Exhibit 10.3
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as of July 17,
2001 by and between Telaxis Communications Corporation, a Massachusetts
corporation (the "Corporation"), and Xxxxxxx Xxxx ("Indemnitee"), a director or
officer of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
directors and officers the most capable persons available, and
WHEREAS, the substantial increase in corporate litigation subjects
directors and officers to expensive litigation risks, and
WHEREAS, the Restated Articles of Organization and the Amended and Restated
By-laws of the Corporation permit the Corporation to indemnify its officers and
directors to the fullest extent permitted by law and Indemnitee has been serving
and continues to serve as a director or officer of the Corporation in part on
reliance on such Articles and such By-laws, and
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to enhance Indemnitee's continued service to
the Corporation in an effective manner and Indemnitee's reliance on the
aforesaid Articles and By-laws, and in part to provide Indemnitee with specific
contractual assurance that the protection promised by such Articles and such
By-laws will be available to Indemnitee (regardless of, among other things, any
amendment to or revocation of such Articles or such By-laws or any change in the
composition of the Corporation's Board of Directors or any acquisition
transaction relating to the Corporation), the Corporation wishes to provide in
this Agreement for indemnification of and the advancing expenses to Indemnitee
to the fullest extent (whether partial or complete) permitted by law and as set
forth in this Agreement, and, to the extent insurance is maintained, for the
continued coverage of Indemnitee under the Corporation's directors' and
officers' liability insurance policies;
NOW THEREFORE, the Corporation and Indemnitee do hereby agree as follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to serve as a
director or officer of the Corporation for so long as he is duly elected or
appointed or until such time as he tenders his 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 by or in the right of the
Corporation or otherwise and whether of a civil, criminal, administrative or
investigative nature, and any appeal therefrom.
(b) The term "Corporate Status" shall mean the status of a person who
is or was a director, officer, agent or consultant of or to the Corporation, or
is or was serving or has agreed to serve, at the request of the Corporation, as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise.
(c) The term "Expenses" shall include, without limitation, all
reasonably incurred attorneys' fees, retainers, court costs, transcript costs,
fees of experts, travel expenses, duplicating costs, printing and binding costs,
telephone and facsimile charges, postage and overnight delivery service fees and
other disbursements or expenses of the types customarily incurred in connection
with investigations, judicial or administrative proceedings or appeals, but
shall not include the amount of judgments, fines or penalties against Indemnitee
or amounts paid in settlement in connection with such matters.
(d) 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; references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent in any capacity with respect to an
employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith in the reasonable belief that his action was in the best
interest of the participant or beneficiaries of an employee benefit plan shall
be deemed to have acted in good faith in the reasonable belief that his action
was in the best interest of the "Corporation" as referred to in this Agreement.
(e) The term "Indemnified Costs" shall mean all Expenses and any and
all costs, liabilities, obligations, losses, damages, claims, actions,
judgments, fines, penalties, and amounts paid in settlement.
3. Indemnification In Third-Party Proceedings. The Corporation shall
indemnify Indemnitee, and hold Indemnitee harmless, in accordance with the
provisions of this Paragraph 3 from and against any and all Indemnified Costs
which may be imposed on, incurred by or asserted against Indemnitee at any time
as a result of or in connection with Indemnitee being a party to or threatened
to be made a party to or otherwise involved in any Proceeding (other than a
Proceeding by or in the right of the Corporation to procure a judgment in its
favor) by reason of his Corporate Status or by reason of any action alleged to
have been taken or omitted by Indemnitee or any other person or entity in
connection therewith; except that no indemnification shall be made under this
Paragraph 3 with respect to any matter as to which Indemnitee shall have been
adjudicated in any Proceeding not to have acted in good faith in the reasonable
belief that his action was in the best interest of the Corporation. The
termination of any Proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere, or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith in the reasonable belief
that his action was in the best interest of the Corporation.
4. Indemnification in Proceedings by or in the Right of the Corporation.
The Corporation shall indemnify Indemnitee, and hold Indemnitee harmless, in
accordance with the provisions of this Paragraph 4 from and against any and all
Indemnified Costs which may be imposed on, incurred by or asserted against
Indemnitee at any time as a result of or in connection with Indemnitee being a
party to or threatened to be made a party to or otherwise involved in any
Proceeding by or in the right of the Corporation to procure a judgment in its
favor by reason of his Corporate Status or by reason of any action alleged to
have been taken or omitted by Indemnitee or any other person or entity in
connection therewith, except that (a) no
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indemnification shall be made under this Paragraph 4 with respect to any matter
as to which Indemnitee shall have been adjudicated in any Proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interest of the Corporation and (b) no indemnification shall be made under this
Paragraph 4 in respect of any claim, issue, or matter as to which Indemnitee
shall have been adjudged to be liable to the Corporation, unless and only to the
extent that a court of Massachusetts shall determine upon application that,
despite the adjudication of such liability but in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to indemnity for such
Indemnified Costs as the court shall deem proper. The termination of any
Proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere, or its equivalent, shall not, of itself, create a presumption that
Indemnitee did not act in good faith in the reasonable belief that his action
was in the best interest of the Corporation.
