Exhibit 10.16
EMS TECHNOLOGIES, INC.
DIRECTOR'S
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of July 31, 1998, between EMS Technologies, Inc., a
Georgia corporation ("Corporation'(3)), and [ ]("Director")
WHEREAS, Director serves as a member of the Board of Directors
of the Corporation and in such capacity is expected to perform a
valuable service; and
WHEREAS, the Corporation's Bylaws (the "Bylaws") provide for
the
indemnification of the directors of the Corporation pursuant to
Sections 14-2-850 through 14-2-856 of the Georgia Business
Corporation Code, as amended to date (the "State Statute"); and
WHEREAS, the Bylaws and State Statute specifically contemplate
that contracts may be entered into between the Corporation and the
members of its Board of Directors with respect to indemnification of
such directors; and
WHEREAS, in accordance with the authorization provided by the
State Statute and Bylaws, the Corporation may from time to time
purchase and maintain a policy of director and officer liability
insurance ("D & 0 Insurance"), covering certain liabilities that may be
incurred by its directors and officers in the performance of their
duties to the Corporation; and
WHEREAS, the terms and availability of D & 0 Insurance present
questions concerning the adequacy and reliability of the protection
afforded to directors thereby; and
WHEREAS, in order to provide to Director assurances with
respect to the protection provided against liabilities that he may
incur in the performance of his duties to the Corporation, and to
thereby induce Director to serve as a member of its Board of Directors,
the Corporation, by its Board of Directors acting pursuant to
shareholder authorization, has determined and agreed to enter into this
contract with Director.
NOW, THEREFORE, in consideration of Director's continued
service as a director from the date hereof until such service
terminates as provided in the Bylaws, the parties hereto agree as
follows:
1. Maintenance of Insurance.
(a) Subject only to the provisions of Section 1(b) hereof, the Corporation
hereby agrees that, so long as Director shall continue to serve as a
director of the Corporation, and thereafter so long as Director shall
be subject to any possible claim or threatened, pending or completed
action, suit or proceeding, whether civil, criminal or investigative,
by reason of the fact that Director was a director of the Corporation
(or while a director served in any other capacities with or at the
request of the Corporation), the Corporation will purchase and maintain
in effect for the benefit of Director one or more valid, binding and
enforceable policy or policies of D & 0 Insurance providing coverage on
terms and conditions that are commercially reasonable and available
from time to time.
(b) The Corporation shall not be required to maintain said policy or
policies of D & 0 Insurance in effect if said insurance is not
reasonably available or if, in the reasonable business judgment of the
Board of Directors, either (i) the premium cost for such insurance is
substantially disproportionate to the amount of coverage, or (ii) the
coverage provided by such insurance is so limited by exclusions that
there is insufficient benefit from such insurance.
2. Board-Authorized Indemnification. The
Corporation hereby agrees to hold harmless and indemnify
Director to the full extent that the State Statute, or any
amendment thereof or other statutory provision adopted after
the date hereof, authorizes such indemnification by action of
the Board of Directors without shareholder approval. Such
indemnification, and the conditions and limitations thereon
set forth in the State Statute shall not in any respect limit,
condition or otherwise restrict the indemnification set forth
in Section 3 hereof.
3. Shareholder-Authorized Indemnification.
Subject only to the exclusions set forth in Section 4 hereof,
and in addition to the indemnity specified in Section 2 hereof
(but without duplication of payments with respect to
indemnified amounts), the Corporation hereby further agrees to
hold harmless and indemnify Director against any and all
expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
Director in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including an action by or in
the right of the Corporation) to which Director is, was or at
any time becomes a party, or is threatened to be made a party,
by reason of the fact that Director is or was a director of
the Corporation, or while a director was an officer, employee
or agent of the Corporation or served at the request of the
Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise.
4. Limitations on Shareholder-Authorized Indemnity. No
indemnity pursuant to Section 3 hereof shall be paid
by the Corporation:
(a) With respect to any proceeding in which Director is adjudged, by final
judgment not subject to further appeal, liable to the Corporation or is
subjected to injunctive relief in favor of the Corporation:
(i) for any appropriation, in violation of his
duties, of any business opportunity of the Corporation;
(ii) for acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law;
(iii) for the types of liabilities set forth in Section
14-2-832 of the Georgia Business Corporation Code; or
(iv) for any transaction from which Director received an
improper personal benefit;
(b) With respect to any suit in which final judgment is rendered against
Director for an accounting of profits, made from the purchase or sale
by Director of securities of the Corporation, pursuant to the
provisions of Section 16(b) of the Securities and Exchange Act of 1934,
as amended, or similar provisions of any federal, state or local
statutory law, or on account of any payment by Director to the
Corporation in respect of any claim for such an accounting; or
(c) If a final decision by a Court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
5. Contribution. If the indemnification
provided in Sections 2 and 3 is unavailable and may not be
paid to Director for any reason other than those set forth in
paragraph (b) of Section 4, then in respect of any threatened,
pending or completed action, suit or proceeding in which the
Corporation is jointly liable with Director (or would be if
joined in such action, suit or proceeding), the Corporation
shall contribute to the amount of expenses, judgments, fines
and settlements paid or payable by Director in such proportion
as is appropriate to reflect (i) the relative benefits
received by the Corporation on the one hand and Director on
the other hand from the transaction from which such action,
suit or proceeding arose, and (ii) the relative fault of the
Corporation on the one hand and of Director on the other in
connection with the events which resulted in such expenses,
judgments, fines or settlement amounts, as well as any other
relevant equitable considerations. The relative fault of the
Corporation on the one hand and of the Director on the other
shall be determined by reference to, among other things, the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent the circumstances resulting
such expenses, judgments, fines or settlement amounts. The
Corporation agrees that it would not be just and equitable if
contribution pursuant to this Section 5 were determined by pro
rata allocation or any other method of allocation that does
not take account of the foregoing equitable considerations.
