DIRECTOR’S
INDEMNIFICATION AGREEMENT
THIS AGREEMENT
is made as of __________, between EMS Technologies, Inc., a Georgia
corporation (“Corporation”), 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
(b) With
respect to any suit in which final judgment is render
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