5. Exceptions to Right of Indemnification. Notwithstanding anything to the
contrary in this Agreement, except as set forth in Paragraph 10, the Corporation
shall not indemnify Indemnitee under this Agreement in connection with a
Proceeding (or part thereof) initiated by Indemnitee unless the initiation
thereof was approved by the Board of Directors of the Corporation.
Notwithstanding anything to the contrary in this Agreement, the Corporation
shall not indemnify Indemnitee to the extent Indemnitee has actually been
reimbursed from the proceeds of insurance maintained by the Corporation, and in
the event the Corporation makes any indemnification payments to Indemnitee and
Indemnitee is subsequently reimbursed from such proceeds of insurance,
Indemnitee shall promptly refund such indemnification payments to the
Corporation to the extent of such insurance reimbursement.
6. Indemnification of Expenses of Successful Party. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee has been
successful, on the merits or otherwise, in defense of any Proceeding in which he
is involved by reason of his Corporate Status or by reason of any action alleged
to have been taken or omitted by Indemnitee or any other person or entity in
connection therewith, Indemnitee shall be indemnified, to the maximum extent
permitted by applicable law, against all Indemnified Costs incurred by him or on
his behalf in connection therewith. Without limiting the foregoing, if any such
Proceeding or any claim, issue or matter therein is disposed of, on the merits
or otherwise (including a disposition without prejudice), without (i) an
adjudication that Indemnitee was liable to the Corporation, or (ii) an
adjudication that Indemnitee did not act in good faith in the reasonable belief
that his action was in the best interest of the Corporation, Indemnitee shall be
considered for the purposes hereof to have been wholly successful with respect
thereto.
7. Notification and Defense of Claim. As a condition precedent to his right
to be indemnified under this Agreement, Indemnitee must notify the Corporation
in writing as soon as practicable of any Proceeding for which Indemnitee will
seek indemnification or for which indemnification could be sought by him and
provide the Corporation with a copy of any summons, citation, subpoena,
complaint, indictment, information or other document relating to such Proceeding
with which he is served; provided that any failure to so notify the Corporation
shall not relieve the Corporation from any liability under this Agreement,
except to the extent any delay or failure by Indemnitee to provide notice to the
Corporation shall increase the Corporation's liability hereunder. With respect
to any Proceeding of which the Corporation is so
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notified, the Corporation will be entitled to participate therein at its own
expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to Indemnitee. After written notice from the
Corporation to Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to Indemnitee for any fees or expenses of
counsel subsequently incurred by Indemnitee in connection with such Proceeding,
other than as provided below in this Paragraph 7. Indemnitee shall have the
right to employ his own counsel in connection with such Proceeding, but any fees
and expenses of such counsel incurred after written notice from the Corporation
of its assumption of the defense thereof shall be at the expense of Indemnitee
unless (i) the employment of counsel by Indemnitee has been authorized by the
Corporation, (ii) counsel to Indemnitee shall have reasonably concluded that
there may be a conflict of interest or position in any significant issue between
the Corporation and Indemnitee or between Indemnitee and any other jointly
represented party in the conduct of defense of such Proceeding, or (iii) the
Corporation shall not in fact have employed counsel to assume the defense of
such Proceeding, in each of which cases the reasonable fees and expenses of
counsel for Indemnitee shall be at the expense of the Corporation except as
otherwise expressly provided by this Agreement. Indemnitee may not settle any
Proceeding for which he seeks indemnification hereunder without first obtaining
the prior written consent of the Corporation, which shall not be unreasonably
withheld, conditioned or delayed.
8. Advancement of Expenses. Subject to the provisions of Paragraph 9 below,
any Indemnified Costs incurred by Indemnitee in connection with or arising out
of any Proceeding with respect to which Indemnitee is or may be entitled to
indemnification under this Agreement shall be paid or reimbursed to Indemnitee
by the Corporation in advance of the final disposition of such matter; provided,
however, that the payment or reimbursement of such Indemnified Costs in advance
of the final disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of Indemnitee to repay all amounts so advanced in
the event that it shall ultimately be determined that Indemnitee is not entitled
to be indemnified by the Corporation as authorized in this Agreement or
otherwise; and that no such advancement of expenses shall be made with respect
to any matter as to which it shall have been adjudicated in any Proceeding that
Indemnitee did not act in good faith in the reasonable belief that his action
was in the best interest of the Corporation. Such undertaking shall be accepted
without bond or other security or reference to the financial ability of
Indemnitee to make repayment.
