FORM OF DIRECTOR INDEMNIFICATION AGREEMENT (Delaware corporation)
Exhibit
10.2
(Delaware
corporation)
Indemnification
Agreement (this “Agreement”),
dated
as of June 24, 2008 between Memry Corporation, a Delaware corporation (the
“Company”),
and
[Director] (“Indemnitee”).
W
I T N E
S S E T H:
WHEREAS,
highly competent persons have become more reluctant to serve publicly-held
corporations as directors or in other capacities unless they are provided with
adequate protection through insurance and indemnification against risks of
claims and actions against them arising out of their service to and activities
on behalf of the corporation.
WHEREAS,
the Board of Directors of the Company (the “Board”)
has
determined that, in order to attract and retain qualified individuals, the
Company will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its subsidiaries
from certain liabilities. Although the furnishing of such insurance has been
a
customary and widespread practice among United States-based corporations and
other business enterprises, the Company believes that, given current market
conditions and trends, such insurance may be available to it in the future
only
at higher premiums and with more exclusions. At the same time, directors,
officers, and other persons in service to corporations or business enterprises
are being increasingly subjected to expensive and time-consuming litigation
relating to, among other things, matters that traditionally would have been
brought only against the Company or business enterprise itself.
WHEREAS,
the Certificate of Incorporation of the Company provides that the Company shall
indemnify and advance expenses to all directors and officers of the Company
in
the manner set forth therein and to the fullest extent permitted by applicable
law, and the Company’s Certificate of Incorporation provides for limitation of
liability for directors. In addition, Indemnitee may be entitled to
indemnification pursuant to the General Corporation Law of the State of Delaware
(“DGCL”).
The
Certificate of Incorporation and the DGCL expressly provide that the
indemnification provisions set forth therein are not exclusive, and thereby
contemplate that contracts may be entered into between the Company and members
of the board of directors, officers and other persons with respect to
indemnification.
WHEREAS,
the uncertainties relating to such insurance and to indemnification have
increased the difficulty of attracting and retaining such persons.
WHEREAS,
the Board has determined that the increased difficulty in attracting and
retaining such persons, especially in the context of the eventual sale of the
Company, is detrimental to the best interests of the Company’s stockholders and
that the Company should act to assure such persons that there will be increased
certainty of such protection in the future.
WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of, such persons
to the fullest extent permitted by applicable law so that they will serve or
continue to serve the Company free from undue concern that they will not be
so
indemnified.
WHEREAS,
this Agreement is a supplement to and in furtherance of the Certificate of
Incorporation of the Company and any resolutions adopted pursuant thereto and
shall not be deemed a substitute therefor, nor to diminish or abrogate any
rights of Indemnitee thereunder.
WHEREAS,
Indemnitee is concerned that the protection available under the Company’s
charter and by-laws and insurance may not be adequate, and may not be willing
to
continue to serve as an officer or director of the Company, especially in the
context of the possible sale of the Company, without greater certainty
concerning such protection, and the Company desires Indemnitee to serve in
such
capacity and is willing to provide such greater certainty.
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:
ARTICLE
1
CERTAIN
DEFINITIONS
(a) As
used
in this Agreement:
“Corporate
Status”
means
the status of a person who is or was a director, officer, employee or agent
of
the Company or who is or was serving at the request of the Company as a
director, officer, employee or agent of any other Enterprise.
“Enterprise”
means
any corporation, limited liability company, partnership, joint venture, trust,
employee benefit plan or other person or enterprise.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Expenses”
means
all costs and expenses (including fees and expenses of counsel) paid or incurred
in connection with investigating, defending, being a witness in or otherwise
participating in, or preparing to defend, be a witness in or participate in,
a
Proceeding (or any appeal therefrom). Expenses shall include expenses incurred
in connection with any appeal resulting from any Proceeding, including the
premium, security for and other costs relating to any cost bond, supersedeas
bond or other appeal bond or its equivalent.
