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Exhibit
10.2
[OFFICER
FORM]
INDEMNIFICATION
AGREEMENT
This INDEMNIFICATION
AGREEMENT (the “ Agreement
” ) made and entered into this
day of
, 2008, by and between eLandia International Inc., a Delaware
corporation (together with its subsidiaries, the “
Company ” ), and
(the “ Indemnitee ”
).
RECITALS:
A. Indemnitee
currently serves an executive officer of the Company.
B. It is essential to
the Company that it be able to retain and attract as directors and
officers the most capable persons available.
C. The substantial
increase in corporate litigation subjects directors and officers of
corporations and others to expensive litigation risks at the same
time that the availability of competent and qualified directors,
officers, employees, consultants, advisers and agents has been
greatly reduced, and the coverage offered by directors’ and
officers’ liability insurance has been severely
limited.
D. The Certificate of
Incorporation and Bylaws of the Company (the “Charter
Documents”) permit the Company to indemnify and advance
expenses to its directors and officers to the fullest extent
permitted under Delaware law, and the Indemnitee has been serving
and continues to serve as an officer of the Company in part in
reliance on the Company’s Charter Documents.
E. In recognition of
Indemnitee’s need for (i) substantial protection against
personal liability based on Indemnitee’s reliance on the
aforesaid Charter Documents, (ii) specific contractual
assurance that the protection promised by the Charter Documents
will be available to Indemnitee (regardless of, among other things,
any amendment to or revocation of the Charter Documents or any
change in the composition of the Board of Directors of the Company
or acquisition transaction relating to the Company), and
(iii) an inducement to provide effective services to the
Company as an officer, the Company wishes to provide in this
Agreement for the indemnification of and the advancing of expenses
to Indemnitee to the extent permitted under Delaware law, the
Charter Documents, and as set forth in this Agreement, and, to the
extent insurance is maintained, to provide for the continued
coverage of Indemnitee under the Company’s directors’
and officers’ liability insurance policies.
F. As a condition to
the Indemnitee’s agreement to continue to serve as an officer
of the Company, the Indemnitee requires that the Indemnitee be
indemnified from liability to the fullest extent permitted by
law.
G. Indemnitee is
relying upon the rights afforded under this Agreement in continuing
Indemnitee’s position as an executive officer of the
Company.
NOW, THEREFORE , in
consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as
follows:
Section 1.
Definitions .
1.1 “
Agreement ” has the meaning set forth in
the preface above.
1.2 “
Another Enterprise ” has the meaning set
forth in § 3.1.
1.3 “
Board ” means the Board of Directors of
the Company.
1.4 “
Company ” has the meaning set forth in
the preface above.
1.5 “
Determination ” has the meaning set
forth in § 4.1.
1.6 “
Disinterested Director ” has the meaning
set forth in § 4.1.
1.7 “
Employment Agreement ” means the
agreement between the Company and the Indemnitee in which the
Indemnitee’s terms of employment are set forth, as
applicable.
1.8 “
Expense Advance ” has the meaning set
forth in § 9.
1.9 “
Expenses ” means any reasonable expense,
including attorneys’ fees, any interest, assessments, or
other charges imposed thereon, any federal, state, local, or
foreign taxes imposed as a result of the actual or deemed receipt
of any payments under this Agreement, and all other costs and
obligations, paid or incurred in connection with investigating,
defending, being a witness in, participating in (including on
appeal), or preparing for any of the foregoing in, any Proceeding
relating to any Indemnifiable Event.
1.10 “
Indemnifiable Event ” means any event or
occurrence that takes place either prior to or after the execution
of this Agreement, related to the fact that Indemnitee is or was a
director or officer of the Company, or while a director or officer
is or was serving at the request of the Company as a director,
officer, employee, trustee, agent, or fiduciary of another foreign
or domestic corporation, partnership, joint venture, employee
benefit plan, trust, or other enterprise, or was a director,
officer, employee, or agent of a foreign or domestic corporation
that was a predecessor corporation of the Company or of another
enterprise at the request of such predecessor corporation, or
related to anything done or not done by Indemnitee in any such
capacity, whether or not the basis of the Proceeding is alleged
action in an official capacity as a director, officer, employee, or
agent or in any other capacity while serving as a director,
officer, employee, or agent of the Company, as described
above.
1.11 “
Indemnitee ” has the meaning set forth
in the preface above.
1.12 “
Losses ” means all Expenses, judgments,
penalties, fines and amounts paid in settlement in connection with
a Proceeding.
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1.13 “
Proceeding ” means any threatened,
pending or completed action, suit, or proceeding or any alternative
dispute resolution mechanism (including an action by or in the
right of the Company), or any inquiry, hearing, or investigation,
whether conducted by the Company or any other party, whether civil,
criminal, administrative, investigative, or other.
Section 2.
Services of Indemnitee .
In consideration of the
Company’s covenants and commitments hereunder, Indemnitee
agrees to his initial employment as an executive officer of the
Company. For avoidance of doubt, this Agreement shall not impose
any obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company and the Company’s
obligations and Indemnitee’s rights under this Agreement are
not conditioned on Indemnitee continuing his service to the Company
for any minimum or fixed period of time.
Section 3.
Agreement to Indemnify .