6. Continuation of Obligations. All agreements
and
obligations of the Corporation contained herein shall continue
during the period Director is a director of the Corporation,
and shall continue thereafter for so long as Director shall be
subject to any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal
or investigative, by reason of the fact that Director was a
director of the Corporation or, while a director, served in
any other capacity referred to herein.
7. Notification and Defense of Claim. Promptly after receipt by Director of
notice of the commencement of any action, suit or proceeding, Director will, if
a claim in respect thereof is to be made against the Corporation under this
Agreement (other than under Section 2 hereof), notify the Corporation of the
commencement thereof, but the omission so to notify the Corporation will not
relieve it from any liability which it may have to Director otherwise than under
this Agreement. With respect to any such action, suit or proceeding as to which
Director so notifies the Corporation:
(a) The Corporation will be entitled to participate therein at its
own expense; and
(b) Subject to Section 8 hereof, and if Director shall have provided his
written affirmation of this good faith belief that his conduct did not
constitute behavior of the kind described in paragraph 4(a) hereof, the
Corporation may assume the defense thereof.
After notice from the Corporation to Director of its election so to assume such
defense, the Corporation will not be liable to Director under this Agreement
for any legal or other expenses subsequently incurred by Director in
connection with the defense thereof, other than reasonable costs of
investigation or as otherwise provided below. Director shall have the right
to employ his separate counsel in such action, suit or proceeding, but the
fees and expenses of such counsel incurred after notice from the Corporation
of its assumption of the defense thereof shall be at the expense of Director
unless (i) the employment of counsel by Director has been authorized by the
Corporation, (ii) counsel designated by the Corporation to conduct such
defense shall not be reasonably satisfactory to Director, or (iii) the
Corporation shall not in fact have employed counsel to assume the defense of
such action, in each of which cases the fees and expenses of such counsel
shall be at the expense of the Corporation. For the purposes of clause (ii)
above, Director shall be entitled to determine that counsel designated by
the Corporation is not reasonably satisfactory if, among other reasons,
Director shall have been advised by qualified counsel that, because of
actual or potential conflicts of interest in the matter between Director,
other officers or directors similarly indemnified by the Corporation, and/or
the Corporation, representation of Director by counsel designated by the
Corporation is likely to materially and adversely affect Director's interest
or would not be permissible under applicable canons of legal ethics.
The Corporation shall not be liable to indemnify Director under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent.The Corporation shall not settle any action or
claim in any manner which would impose any penalty or limitation on Director
without Director's written consent. Neither the Corporation nor Director will
unreasonably withhold their consent to any proposed settlement.
8. Advancement and Repayment of Expenses. Upon request thereof accompanied by
reasonably itemized evidence of expenses incurred, and by Director's written
affirmation of his good faith belief that his conduct met the standard
applicable to Board-authorized indemnification pursuant to Section 2 hereof, or
did not constitute behavior of the kind described in paragraph 4(a) hereof, the
Corporation shall advance to Director the reasonable expenses (including
attorneys' fees and costs of investigation) incurred by him in defending any
civil or criminal suit, action or proceeding as to which Director is entitled
(assuming an applicable standard of conduct is met) to indemnification pursuant
to this Agreement. Director agrees to reimburse the Corporation for all
reasonable expenses paid by the Corporation, whether pursuant to this Section or
Section 7 hereof, in defending any action, suit or proceeding against Director
in the event and to the extent that it shall ultimately be determined that
Director is not entitled to be indemnified by the Corporation for such expenses
under either Section 2 or Section 3 of this Agreement.
9. Enforcement
(a) The Corporation expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on it hereby in order to
induce Director to serve as a director of the Corporation, and acknowledges that
Director will in the future be relying upon this Agreement in continuing to
serve in such capacity.
(b) In the event Director is required to bring any action to enforce
rights or to collect moneys due under this Agreement and is successful in such
action, the Corporation shall reimburse Director for all of Director's
reasonable fees and expenses in bringing and pursuing such action.
10. Separability. Each of the provisions of this Agreement is a separate and
distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable in whole or in part for any
reason, such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
11. Governing Law; Successors; Amendment and Termination
(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Georgia.
(b) This Agreement shall be binding upon Director and the Corporation, its
successors and assigns, and shall inure to the benefit of Director, his heirs,
personal representatives and assigns and to the benefit of the Corporation, its
successors and assigns.
(c) No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties hereto.
(d) This Agreement supersedes any prior agreement between Director and the
Corporation, or any predecessor of the Corporation, regarding the subject matter
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of
the day and year
first above
written.
EMS TECHNOLOGIES, INC.
__________________________ By: ___________________________
Director Chief Executive Officer