“Liabilities”
means
all judgments, fines (including any excise taxes assessed with respect to any
employee benefit plan), penalties and amounts paid in settlement and other
liabilities (including all interest, assessments and other charges paid or
payable in connection with or in respect of any such amounts) arising out of
or
in connection with any Proceeding; provided that Liabilities shall not include
any Expenses.
“person”
means
an individual, corporation, partnership, limited liability company, association,
trust or other entity or organization.
“Proceeding”
includes any threatened, pending or completed action, suit or other proceeding
(which shall include an arbitration or other alternate dispute resolution
mechanism), whether civil, criminal, administrative or investigative in nature
(including any appeal therefrom) and whether instituted by or on behalf of
the
Company or any other party, in any such case, in which Indemnitee was, is or
may
be involved as a party or otherwise by reason of any Corporate Status of
Indemnitee or by reason of any action taken (or failure to act) by him or on
his
part while serving in any Corporate Status (in each case, whether or not serving
in such capacity at the time any liability or expense is incurred for which
indemnification or advancement of expenses can be provided under this
Agreement), or any inquiry or investigation that Indemnitee in good faith
believes might lead to the institution of any such action, suit or other
proceeding; provided that Proceeding shall not include an action, suit or other
proceeding contemplated by Section
7.06(b).
2
(b) For
the
purposes of this Agreement:
References
to the “Company” shall include, in addition to the surviving or resulting
corporation in any merger or consolidation, any constituent corporation
(including any constituent of a constituent) absorbed in a merger or
consolidation which, if its separate existence had continued, would have had
power and authority to indemnify its directors, officers, employees or agents,
so that if Indemnitee is or was a director, officer, employee or agent of such
constituent corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another Enterprise,
then Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the surviving or resulting corporation as Indemnitee
would have with respect to such constituent corporation if its separate
existence had continued.
References
to “director, officer, employee or agent” shall include a trustee, general
partner, managing member, fiduciary or board of directors’ committee
member.
References
to “serving at the request of the Company” shall include any service as a
director, officer, employee or agent of the Company or any other Enterprise
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 such person
reasonably believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in
a
manner “not opposed to the best interests of the Company”.
ARTICLE
2
SERVICES
BY INDEMNITEE
Section
2.01 Services
by Indemnitee.
Indemnitee hereby agrees to continue to serve as a director of the Company,
for
so long as Indemnitee is duly elected or appointed or until Indemnitee tenders
his resignation or is removed. Indemnitee retains the right to voluntarily
resign at any time and for any reason.
ARTICLE
3
INDEMNIFICATION
AND ADVANCEMENT OF EXPENSES
Section
3.01 Indemnification.
(a) The
Company hereby agrees to and shall indemnify Indemnitee and hold him harmless,
to the fullest extent permitted by applicable law, from and against any and
all
Expenses and Liabilities actually and reasonably incurred by Indemnitee or
on
Indemnitee’s behalf.
3
(b) To
the
extent that Indemnitee is a party to (or a participant in) and is successful,
on
the merits or otherwise, in respect of any Proceeding or any claim, issue or
matter therein, the Company shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith. If Indemnitee is successful, on the merits or otherwise, as to one
or
more but less than all claims, issues or matters in any Proceeding, the Company
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf in connection with each successfully resolved claim,
issue or matter and any claim, issue or matter related to each such successfully
resolved claim, issue or matter. For purposes of this Section
3.01(b)
and
without limitation, the termination of any Proceeding or any claim, issue or
matter in a Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such Proceeding, claim, issue or
matter.
(c) To
the
extent that Indemnitee is, by reason of his Corporate Status, a witness in
any
Proceeding to which Indemnitee is not a party, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.
Section
3.02 Advancement
of Expenses.
