EXHIBIT 10(a)
INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is made this 13th day of February, 1996, by
and between EIP MICROWAVE, INC. (the "Company") and Michael E. Johnson
("Indemnitee").
R E C I T A L S:
A. The Company acknowledges Indemnitee's reluctance to serve the
Company as a director or agent without assurances that adequate liability
indemnification is and will continue to be provided;
B. The Company desires to attract and retain the services of Indemnitee
by entering into an agreement providing for broad indemnification of
Indemnitee by the Company;
C. The Company has been advised that it may provide such
indemnification under and in accordance with Delaware law by entering into an
agreement providing for broad indemnification of Indemnitee by the Company.
D. The stockholders of the Company have approved an agreement providing
for the indemnification of directors of the Company to the maximum extent
authorized by Delaware law in accordance with Section 145(f) of the Delaware
General Corporation Law; and
E. The Company desires to enter into this Agreement with Indemnitee to
provide Indemnitee with indemnification in accordance with the terms hereof.
NOW, THEREFORE, the Company and Indemnitee hereby agree as follows:
1. Indemnification.
1.1 Subject to Section 1.3 hereof, the Company hereby agrees to
hold harmless and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings, whether
civil, criminal, administrative or investigative, involving Indemnitee by
reason of the fact that he is or was a director or agent of the Company (or
by reason of the fact that he is or was serving at the request of the Company
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including all expenses
(including attorneys' fees) judgments, fines and amounts paid in settlement,
to the broadest and maximum extent permitted by Delaware law.
1.2 Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1 shall:
(i) extend to and fully cover any Loss (as hereinafter defined),
whether such Claim is made against Indemnitee, individually or jointly
with others, by reason of any Wrongful Act (as hereinafter defined) made
in Indemnitee's capacity as a director and/or agent,
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(ii) include all rights of indemnification provided to Indemnitee
under the existing provisions of the Bylaws of the Company, and
(iii) include all such additional rights of indemnification as might
possibly be provided to Indemnitee under the non-exclusivity of Article 9,
Section 3 of the Bylaws of the Company or Section 145(f) of the Delaware
General Corporation Law and which shall not be violative of Section 145
of the Delaware General Corporation Law or contrary to the public policy
of the State of Delaware.
1.3 Nothing in this Section 1 shall be deemed to provide any
indemnity by the Company to Indemnitee on account of any matter:
(i) in respect to remuneration paid to Indemnitee if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law, or
(ii) for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company within the meaning of Section 16(b)
of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any federal, state or local statutory law, or
(iii) brought about or contributed to by the dishonesty of Indemnitee
if a final judgment or other final adjudication adverse to Indemnitee
establishes that acts of active and deliberate dishonesty were committed
or attempted by Indemnitee with actual dishonest purpose and intent and
were material to the adjudication, or
(iv) which is based on or attributable to Indemnitee having gained
any personal profit or disadvantage to which he was not entitled, in the
event that a final judgment or other final adjudication adverse to
Indemnitee establishes that Indemnitee in fact gained such personal
profit or other advantage to which he was not entitled, or
(v) in respect of which any final decision by a court having
jurisdiction of the matter shall determine that indemnification is not lawful.
1.4 The Company shall pay the expenses incurred by Indemnitee in
defending any civil or criminal action, suit or proceeding in advance of the
final disposition of such action, suit or proceeding, provided that the
Company receives an undertaking by or on behalf of Indemnitee to repay such
amounts advanced if it is ultimately determined that he is not entitled to be
indemnified by the Company as authorized under this Agreement. The Company
shall perform its obligation under this Section 1.4 until such time as it may
be determined that Indemnitee is not entitled to indemnification by virtue of
one or more of the exclusions set forth in Section 1.3 hereof.
1.5 The reference in Section 1.1. hereof to Delaware law is to
Delaware law as the same exists from time to time but, in the case of any
amendment to or change in Delaware law, only to the extent that such
amendment or change permits the Company to provide broader
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or greater rights of indemnification than is permitted to the Company prior
to such amendment or change.
2. DEFINITIONS.
2.1 LOSS. The term "Loss" shall mean any amount Indemnitee is
obligated or asserted to be obligated to pay in respect to his legal
liability, whether actual or asserted, for a Wrongful Act, and shall include
damages, judgments, settlements and costs, attorneys' fees, charges and
expenses incurred in the defense of Claims.
2.2 WRONGFUL ACT. The term "Wrongful Act" shall mean any breach of
duty, neglect, error, misstatement, misleading statement, omission or other
act done or wrongfully attempted by Indemnitee so alleged by any claimant or
any other matter claimed against Indemnitee by reason of Indemnitee being a
director, officer, employee or agent.
2.3 SUBSIDIARY. The term "Subsidiary" shall mean any corporation
of which at least 50% of the stock is owned by the Company or by any
Subsidiary.
2.4 CLAIM. The term "Claim" shall mean any suit, action,
proceeding, investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or with respect
to Indemnitee and/or the property of Indemnitee either by or in the right of
the Company or by or in the right of a party other than the Company.
