Exhibit 10.1
BOARD OF DIRECTORS CONSULTING AND INDEMNITY AGREEMENT
Xxxxx Xxxx (the "Director" or "you") and Electroglas, Inc. (the
"Company" or "we") (collectively "the parties") enter into this Board of
Directors Consulting and Indemnity Agreement ("Agreement") as of the 6th day of
February, 2006.
The Company's formation documents contain comprehensive indemnification
provisions, but the parties understand that those provisions are there by
shareholder election. Accordingly, you and we both want to have in place
agreements that assure you the same level of indemnification by agreement. We
take this opportunity to update our understanding in this respect.
We have asked for your willingness to serve as a Director on the
Company's Board of Directors for a minimum number of years. We are compensating
you in part with stock options that will vest over that period. Though we do not
currently contemplate an acquisition in that time period, we know that it is
possible for companies to be acquired, and that it is common when that happens
for Board terms to end earlier than originally planned.
We wish to confirm our intent that you will continue as a consultant to
the Company (unless you decide otherwise) for the full period during which your
options vest or 24 months after you no longer are a director of Electroglas,
whichever period is longer. During this period we will pay you $1,500.00 per
quarter for said services. We and you believe that by doing so we will provide a
framework for obtaining your services and advice after the close of such a
transaction, and that we will also insure that our Shareholders thus obtain the
best possible advice from you with respect to such a proposal.
To accomplish those things, you and we agree as follows.
1. Service. You agree to serve or continue to serve as a Director of the
Company for so long as you are duly elected or appointed, or until you resign in
writing, whichever is first.
2. Consulting Commitment. We commit to engage you as a consultant for the
full term of any vesting period under any grant of options you may receive as a
Director of the Company or 24 months, whichever is longer.
2.1 Scope of Consulting: During Board Service. While you remain on our
Board of Directors, that consultancy will be consistent with the usual and
customary duties of a board member, and will include calling upon your
attendance at Board meetings and reasonable preparation for them, as well as
calling upon you, at times reasonably convenient for you and for us, for
telephone consultation on matters within your sphere of expertise. Your time
commitment for such consultation is not fixed, but will not exceed a commitment
that can be met at the same time you hold other full-time employment, and will
not exceed that usually attendant upon service as an outside member of the Board
of Directors.
2.2 Scope of Consulting: After Board Service. If you leave our Board
through resignation as a part of our process of merging with or acquiring
another entity, or being acquired by or merging into another entity, we will
(unless you tender your written resignation) expect to call upon you for
transition consulting at a level consistent with your earlier service on the
Board, for the duration of the vesting period of your option grants.
2.3 Termination. You may resign your service as a Director or Consultant
any time, by writing delivered to the Secretary of the Company. Our shareholders
may also decide not to elect you to additional terms in office. If you resign,
or if you are not elected to a subsequent term in office, it ends the Company's
obligations to continue to retain you as a consultant, except under three
circumstances. The first circumstance is if your resignation or your removal
from the Board is done for the purpose of complying with the terms of an
agreement involving a merger or acquisition of or by the Company, or following a
change in control of the Company in which a single acquirer (or group of
acquirer acting with a common purpose) has obtained effective voting control.
The second is if the Company elects to continue your services as consultant by
written election at the time of your resignation. The third is if you do not
stand for re-election for any reason and have served one full term as a director
prior to not standing for re-election, the Company may continue your option life
for 12 months after your termination as a director. This Agreement is neither
intended to nor shall limit any rights of you or the Company (including its
shareholders) provided in the Company's by-laws, Articles, other Company
policies and procedures, or otherwise under l, including regarding termination
of your service.
2.4 Nature of Relationship. Under this Agreement you are an independent
contractor, not an employee. This Agreement gives you the rights it describes,
but does not make you eligible for employee benefits, benefit plans, or the
like. As a member of the Board of Directors, you have a fiduciary obligation to
protect the interests of all of the shareholders of the Company. You have had
the opportunity to have that explained to you, and you understand what it means.
You acknowledge that among other things it means that if you obtain knowledge
relating to confidential affairs of the Company, like matters of a technical
nature such as know-how, formulas, software, trade secrets, secret processes or
machines, inventions or research projects, or matters of a business nature such
as information about costs, profits, pricing policies, markets, sales,
suppliers, plans for future development, plans for future products, marketing
plans or strategies, or client and customer information, or personnel and other
information which is not generally disclosed by the Company to the public
(collectively, "Confidential Information"), you will keep it in confidence, and
not use it or disclose it to third parties in any form, for any purpose during
and after your association with the Company. Confidential Information and
related information shall remain the sole property of the Company. Your
fiduciary obligations also mean that while you are a Director, you will avoid
simultaneously serving in any position for a competitor of the Company, and that
if you find yourself in a position in which your other obligations require that
service, you will promptly disclose it to the other members of our Board, recuse
yourself from any discussions and decisions involving competitive matters, and
if requested to do so by the Company, will resign from the Board. Your
obligations of confidentiality will continue after your association with the
Company.