(a) The
Company shall advance any Expenses actually and reasonably incurred by
Indemnitee or on his behalf in connection with a Proceeding within 20 days
after
receipt by the Company of a written request for advancement of expenses, which
request may be delivered to the Company at such time and from time to time
as
Indemnitee deems appropriate in his sole discretion. Advances shall be made
without regard to Indemnitee’s ability to repay such amounts and without regard
to Indemnitee’s ultimate entitlement to indemnification under this Agreement or
otherwise. Any such advances shall be made on an unsecured basis and be interest
free.
(b) Indemnitee
agrees that Indemnitee shall reimburse the Company for all amounts advanced
by
the Company pursuant to Section
3.02
if and
only to the extent that it is ultimately determined that Indemnitee is not
entitled to be indemnified by the Company for such Expenses. Notwithstanding
the
foregoing, if Indemnitee seeks a judicial adjudication or an arbitration
pursuant to Section
5.01(a),
Indemnitee shall not be required to reimburse the Company pursuant to this
Section
3.02(b)
until a
final determination (as to which all rights of appeal have been exhausted or
lapsed) has been made.
Section
3.03 Exclusions.
Notwithstanding any provision of this Agreement to the contrary (including
Section
3.01
and
Section
3.02),
the
Company shall not be obligated under this Agreement to indemnify (or advance
expenses) in connection with:
(a) any
claim
made against Indemnitee (i) for an accounting of profits made from the purchase
and sale (or sale and purchase) by Indemnitee of securities of the Company
pursuant to Section 16(b) of the Exchange Act or similar provisions of state
statutory law or common law or (ii) for reimbursement to the Company of any
bonus or other incentive-based or equity-based compensation or of any profits
realized by Indemnitee from the sale of securities of the Company in each case
as required under the Exchange Act; or
4
(b) except
for an action, suit or other proceeding contemplated by Section
7.06(b)
and
except following a Change in Control (as defined below), any action, suit or
other proceeding (or part thereof) initiated by Indemnitee (including any such
action, suit or other proceeding (or part thereof) initiated by Indemnitee
against the Company or its directors, officers, employees, agents or other
indemnitees), unless (i) the Board authorized the action, suit or other
proceeding (or part thereof) prior to its initiation or (ii) the Company
provides the indemnification, in its sole discretion, pursuant to the powers
vested in the Company under applicable law.
Section
3.04 Defense
Of Claims.
The
Company will be entitled to participate in any Proceeding at its own expense.
The Company shall not settle any Proceeding (in whole or in part) which would
impose any Expense, Liability or limitation on Indemnitee without Indemnitee’s
prior written consent, such consent not to be unreasonably withheld. Indemnitee
shall not settle any Proceeding (in whole or in part) which would impose any
Expense, Liability or limitation on the Company without the Company’s prior
written consent, such consent not to be unreasonably withheld.
ARTICLE
4
PROCEDURES
FOR DETERMINING ENTITLEMENT TO INDEMNIFICATION
Section
4.01 Request
for Indemnification.
(a) Indemnitee
shall notify the Company in writing as soon as reasonably practicable (i) after
being served with any summons, citation, subpoena, complaint, indictment,
information or other document relating to any Proceeding or (ii) if the Company
has not been previously notified, after receipt of written notice of any other
matter with respect to which Indemnitee intends to seek indemnification or
advancement of expenses under Section
3.01
or
Section
3.02.
The
omission by Indemnitee to so notify the Company will not relieve the Company
from any liability which it may have to Indemnitee (i) under this Agreement
except and only to the extent the Company can establish that such omission
to
notify resulted in actual material prejudice to the Company or (ii) otherwise
than under this Agreement.
(b) Indemnitee
may thereafter deliver to the Company a written request for indemnification
pursuant to this Agreement at such time and from time to time as Indemnitee
deems appropriate in his sole discretion, which request shall also be deemed
a
request for advancement of expenses under Section
3.02.
Section
4.02 Determination
of Entitlement.
