Exhibit 10.63
INDEMNIFICATION AGREEMENT
This Agreement is made as of the
day of March 2006, by and between
StockerYale, Inc., a Massachusetts corporation (the
“Corporation), and
(“Indemnitee”), a director and/or officer of the
Corporation.
WHEREAS, it is essential to the
Corporation to retain and attract as directors and officers the
most capable persons available, and
WHEREAS, the substantial increase in
corporate litigation subjects directors and officers to expensive
litigation risks at the same time that the availability of
directors’ and officers’ liability insurance has been
severely limited, and
WHEREAS, it is now and has always
been the express policy of the Corporation to indemnify its
directors and officers so as to provide them with the maximum
possible protection permitted by law, and
WHEREAS, Indemnitee may not regard
the protection available under the Corporation’s Restated
Articles of Organization and insurance as adequate in the present
circumstances, and may not be willing to serve or continue to serve
as a director or officer without adequate protection,
and
WHEREAS, the Corporation desires
Indemnitee to serve, or continue to serve, as a director or officer
of the Corporation.
NOW THEREFORE, the Corporation and
Indemnitee do hereby agree as follows:
1. Agreement to Serve .
Indemnitee agrees to serve or continue to serve as a director or
officer of the Corporation for so long as Indemnitee is duly
elected or appointed or until such time as Indemnitee tenders
Indemnitee’s resignation in writing.
2. Definitions . As used in
this Agreement:
(a) The term
“Proceeding” shall include any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, and any claim which could be the
subject of a Proceeding.
(b) The term “Corporate
Status” shall mean the status of a person who is or was a
director or officer of the Corporation, or is or was serving, or
has agreed to serve, at the request of the Corporation, as a
director, officer, employee, trustee, partner or other agent of
another organization or other enterprise.
(c) The term “Expenses”
means (i) all expenses (including attorneys’ fees and
disbursements) actually and reasonably incurred in defense of a
Proceeding, in being a witness in a Proceeding, or in successfully
seeking indemnification under this Agreement, (ii) such
expenses incurred in connection with a Proceeding initiated by
Indemnitee as may be approved by the Board of Directors, and
(iii) any judgments, awards, fines or penalties paid by
Indemnitee in connection with a Proceeding or reasonable amounts
paid in settlement of a Proceeding.
(d) References to “other
enterprise” shall include employee benefit plans; references
to “fines” shall include any taxes or penalties
assessed with respect to any employee benefit plan; references to
“serving at the request of the Corporation” shall
include any service as a director, officer, employee or agent of
the Corporation 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 Corporation” as referred to in this Agreement.
3. Indemnification in Third-Party
Proceedings . Except as limited by law, the Corporation shall
indemnify Indemnitee in accordance with the provisions of this
Paragraph 3 if Indemnitee was or is a party to or threatened
to be made a party to or otherwise involved in any Proceeding
(other than a Proceeding by or in the right of the Corporation to
procure a judgment in its favor or a Proceeding alleging that
Indemnitee received an improper personal benefit) by reason of the
Indemnitee’s Corporate Status or by reason of any action
alleged to have been taken or omitted in connection therewith,
against all Expenses actually and reasonably incurred by Indemnitee
or on his behalf in connection with such Proceeding, if Indemnitee
acted in good faith and in a manner which Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the
Corporation and, with respect to of any criminal Proceeding, had no
reasonable cause to believe that his conduct was unlawful. The
termination of any Proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that
Indemnitee did not act in good faith and in a manner which the
Indemnitee reasonably believed to be in, or not opposed to, the
best interests of the Corporation, and, with respect to any
criminal Proceeding, had reasonable cause to believe that his
conduct was unlawful.
4. Indemnification in Proceedings
by or in the Right of the Corporation . Except as limited by
law, the Corporation shall indemnify Indemnitee in accordance with
the provisions of this Paragraph 4 if Indemnitee is a party to
or threatened to be made a party to or otherwise involved in any
Proceeding by or in the right of the Corporation to procure a
judgment in its favor by reason of the Indemnitee’s Corporate
Status or by reason of any action alleged to have been taken or
omitted in connection therewith or a Proceeding alleging that
Indemnitee received an improper personal benefit, against all
Expenses actually and reasonably incurred by Indemnitee or on his
behalf in connection with such Proceeding, if he acted in good
faith and in a manner which he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, except that no
indemnification shall be made under this Paragraph 4 if
Indemnitee shall have been adjudged to be liable to the Corporation
in such Proceeding or, in the absence of such an adjudication, if
he is determined to be ineligible for indemnification under the
circumstances pursuant to Paragraph 9 of this Agreement; provided,
however, that indemnification of Expenses incurred by Indemnitee in
successfully defending a Proceeding alleging that he received an
improper personal benefit as a result of his Corporate Status may
be paid if and to the extent authorized by the Board of
Directors.
2
5. Exceptions to Right of
Indemnification . Notwithstanding anything to the contrary in
this Agreement, except as set forth in Paragraph 10, the
Corporation shall not indemnify the Indemnitee in connection with a
Proceeding (or part thereof) initiated by the Indemnitee unless the
initiation thereof was approved by the Board of Directors of the
Corporation. Notwithstanding anything to the contrary in this
Agreement, the Corporation shall not indemnify the Indemnitee to
the extent the Indemnitee is reimbursed from the proceeds of
insurance, and in the event the Corporation makes any
indemnification payments to the Indemnitee and the Indemnitee is
subsequently reimbursed from the proceeds of insurance, the
Indemnitee shall promptly refund such indemnification payments to
the Corporation to the extent of such insurance
reimbursement.
6. Indemnification of Expenses of
Successful Party . Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful, on
the merits or otherwise, in defense of any Proceeding or in defense
of any claim, issue or matter therein, Indemnitee shall be
indemnified against all Expenses incurred by him or on his behalf
in connection therewith. Without limiting the foregoing, if any
Proceeding or any claim, issue or matter therein is disposed of, on
the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to the
Indemnitee, (ii) an adjudication that the Indemnitee was
liable to the Corporation, (iii) a plea of guilty or
nolo contendere by the Indemnitee, (iv) an
adjudication that the Indemnitee did not act in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and (v) with respect to any
criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe his conduct was unlawful, the
Indemnitee shall be considered for the purposes hereof to have been
wholly successful with respect thereto.
7. Notification and Defense of
Claim . As a condition precedent to his right to be
indemnified, the Indemnitee must notify the Corporation in writing
as soon as practicable of any Proceeding for which indemnity will
or could be sought by him and provide the Corporation with a copy
of any summons, citation, subpoena, complaint, indictment,
information or other document relating to such Proceeding with
which he is served. With respect to any Procee
