EXECUTIVE OFFICER’S
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is
made as of
, between EMS Technologies, Inc., a Georgia corporation
(“Corporation”), and
(“Officer”).
WHEREAS, Officer serves as an executive officer of the
Corporation and in such capacity is expected to perform a valuable
service; and
WHEREAS, the Corporation’s Bylaws (the
“Bylaws”) permit the Board of Directors to cause the
Corporation to provide for the indemnification of officers of the
Corporation pursuant to Part 5 of Article 8 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 its officers with respect to indemnification of
such persons; 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 Officer thereby; and
WHEREAS, in order to provide to Officer 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 Officer to serve in such capacity, the Corporation
has determined and agreed to enter into this contract with
Officer.
NOW,
THEREFORE, in
consideration of Officer’s continued service as an executive
officer 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
Officer shall continue to serve as an executive officer of the
Corporation, and thereafter so long as Officer 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 Officer was an executive officer of the
Corporation (or while an executive officer 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 Officer 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.
Indemnification . Subject
only to the exclusions set forth in Section 3 hereof, and in
addition to any other indemnity to which Officer may be entitled
under the State Statute or any bylaw, resolution or agreement (but
without duplication of payments with respect to indemnified
amounts), the Corporation hereby agrees to hold harmless and
indemnify Officer against any and all expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by Officer 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 Officer is, was or at any time becomes a
party, or is threatened to be made a party, by reason of the fact
that Officer is or was an executive officer of the Corporation, or
while an executive officer was an 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.
3.
Limitations on Indemnity . No indemnity pursuant to Section 2 hereof
shall be paid by the Corporation:
(a) With
respect to any proceeding in which Officer 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; or
(iii) for
any transaction from which Officer received an improper personal
benefit;
(b) With
respect to any suit in which final judgment is rendered against
Officer for an accounting of profits, made from the purchase or
sale by Officer 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 Officer to the
Corporation in respect of any claim f
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