(a) Except
as
otherwise provided pursuant to Section
3.01(b)
and
Section
3.01(c),
a
determination shall be made with respect to Indemnitee’s entitlement thereto in
the specific case (i) by a majority vote of the Disinterested Directors or
of a
committee of Disinterested Directors designated by a majority vote of the
Disinterested Directors (in either case, even though less than a quorum of
the
Board) or (ii) if there are no Disinterested Director or the Disinterested
Directors so direct, by Independent Counsel. If a Change in Control shall have
occurred, such determination shall, if so requested by Indemnitee in his or
her
discretion, be made by Independent Counsel. Any determination made by
Independent Counsel pursuant to this Section
4.02(a)
shall be
in the form of a written opinion to the Board, a copy of which shall be
delivered to Indemnitee. Indemnitee shall reasonably cooperate with the person
or persons making such determination including providing to such person or
persons upon reasonable advance request any documentation or information which
is not privileged or otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such determination. Any
costs or expenses (including fees and expenses of counsel) incurred by
Indemnitee in so cooperating with the person or persons making such
determination shall be borne by the Company (irrespective of the determination
as to Indemnitee’s entitlement to indemnification), and the Company hereby
indemnifies and agrees to hold Indemnitee harmless therefrom.
5
As
used
in this Agreement, the following terms shall have the following
meanings:
“Disinterested
Director”
means
a
director of the Company who is not and was not a party to the Proceeding in
respect of which indemnification or advancement of expenses is sought by
Indemnitee.
“Change
in Control”
shall
be deemed to have occurred in any one of the following circumstances occurring
after the date hereof:
(i) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) (other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company) shall have become, without prior
approval of the Company’s Board, the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of voting securities
of
the Company representing 15% or more of the total voting power of the Company’s
then outstanding voting securities;
(ii) the
individuals who on the date hereof constitute the Board (including, for this
purpose, any new director whose election or nomination for election by the
Company’s stockholders was approved by a vote of at least a majority of the
directors then still in office who were directors on the date hereof or whose
election or nomination was so approved) cease for any reason to constitute
at
least a majority of the members of the Board; or
(iii) the
stockholders of the Company shall have approved a merger or consolidation of
the
Company with any other entity, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
to
such merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving or
resulting entity) more than 51% of the total voting power of the voting
securities of the surviving or resulting entity outstanding immediately after
such merger or consolidation and with the power to elect at least a majority
of
the board of directors or other governing body of such surviving or resulting
entity;
(iv) the
stockholders of the Company shall have approved a plan of complete liquidation
of the Company or the sale or other disposition of all or substantially all
of
the assets of the Company;
6
(v) there
shall have occurred an event required to be reported with respect to the Company
in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response
to
any similar item on any similar schedule or form) under the Exchange Act,
regardless of whether the Company is then subject to such reporting
requirement.
“Independent
Counsel”
means
a
law firm, or a member of a law firm, that is experienced in matters of corporate
law and neither currently is, nor in the five years previous to its selection
or
appointment has been, retained to represent (i) the Company or Indemnitee in
any
matter material to either such party (provided that acting as an Independent
Counsel under this Agreement or in a similar capacity with respect to any other
indemnification arrangements between the Company and its present or former
directors shall not be deemed a representation of the Company or Indemnitee)
or
(ii) any other party to the Proceeding giving rise to a claim for
indemnification or advancement of expenses hereunder. Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee
in
an action to determine Indemnitee’s rights under this Agreement.
(b) If
the
determination is to be made by Independent Counsel, such Independent Counsel
shall be selected as provided in this Section
4.02(b).