3.1 Subject to Section 4
hereof, the Company shall indemnify and hold harmless the
Indemnitee from and against any and all Losses incurred or paid by
the Indemnitee in connection with the investigation, defense,
prosecution, settlement or appeal of any Proceeding (other than an
action by or in the right of the Company) and to which the
Indemnitee was or is a party or is threatened to be made a party by
reason of the fact that the Indemnitee is or was an officer,
director, stockholder, employee, consultant, adviser, fiduciary or
agent of the Company, or is or was serving at the request of the
Company as an officer, director, partner, trustee, employee,
adviser, fiduciary, or agent of another corporation, partnership,
joint venture, trust, employee benefit plan, limited liability
company or other enterprise (collectively, “
Another Enterprise ” ), or by reason of
anything done or not done by the Indemnitee in any such capacity or
capacities; provided, however, that the Indemnitee acted in good
faith and in a manner the Indemnitee reasonably believed to be in
or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe the Indemnitee’s conduct was
unlawful.
3.2 Subject to Section 4
hereof, the Company shall indemnify and hold harmless the
Indemnitee from and against any and all Losses, actually and
reasonably incurred or paid by the Indemnitee in connection with
the investigation, defense, prosecution, settlement or appeal of
any Proceeding by or in the right of the Company to procure a
judgment in its favor, and to which the Indemnitee was or is a
party or is threatened to be made a party by reason of the fact
that the Indemnitee is or was an officer, director, stockholder,
employee, consultant, adviser, fiduciary, or agent of the Company,
or is or was serving at the request of the Company as an officer,
director, partner, trustee, employee, adviser, fiduciary, or agent
of Another Enterprise, or by reason of anything done or not done by
the Indemnitee in any such capacity or capacities, provided that
(i) the Indemnitee acted in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company and (ii) no indemnification shall be
made under this Section 3.2 in respect of any Proceeding,
claim, issue or matter as to which the Indemnitee shall have been
adjudged to be liable to the Company or Another Enterprise unless,
and only to the extent that, the court in which such Proceeding was
brought (or any other court of competent jurisdiction (including
the Delaware Court of Chancery)) shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably
entitled to indemnity for such Losses which such court shall deem
proper.
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3.3 Subject to Section 4
hereof, the Company shall indemnify the Indemnitee against Expenses
incurred or paid by the Indemnitee as a result of providing
testimony in any Proceeding (including but not limited to any
action or suit by or in the right of the Company to procure
judgment in its favor), by reason of the fact that the Indemnitee
is or was an officer, director, stockholder, employee, consultant,
adviser, fiduciary, or agent of the Company, or is or was serving
at the request of the Company as an officer, director, partner,
trustee, employee, adviser, fiduciary, or agent of Another
Enterprise.
3.4 Notwithstanding anything
in this Agreement to the contrary, Indemnitee shall not be entitled
to indemnification pursuant to this Agreement in connection with
any Proceeding initiated by Indemnitee against the Company or any
director or officer of the Company unless first authorized by the
Board; provided , however , that this provision shall
not apply to any counterclaim, crossclaim, or third party action
initiated by the Indemnitee in connection with and reasonably
related to a Proceeding not first initiated by the
Indemnitee.
Section 4.
Authorization of Indemnification .
4.1 Any indemnification under
Sections 3.1, 3.2 and 3.3 hereof (unless ordered by a court) shall
be made by the Company only as authorized in the specific case upon
a determination (the “ Determination
” ) that indemnification of the Indemnitee is proper
in the circumstances because the Indemnitee has met the applicable
requirements set forth in Section 3.1, 3.2 and 3.3 hereof, as
the case may be. Subject to Sections 6.6 and 8 of this Agreement,
the Determination and the evaluation and finding as to the
reasonableness of expenses incurred by the Indemnitee shall be made
in the following order of priority:
(i) first, by the Board by
majority vote of the directors who are not named parties to such
action, suit or proceeding (the “ Disinterested
Directors ” ) (even if less than a quorum);
or
(ii) next, by majority vote
of a committee consisting solely of two or more Disinterested
Directors duly designated, for purposes of making a Determination,
by a majority vote of such Disinterested Directors; or
(iii) next, if there are no
Disinterested Directors or a majority vote of the Disinterested
Directors so directs, by any independent legal counsel (who may be
any outside counsel regularly employed by the Company), selected by
a majority vote of the Disinterested Directors (if any) or the
Board (if there are no Disinterested Directors), in a written
opinion by such counsel, which opinion will be addressed to the
Company and delivered to both the Company and the Indemnitee;
or
(iv) finally, if such legal
counsel determination cannot be obtained, by vote of the
stockholders.
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If the Determination is made
by independent legal counsel, the decision as to the reasonableness
of expenses shall also be made by independent legal counsel. The
finding required by this Section 4.1 may be made in advance of
the payment (or incurring) of the expenses for which
indemnification or reimbursement is sought.
4.2 The termination of any
action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the Indemnitee did
not act in good faith and in a manner that the Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Company, and with respect to any criminal action or
proceeding, had reasonable cause to believe that the
Indemnitee’s conduct was unlawful.
4.3 The Indemnitee’s
conduct with respect to an employee benefit plan for a purpose the
Indemnitee reasonably believed to be in the interests of the
participants in and beneficiaries of the plan shall be deemed to be
conduct that the Indemnitee reasonably believed to be not opposed
to the best interests of the Company.
4.4 For purposes of any
Determination hereunder, the Indemnitee shall be deemed to have
acted in good faith and in a manner the Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Company, or, with respect to any criminal action or proceeding, to
have had no reasonable cause to believe the Indemnitee’s
conduct was unlawful, if the Indemnitee’s action is based on
(i) the records or books of account of the Company or Another
Enterprise, including financial statements, provided that the
Indemnitee has no reasonable basis to
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