3. SCOPE OF INDEMNIFICATION. This Agreement and the indemnification
provided herein:
3.1 Shall apply to Indemnitee in his capacity or capacities as a
director, officer, employee or agent, or the like, of (i) the Company, (ii) any
Subsidiary or former Subsidiary, or any Subsidiary which is hereafter acquired
or created by the Company, and (iii) corporations, partnerships, associations
and entities other than the Company and its Subsidiaries where Indemnitee is
directed or requested to serve by the Company;
3.2 Shall be irrevocable and perpetual, and, subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after the date hereof,
whether made or incurred prior to or after the termination of Indemnitee's
services to the Company in the capacities described in Section 3.1 above; and
3.3 Subject to Section 1.3 hereof, shall cover Losses arising from any
Claims made against the estate, heirs, legal representative or assigns of
Indemnitee.
3.4 The Company shall not be liable under this Agreement to make
any payment in connection with any Claim made against the Indemnitee for
which payment is actually made to the Indemnitee under a valid and
collectible insurance policy, except in respect of any excess beyond the
amount of payment under such insurance.
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4. AGREEMENT TO BE LIBERALLY CONSTRUED. The purpose of this
Agreement is to induce Indemnitee either to serve the Company in one or more
of the capacities described in Section 3.1 hereof, or to induce Indemnitee to
continue to serve in one or more such capacities. The Company acknowledges
that, but for this Agreement and the expectation by Indemnitee that the
Company will perform each of its obligations hereunder, Indemnitee may not
consent to serve or to continue to serve the Company in such capacities.
Therefore, it is the intention of the Company and the Indemnitee that this
Agreement be liberally construed so as to achieve its purpose of, subject to
Section 1.3 hereof, protecting Indemnitee from and against Losses arising
from Wrongful Acts. The Company agrees that it will not do or fail to do any
act which would or might prevent or hinder the performance by the Company of
its obligations under this Agreement.
5. AGREEMENT NOT EXCLUSIVE. The rights and benefits of
Indemnitee, and the obligations of the Company, under this Agreement shall be
in addition to, and shall not supersede or be in lieu of, the provisions (if
any) relating to the indemnification of Indemnitee by the Company in the
Certificate of Incorporation, Bylaws or resolutions of the Board of Directors
of the Company; the provisions of policies of insurance of the Company; the
provisions of policies of insurance or indemnification arrangements provided
by persons or entities other than the Company; or applicable law.
Notwithstanding anything to the contrary in this Agreement, the Company
agrees to defend, indemnify and hold harmless Indemnitee to the full extent
permitted from time to time by applicable law.
6. SEVERABILITY. Nothing in this Agreement is intended to require
or shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. In the event any provision of this Agreement is
finally determined by the courts to require the Company to do or fail to do
such an act, such provision shall be limited or modified in its application
to the minimum extent necessary to avoid a violation of law, and as so
limited or modified such provision and the balance of this Agreement shall be
enforceable in accordance with their terms.
7. CHOICE OF LAW. This Agreement is made and entered into
pursuant to Delaware General Corporation Law, and this Agreement shall be
governed by, and its provisions construed in accordance with, the laws of the
State of Delaware.
8. CHOICE OF FORUM. The Company agrees that any action by or on
behalf of the Company under this Agreement or to enforce or interpret any
provision of this Agreement shall be brought only in the state courts of the
State of Delaware, and in no other court; and that if any action is
instituted in any court by Indemnitee under this Agreement or to enforce or
interpret any of its terms, the Company hereby agrees, and will at such time
agree, to the exclusive jurisdiction and exclusive venue of such court, and
to personal service upon the Company by such court, for the purpose of such
action, and will not attempt to transfer or remove such action to another
court.
9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the Company and its successors and assigns, and shall inure to the benefit of
Indemnitee's estate, heirs, legal representatives and assigns.
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10. ATTORNEYS' FEES. In the event that any action is instituted by
Indemnitee under this Agreement or to enforce or interpret any of the terms
of this Agreement, Indemnitee shall be entitled to be paid all court costs
and expenses, including attorneys' fees, incurred by Indemnitee with respect
to such action, unless as a part of such action the court determines that
each of the material assertions made by Indemnitee as a basis of such action
was not made in good faith or were frivolous. In the event any action is
instituted by or in the name of the Company under this Agreement or to
enforce or interpret any of the terms of this Agreement, Indemnitee shall be
entitled to be paid all court costs and expenses, including reasonable
attorneys' fees, incurred by Indemnitee in defense of such action (including
with respect to Indemnitee's counterclaims and cross claims made in such
action), unless as a part of such action the court determines that each of
Indemnitee's material defenses to such action was made in bad faith or was
frivolous.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
EIP MICROWAVE, INC.
By: /s/ John F. Bishop
---------------------------------
John F. Bishop
President
AGREED TO AND ACCEPTED BY INDEMNITEE:
/s/ Michael E. Johnson
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Michael E. Johnson
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