If a
Change in Control shall not have occurred, the Independent Counsel shall be
selected by the Board (and shall be reasonably acceptable to Indemnitee), and
the Company shall give written notice to Indemnitee advising him of the identity
of the Independent Counsel so selected. If a Change in Control shall have
occurred, the Independent Counsel shall be selected by Indemnitee and be
reasonably acceptable to the Company (unless Indemnitee shall request that
such
selection be made by the Board, in which event the preceding sentence shall
apply), and Indemnitee shall give written notice to the Company advising it
of
the identity of the Independent Counsel so selected. If, within 20 days after
receipt by the Company of a request for indemnification pursuant to Section
4.01(b),
no
Independent Counsel shall have been selected and not objected to, either the
Company or Indemnitee may petition a court of competent jurisdiction (or, at
Indemnitee’s option pursuant to Section
5.01,
an
arbitration) for resolution of any objection which shall have been made to
the
selection of Independent Counsel and/or for the appointment of another person
as
Independent Counsel, and the person with respect to whom all objections are
so
resolved or the person so appointed shall act as Independent Counsel. The
Company agrees to pay the reasonable fees and expenses of any Independent
Counsel appointed pursuant to this Section and to indemnify such person against
any and all expenses, claims, liabilities and damages arising out of or relating
to this Agreement or its engagement pursuant hereto. Upon the due commencement
of any judicial proceeding pursuant to Section
5.01(a)
of this
Agreement, the Independent Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the applicable standards
of
professional conduct then prevailing).
(c) The
determination with respect to Indemnitee’s entitlement to indemnification shall,
to the extent practicable, be made pursuant to the foregoing provisions of
this
Section
4.02
not
later than 30 calendar days after receipt by the Company of a written demand
on
the Company for indemnification (which written demand shall include such
documentation and information as is reasonably available to Indemnitee and
is
reasonably necessary to determine whether and to what extent Indemnitee is
entitled to indemnification). The body or person making the determination with
respect to Indemnitee’s entitlement to indemnification shall notify Indemnitee
of such written determination no later than two business days
thereafter.
7
(d) If
it is
determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within 20 days after such determination.
Section
4.03 Presumptions
and Burdens of Proof; Effect of Certain Proceedings.
(a) In
making
any determination as to Indemnitee’s entitlement to indemnification hereunder,
Indemnitee shall be entitled to a presumption that he is entitled to
indemnification under this Agreement if Indemnitee has submitted a request
for
indemnification in accordance with Section
4.01(b),
and the
Company shall have the burdens of coming forward with evidence and of persuasion
to overcome that presumption.
(b) The
termination of any Proceeding or of any claim, issue or matter therein by
judgment, order, settlement or conviction, or upon a plea of nolo contendere
or
its equivalent, shall not of itself create a presumption that Indemnitee did
not
meet any particular standard of conduct or have any particular belief or that
a
determination has been made that imdemnification is not permitted pursuant
to
this Agreement.
(c) For
purposes of any determination of good faith, Indemnitee shall be deemed to
have
acted in good faith if Indemnitee’s action is based on the records or books of
account of the Company or other Enterprise, as applicable, including financial
statements, or on information supplied to Indemnitee by the officers of such
entity in the course of their duties, or on the advice of legal counsel for
such
entity or on information or records given or reports made to such entity by
an
independent certified public accountant, appraiser or other expert selected
with
reasonable care by such entity. The provisions of this Section
4.03(c)
shall
not be deemed to be exclusive or to limit in any way other circumstances in
which Indemnitee may be deemed or found to have met the applicable standard
of
conduct to be indemnified pursuant to this Agreement.
(d) The
knowledge or actions or failure to act of any other director, officer, employee
or agent of the Company or other Enterprise, as applicable, shall not be imputed
to Indemnitee for purposes of determining Indemnitee’s right to indemnification
under this Agreement.
(e) If
a
determination as to Indemnitee’s entitlement to indemnification shall not have
been made pursuant to this Agreement within 60 days after receipt by the Company
of the request therefor or disposition of the matter that is the subject of
the
request for indemnification, the requisite determination of entitlement to
indemnification shall be deemed to have been made in favor of Indemnitee, and
Indemnitee shall be entitled to such indemnification, absent a misstatement
of a
material fact in the information provided by Indemnitee pursuant to Section
4.01(b)
and
Section
4.02(a)
or an
omission of a material fact necessary in order to make the information provided
not misleading; provided that such 60-day period may be extended for a
reasonable time, not to exceed an additional 30 days, if the person or persons
making the determination in good faith requires such additional time to obtain
or evaluate any documentation or information relating thereto.