2.5 Expenses. We will cover your out of pocket expenses for travel, meals,
accommodations, and communication, consistent with our policies for our senior
executive officers with respect to class of travel or accommodations and
purposes for those expenses, and subject to your submitting documentation for
expenses as our policy requires for our senior executives.
3. Indemnity. For the remaining sections of this Agreement, we will use
these terms:
3.1 "Proceeding" means threatened, pending or completed actions, suits or
other proceedings, whether brought in the right of the Company or otherwise and
whether of a civil, criminal, administrative or investigative nature, if you are
involved as a party or otherwise because you are or were a Director or officer
of the Company, or because you are or were serving at the request of the Company
as a Director, officer, employee, agent, or in some other capacity involving
services or duties, of another Company, partnership, joint venture, trust, or
other enterprise such as an employee benefit plan.
3.2 "Expenses" means reasonable expense of investigations, judicial or
administrative proceedings or appeals, attorneys' fees and disbursements and any
reasonable expenses of establishing a right to indemnification under this
Agreement, and other similar reasonable expenses. It does not include amounts
for which you may seek indemnification, e.g., amounts you pay in settlement or
the amount of judgments or fines (including for this purpose any excise tax
assessed with respect to employee benefit plans) awarded against you.
3.3 If your service involves an employee benefit plan, and you acted in
good faith and in a manner reasonably believed to be in the interest of an
employee benefit plan, you shall be deemed to have acted in a manner "not
opposed to the best interests of the Company" as referred to in this Agreement.
4. Indemnification.
4.1 Indemnity Commitment. We will indemnify you as this section outlines,
if you are or have been threatened with becoming a party to any Proceeding. Our
indemnification will cover all Expenses, judgments, fines, and amounts paid in
settlement that you actually and reasonably incur in connection with a
Proceeding, but only if you acted in good faith and in a manner which you
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 your conduct was unlawful, subject only to the limitations
below.
4.2 Limitations for Actions by or in right of the Company. If the
Proceeding is brought by or in the right of the Company to procure a judgment in
its favor, we will not indemnify you for Expenses, judgments, fines, and amounts
paid in settlement with respect to any claim, issue or matter as to which you
have been finally adjudged by a court to be liable to the Company, unless and
only to the extent that any court in which such a Proceeding was brought
determines that, despite the adjudication of liability but in view of all the
circumstance of the case, you are fairly and reasonably entitled to indemnity.
However, if you are successful in defending such a claim, on the merits or
otherwise, including without limitation if the action is dismissed without
prejudice, we will indemnify you against Expenses.
4.3 Comprehensive Indemnification. We intend that this Section 4 provide
you with the broadest and most comprehensive indemnification permitted under the
law that governs our corporation, in any Proceeding. Accordingly if that law
would permit broader indemnification than this Agreement otherwise expressly
provides, you are entitled to that broader indemnification. By "broadest and
most comprehensive indemnification permitted," we mean to include, among other
provisions of the law, any provisions of the law that authorize or contemplate
additional indemnification by agreement. If the law changes after the date of
this Agreement in ways that broaden permitted indemnification, you are entitled
to the broader coverage.
4.4 Advances of Expenses. We will pay in advance the Expenses you incur in
any Proceeding, on your written request, if you:
4.4.1 furnish us with a written affirmation of your good faith belief
that you are entitled to be indemnified under this Agreement; and
4.4.2 furnish us with a written undertaking to repay those advances
to the extent that it is ultimately determined by a court that you are
not entitled to be indemnified for those Expenses.
Such advances shall be made without regard to your ability to repay them.
Notwithstanding the foregoing, the Company shall not be required to advance
Expenses if the Company in good faith believes you are not entitled to be
indemnified under this Agreement.
5. Notification and Defense of Claim.
If you plan to claim indemnification under this Agreement, you must
provide us Notice of the applicable Proceeding promptly after you learn of it,
so that we have time to respond to you by any deadline applicable to the
Proceeding itself. At the latest, you must provide us with Notice of the
applicable Proceeding not more than thirty (30) days after the Proceeding
starts. With respect to Proceedings:
5.1 Company Participation. The Company will be entitled to participate in
Proceedings at its own expense.
5.2 Assumption of Defense. Except as otherwise provided below, we may, at
our option, alone or with any other indemnifying party similarly notified and
electing to assume the defense, assume the defense of the Proceeding with legal
counsel reasonably satisfactory to you. You shall have the right to employ
separate counsel in the Proceeding, but the Company will not be liable to you
under this Agreement for the fees and expenses of your own counsel incurred
after we give you Notice that we have assumed the defense, unless: (i) the
parties reasonably conclude that there may be a conflict of interest between the
Company and you in the conduct of the Proceeding; or (ii) we do not employ
counsel to assume the defense of the Proceeding. We will not be entitled to
assume the defense of any Proceeding brought by or on behalf of the Company, or
as to which you have reasonably concluded there may be a conflict of interest.