9. Procedure for Indemnification. In order to obtain indemnification or
advancement of Indemnified Costs pursuant to this Agreement, Indemnitee shall
submit to the Corporation a written request, including in such request such
documentation and information as is reasonably available to Indemnitee
describing the amount of indemnification or advancement requested. Upon
Indemnitee's verification to the reasonable satisfaction of the Corporation of
the amount of any Indemnified Costs incurred by Indemnitee, the Corporation
shall either, at Indemnitee's direction, reimburse Indemnitee or pay as and when
due to the person or other entity entitled thereto the Indemnified Costs covered
by this Agreement.
10. Remedies. The right to indemnification or advancement of Expenses as
provided by this Agreement shall be enforceable by Indemnitee in any court of
competent jurisdiction if the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within twenty (20) days of submitting
a request under Paragraph 9 above. Unless otherwise required by law, the burden
of proving that indemnification or advancement is not appropriate
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shall be on the Corporation. Indemnitee's expenses (of the type described in the
definition of "Indemnified Costs" in Paragraph 2(e)) incurred in connection with
successfully establishing his right to indemnification or advancement, in whole
or in part, in any such Proceeding shall also be indemnified and advanced by the
Corporation.
11. Partial Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Corporation for some or a portion of
the Indemnified Costs incurred by him or on his behalf in connection with any
Proceeding but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such Indemnified Costs to
which Indemnitee is entitled.
12. Subrogation. In the event of any payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who, at the Corporation's expense, shall
execute all papers required and take all action necessary to secure such rights,
including execution of such documents as are necessary to enable the Corporation
to bring suit to enforce such rights.
13. Term of Agreement. This Agreement shall continue until and terminate
upon the later of (a) six years after the date that Indemnitee shall have ceased
to serve as a director or officer of the Corporation or, at the request of the
Corporation, as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise or (b) the final
termination (and expiration of all appeal periods) of all Proceedings pending on
the date set forth in clause (a) in respect of which Indemnitee is granted
rights of indemnification or advancement of Indemnified Costs hereunder and of
any proceeding commenced by Indemnitee pursuant to Paragraph 10 of this
Agreement relating thereto.
14. Indemnification Hereunder Not Exclusive. The indemnification and
advancement of Indemnified Costs provided by this Agreement shall be independent
of, in addition to and not be deemed exclusive or in derogation of any other
rights to which Indemnitee may be entitled under the Restated Articles of
Organization, the Amended and Restated By-Laws, any other agreement, any vote of
stockholders or disinterested directors, the Business Corporation Law of
Massachusetts, any other law (common or statutory), or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding office for the Corporation. Nothing contained in this Agreement shall be
deemed to prohibit the Corporation from purchasing and maintaining insurance, at
its expense, to protect itself or Indemnitee against any expense, liability or
loss incurred by it or him in any such capacity, or arising out of his status as
such, whether or not Indemnitee would be indemnified against such expense,
liability or loss under this Agreement.
15. No Special Rights. Nothing herein shall confer upon Indemnitee any
right to continue to serve as an officer or director of the Corporation for any
period of time or at any particular rate of compensation.
16. Savings Clause. If this Agreement or any portion thereof shall be held
invalid, unenforceable or void in whole or in part on any ground by any court of
competent jurisdiction, then (a) the parties shall promptly negotiate a
replacement provision effecting the parties' intent to provide indemnification
and advancement rights to Indemnitee to the maximum extent
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permitted by applicable law, (b) the Corporation shall nevertheless indemnify
Indemnitee as to Indemnified Costs to the maximum extent permitted by any
applicable portion of this Agreement that shall not have been invalidated and,
in any event, to the maximum extent permitted by applicable law, and (c) the
remaining provisions of this Agreement shall remain in full force and effect.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
18. Successors and Assigns. This Agreement shall be binding upon the
Corporation and its successors and 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 Corporation, and shall
inure to the benefit of the estate, heirs, executors, administrators and
personal representative of Indemnitee.
19. Headings. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
20. Modification and Waiver. This Agreement may be amended from time to
time to reflect changes in Massachusetts law or for other reasons. No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing 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 provision hereof nor shall any such waiver constitute a continuing waiver.
21. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given (i) when
delivered by hand or (ii) if mailed by certified or registered mail with postage
prepaid, on the third day after the date on which it is so mailed.
(a) if to Indemnitee, to:
Xxxxxxx Xxxx
000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
(b) if to the Corporation, to:
Telaxis Communications Corporation
00 Xxxxxxxxxx Xxxxx Xxxx
P.O. Box 109
South Deerfield, MA 01373-0109
Attention: President
or to such other addresses as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
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22. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts.
23. Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement or to protect the rights
obtained hereunder, the prevailing party shall be entitled to its reasonable
attorneys' fees, costs and disbursements in addition to any other relief to
which it may be entitled.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed as of the day and year first written above.
TELAXIS COMMUNICATIONS
CORPORATION
By:
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Name: Xxxx X. Xxxxxxxxxx
Title: President & CEO
INDEMNITEE:
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Name: Xxxxxxx Xxxx
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