8
ARTICLE
5
RIGHTS
TO
ADJUDICATION OF ADVERSE DETERMINATION, ETC.
Section
5.01 Adjudication
or Arbitration.
(a) Indemnitee
shall be entitled to an adjudication (by a court of competent jurisdiction
or,
at Indemnitee’s option, through an arbitration conducted by a single arbitrator
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association) of any determination pursuant to Section
4.02
that
Indemnitee is not entitled to indemnification under this Agreement. Any such
adjudication shall be conducted in all respects as a de novo trial or
arbitration on the merits, and any prior adverse determination shall not be
referred to or introduced into evidence, create a presumption that Indemnitee
is
not entitled to indemnification or advancement of expenses, be a defense or
otherwise adversely affect Indemnitee. In any such judicial proceeding or
arbitration, the provisions of Section
4.03
(including the presumption in favor of Indemnitee and the burdens on the
Company) shall apply.
(b) Indemnitee
shall also be entitled to an adjudication (by a court of competent jurisdiction
or, at Indemnitee’s option, through an arbitration as described above) of any
other disputes under this Agreement.
(c) If
a
determination shall have been made pursuant to Section
4.02
that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant
to
this Section
5.01,
absent
a misstatement of a material fact in the information provided by Indemnitee
pursuant to Section
4.01(b)
and
Section
4.02(a)
or an
omission of a material fact necessary in order to make the information provided
not misleading.
(d) In
connection with any judicial proceeding or arbitration commenced pursuant to
this Section
5.01,
the
Company shall not oppose Indemnitee’s right to seek such adjudication, shall be
precluded from asserting that the procedures and presumptions of this Agreement
are not valid, binding or enforceable and shall stipulate in any such court
or
before any such arbitrator that the Company is bound by all of the provisions
of
this Agreement.
ARTICLE
6
DIRECTORS’
AND OFFICERS’ LIABILITY INSURANCE
Section
6.01 D&O
Liability Insurance.
(a) To
the
extent the Company obtains any insurance policies providing liability insurance
(“Liability
Insurance”)
for
directors of the Company in their capacities as directors or in any other
capacities where they are acting for or on behalf of the Company, in respect
of
acts or omissions occurring while serving in any such capacity, Indemnitee
shall
be covered by such insurance policies as in effect from time to time in
accordance with the applicable terms to the maximum extent of the coverage
provided under such policies for any other director.
9
(b) To
the
extent the Company has any such liability insurance policies, the Company shall,
promptly after receiving notice of a Proceeding as to which Indemnitee is a
party or a participant (as a witness or otherwise), give notice of such
Proceeding to the insurers under such policies in accordance with the procedures
set forth in the respective policies and shall thereafter take all necessary
or
desirable actions to cause such insurers to pay, on behalf of Indemnitee, all
amounts payable as a result of such Proceeding in accordance with the terms
of
such policies. The failure or refusal of any such insurer to pay any such amount
shall not affect or impair the obligations of the Company under this
Agreement.
(c) Upon
request by Indemnitee, the Company shall provide to Indemnitee copies of the
Liability Insurance policies as in effect from time to time. The Company shall
promptly notify Indemnitee of any material changes in such insurance coverage.
ARTICLE
7
MISCELLANEOUS
Section
7.01 Nonexclusivity
of Rights.