5.3 Shared Counsel. If you and one or more other people who may be entitled
to indemnification from us are parties to any Proceeding, we may require you to
engage the same legal counsel as the other people. You may still employ separate
legal counsel in such a Proceeding, but we will not be liable to you for the
fees and expenses of your separate counsel that you incur after you receive our
Notice of the requirement to engage the same counsel as other people, unless you
and we reasonably conclude that there may be a conflict of interest between you
and any of the other people represented by the counsel we require.
5.4 Consent Required. We will not be liable to indemnify you under this
Agreement for any amounts paid in settlement of any Proceeding, if the payment
is made without our written consent, which shall not be unreasonably withheld.
We will be permitted to settle any Proceeding the defense of which we have
assumed, except we may not settle any Proceeding or claim in any manner which
would impose any penalty or limitation on you without your written consent,
which you have the discretion to give or withhold. Notwithstanding the
foregoing, we, of course, may settle any alleged or actual liability of the
Company in any Proceeding without your consent.
6. Procedure Upon Application for Indemnification. We will act on your
request for indemnification under this Agreement no later than 90 days after we
receive your written request for it. We would conclude you are not entitled to
it only if one of these two things happens: (a) our Board of Directors, by a
majority vote of a quorum consisting of Directors who were not parties to such
Proceeding; or (b) independent legal counsel in writing (and we will appoint
such a counsel if such a quorum is not obtainable), determines that you should
not be entitled to indemnification under this Agreement. Notwithstanding the
foregoing, the Company, of course, would pay indemnification despite its
determination that indemnification is not owed if so directed by a court order.
7. Enforcement.
7.1 When you may enforce your rights. You may enforce your right to
indemnification or to advancement of Expenses under this Agreement, by action in
any court of competent jurisdiction, if (i) the Company denies your claim for
indemnification or advancement, in whole or in part, or (ii) no disposition of
such claim is made within 90 days of a written request.
7.2 Your entitlement to fees in the enforcement action. If you are
successful in that enforcement action, in whole or in part, you will also be
entitled to be paid your reasonable costs incurred in prosecuting the claim.
7.3 Our defenses. It shall be a defense to any such enforcement action
(other than an action brought to enforce a claim for advancement of expenses if
the required affirmation and undertaking have been tendered to the Company) that
you are not entitled to indemnification under this Agreement, but the burden of
proving such defense shall be on us.
7.4 No presumptions. Neither our failure to decide, before your enforcement
action, that indemnification is proper in the circumstances, nor our decision
before your enforcement action that such indemnification is improper shall be a
defense to the action or create a presumption that you are or are 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 you are or are not entitled to indemnification under this Agreement or
otherwise.
8. Partial Indemnification. If you are entitled to indemnification under
this Agreement for some or a portion but not all of the Expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by you in
the investigation, defense, appeal or settlement of any Proceeding but not,
however, for the total amount thereof, we will indemnify you for the portion to
which you are entitled.
9. Other Matters.
9.1 Non-Exclusivity and Continuity of Rights. This Agreement is not
exclusive. To the extent you have rights to indemnification under the articles
or bylaws of the Company, or under any other agreement, any vote of shareholders
or the Board of Directors, under applicable law, or otherwise, both as to action
in your official capacity and as to action in any other capacity, those rights
remain in place. The indemnification under this Agreement shall continue for you
even though you stop being a Director or officer and shall inure to the benefit
of your heirs and personal representatives.
9.2 Severability. If this Agreement or any part of it is invalidated on any
ground by any court of competent jurisdiction, we will still indemnify you 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, and to the full extent permitted by any other
applicable law.
9.3 Subrogation. If we pay any amounts under this Agreement, we shall be
subrogated to the extent of such payment to all your rights of recovery. You
will execute all documents required and shall do all acts necessary to secure
those rights to us and to enable us effectively to bring suit to enforce those
rights.
9.4 Modification and Waiver. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both you and us.
No waiver of any of the provisions of this Agreement shall constitute a waiver
of any other provisions of it (whether or not similar) nor shall such waiver
constitute a continuing waiver.
9.5 Notices. Notice for each party shall be sent to you at your address in
the Company's records, and if to the Company, to the CEO at the Company's
principle place of business, or to such other person or address as the parties
may from time to time by Notice provide. Notice shall be effective when actually
received by the party this Agreement designates for Notice, if sent by any means
that leaves a hard-copy record in the hands of the recipient. If sent properly
addressed by certified or registered mail, postage prepaid, return receipt
requested, Notice shall be deemed effective on the date the return receipt shows
the Notice was accepted, refused, or returned undeliverable.
9.6 Counterparts; Fax signatures. This Agreement may be executed in any
number of counterparts, which together shall constitute the original. Each of us
agrees to accept fax signatures.
9.7 Applicable Law. This Agreement shall be governed by and construed in
accordance with the law of the state in which the Company is incorporated.
9.8 Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
So agreed:
COMPANY: DIRECTOR:
Electroglas, Inc.
By: /s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxx
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Xxxxx Xxxxxx, Chairman & CEO
