee with respect to such action, regardless of whether the Indemnitee is
ultimately successful in such action, and shall be entitled to the advancement
of expenses with respect to such action, unless, as a part of such action, a
court of competent jurisdiction over such action determines that each of the
material assertions made by the Indemnitee as a basis for such action was not
made in good faith or was frivolous. In the event of an action instituted by or
in the name of the Company under this Agreement to enforce or interpret any of
the terms of this Agreement, the Indemnitee shall be entitled to be paid all
expenses (including attorneys' fees) incurred by the Indemnitee in defense of
such action (including expenses incurred with respect to the Indemnitee
counterclaims and cross-claims made in such action), and shall be entitled to
the advancement of expenses with respect to such action, unless, as a part of
such action, a court having jurisdiction over such action determines that each
of the Indemnitee's material defenses to such action was made in bad faith or
was frivolous.
4. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors, assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Company, spouses, heirs, and personal and legal
representatives. The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all, or a substantial part, of the business and/or assets of the
Company, by written agreement in form and
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substance satisfactory to the Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place. This
Agreement shall continue in effect with respect to claims made by the Indemnitee
hereunder regardless of whether the Indemnitee continues to serve in a capacity
to which he is entitled to indemnification pursuant to Article VIII of the
Company's By-Laws.
5. All notices and other communications required or permitted
hereunder shall be in writing, shall be effective when given, and shall, in any
event be deemed to be given (a) five days after deposit with the U.S. Postal
Service or other applicable postal service, if delivered by first class mail,
postage prepaid, (b) upon delivery, if delivered by hand, (c) one business day
after the business day of deposited with Federal Express or similar overnight
courier, freight prepaid, or (d) one day after the business day of delivery by
facsimile transmission, if deliverable by facsimile transmission, with copy by
first class mail, postage prepaid, and shall be addressed if to an Indemnitee,
at the Indemnitee's address as set forth beneath the Indemnitee's signature to
this Agreement, and if to the Company at the address of its principal corporate
offices (attention: Secretary) or at such other address as such party may
designate by ten days' advance written notice to the other party hereto.
6. The Company and the Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Wisconsin for all
purposes in connection with any action or proceeding which arises out of or
relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in a federal or
state court located in Milwaukee County, Wisconsin.
7. This Agreement shall be governed by and its provisions
construed and enforced in accordance with the laws of the State of Wisconsin, as
applied to contracts between Wisconsin residents, entered into and to be
performed entirely within the State of Wisconsin, without regard to the conflict
of laws principles thereof.
8. No amendment, modification, termination or cancellation of
this Agreement shall be effective unless it is in writing signed by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
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9. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original.
Dated as of the date first written above.
EDAC TECHNOLOGIES CORPORATION
By:
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Name:
Title:
INDEMNITEE:
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Name:
Address:
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