The
rights of indemnification and advancement of expenses provided by this Agreement
shall not be deemed exclusive of any other rights to which Indemnitee may at
any
time be entitled to under applicable law, the Company’s certificate of
incorporation or bylaws, any other agreement, any vote of stockholders or
resolution of directors or otherwise. No amendment, alteration or repeal of
this
Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his Corporate Status prior to such amendment, alteration
or
repeal. To the extent that a change in Delaware law, whether by statute or
judicial decision, permits greater indemnification or advancement of expenses
than would be afforded currently under this Agreement, it is the intent of
the
parties hereto that Indemnitee shall be entitled under this Agreement to the
greater benefits so afforded by such change. No right or remedy herein conferred
is intended to be exclusive of any other right or remedy, and every right and
remedy shall be cumulative and in addition to every other right and remedy
given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder or otherwise shall
not
prevent the concurrent assertion or employment of any other right or
remedy.
Section
7.02 Subrogation,
etc.
(a) In
the
event of any payment under this Agreement, the Company shall be subrogated
to
the extent of such payment to all of the rights of recovery of Indemnitee,
who
shall execute all papers required and take all actions necessary to secure
such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
(b) The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder (or for which advancement is provided
hereunder) if and to the extent that Indemnitee has otherwise actually received
such payment under any insurance policy or otherwise.
10
(c) The
Company’s obligation to indemnify or advance expenses hereunder to Indemnitee
who is or was serving at the request of the Company as a director, officer,
employee or agent of any other Enterprise shall be reduced by any amount
Indemnitee has actually received as indemnification or advancement of expenses
from such Enterprise.
Section
7.03 Contribution.
To the
fullest extent permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to Indemnitee for any reason whatsoever,
the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount
incurred by Indemnitee or on his behalf, whether for Liabilities and/or Expenses
in connection with a Proceeding or other expenses relating to an indemnifiable
event or transaction under this Agreement, in such proportion as is deemed
fair
and reasonable in light of all of the circumstances of such action, suit or
other proceeding in order to reflect (i) the relative benefits received by
the
Company and Indemnitee as a result of the event(s) and/or transaction(s) giving
rise to such action, suit or other proceeding; and/or (ii) the relative fault
of
the Company (and its directors, officers, employees and agents) and Indemnitee
in connection with such event(s) and/or transaction(s).
Section
7.04 Amendment.
This
Agreement may not be modified or amended except by a written instrument executed
by or on behalf of each of the parties hereto.
Section
7.05 Waivers.
The
observance of any term of this Agreement may be waived (either generally or
in a
particular instance and either retroactively or prospectively) only by a writing
signed by the party against which such waiver is to be asserted. Unless
otherwise expressly provided herein, no delay on the part of any party hereto
in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party hereto of any right,
power or privilege hereunder operate as a waiver of any other right, power
or
privilege hereunder nor shall any single or partial exercise of any right,
power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.
Section
7.06 Expenses.
(a) The
Company shall pay all costs and expenses (including fees and expenses of
counsel) incurred by the Company and Indemnitee in connection with the
preparation of this Agreement.
(b) The
Company shall indemnify and hold Indemnitee harmless from any and all costs
and
expenses (including fees and expenses of counsel) actually and reasonably
incurred by Indemnitee or on his behalf in seeking (whether through a judicial
proceeding or arbitration (including any appeal resulting therefrom) or
otherwise) to enforce any rights against the Company for indemnification or
advancement of expenses (whether under this Agreement or otherwise) or to
recover under any liability insurance policy maintained by any person for the
benefit of Indemnitee in connection with the performance of his duties for
or on
behalf of the Company, in each case, whether or not Indemnitee is successful
(in
whole or in part) with respect to his claims. The Company shall pay (or
reimburse Indemnitee for the payment of) any such costs or expenses within
20
days after receipt by the Company of a written request for the payment of such
amounts, which request may be delivered to the Company at such time or from
time
to time as Indemnitee deems appropriate in his sole discretion (whether prior
to
or after final disposition of any such matter). Indemnitee shall have no
obligation to reimburse any amounts paid by the Company pursuant to this
Section
7.06(b).
11
Section
7.07 Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the matters covered herein and supersedes all prior oral or written
understandings or agreements with respect to the matters covered herein. This
Section
7.07
shall
not be construed to limit any other rights Indemnitee may have under the
Company’s certificate of incorporation or bylaws, applicable law or otherwise.
Section
7.08 Severability.
If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including, without
limitation, each portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby and shall remain enforceable to the fullest extent permitted by law;
(b)
such provision or provisions shall be deemed reformed to the extent necessary
to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall
be
construed so as to give effect to the intent manifested thereby.
Section
7.09 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) if delivered
by
hand or by courier and receipted for by the party to whom said notice or other
communication shall have been directed, (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 or (c) if sent by facsimile transmission and fax confirmation
is
received, on the next business day following the date on which such facsimile
transmission was sent. Addresses for notice to either party are as shown on
the
signature page of this Agreement, or such other address as any party shall
have
given by written notice to the other party as provided above.
Section
7.10 Binding
Effect.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve as a director of the Company, and the Company acknowledges that
Indemnitee is relying upon this Agreement in serving as a director of the
Company.
(b) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors and permitted 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, heirs, executors, administrators or other successors. The Company
shall
require and cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all or substantially all or a substantial part
of
the business or assets of the Company, by written agreement in the form and
substance reasonably satisfactory to Indemnitee, expressly to assume and agree
to perform this Agreement in the manner and to the same extent that the Company
would be required to perform if no such succession had taken place.
12
(c) The
indemnification and advancement of expenses provided by this Agreement shall
continue as to a person who has ceased to be a director, officer, employee
or
agent or is deceased and shall inure to the benefit of the heirs, executors,
administrators or other successors of the estate of such person.
Section
7.11 Governing
Law.
This
Agreement and the legal relations among the parties hereto shall be governed
by,
and construed and enforced in accordance with, the laws of the State of
Delaware, without regard to its conflict of laws rules.
Section
7.12 Consent
To Jurisdiction.
Except
with respect to any arbitration commenced by Indemnitee pursuant to Section
5.01,
the
Company and Indemnitee hereby irrevocably and unconditionally (i) agree that
any
action, suit or other proceeding arising out of or in connection with this
Agreement shall be brought only in the Delaware Chancery Court and any court
to
which an appeal may be taken in such action, suit or other proceeding (the
“Delaware
Court”),
and
not in any other state or federal court in the United States of America or
any
court in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action, suit or other proceeding
arising out of or in connection with this Agreement, (iii) waive any objection
to the laying of venue of any such action, suit or other proceeding in the
Delaware Court, and (iv) waive, and agree not to plead or to make, any claim
that any such action, suit or other proceeding brought in the Delaware Court
has
been brought in an improper or inconvenient forum.
Section
7.13 Headings.
The
Article and Section headings in this Agreement are for convenience of reference
only, and shall not be deemed to alter or affect the meaning or interpretation
of any provisions hereof.
Section
7.14 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
for
all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement. Only one such counterpart signed by
the
party against whom enforceability is sought needs to be produced to evidence
the
existence of this Agreement.
Section
7.15 Use
of Certain Terms.
As used
in this Agreement, the words “herein,” “hereof,” and “hereunder” and other words
of similar import refer to this Agreement as a whole and not to any particular
paragraph, subparagraph, section, subsection, or other subdivision. Whenever
the
context may require, any pronoun used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns, pronouns and verbs shall include the plural and vice versa.
13
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered to be
effective as of the date first above written.
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Memry
Corporation
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By:
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Name:
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Title:
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Address:
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Facsimile:
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Attention:
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With
a copy to:
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Xxxx
Xxxxx & Xxxxxxx LLP
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000
Xxxxx Xxxxxx, 00xx Xxxxx
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Xxxxxxxx,
XX 00000
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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Attention:
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Xxxxx
X. Xxxxx
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Address:
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Facsimile:
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With
a copy to:
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Address:
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Facsimile:
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Attention:
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14
