Exhibit 10.1
INDEMNIFICATION AGREEMENT
This Agreement made and entered into
this day of , (the
“Agreement”), by and between Ezenia! Inc., a Delaware
corporation (the “Company,” which term shall include,
where appropriate, any Entity (as hereinafter defined) controlled
directly or indirectly by the Company and
(the “Indemnitee”):
WHEREAS, it is essential to the
Company that it be able to retain and attract as
directors & officers the most capable persons
available;
WHEREAS, increased corporate
litigation has subjected directors & officers to
litigation risks and expenses, and the limitations on the
availability of directors and officers liability insurance have
made it increasingly difficult for the Company to attract and
retain such persons;
WHEREAS, the Company’s
Certificate of Incorporation and By-laws (the “Certificate of
Incorporation” and “By-laws,” respectively)
require it to indemnify its directors & officers to the
fullest extent permitted by law and permit it to make other
indemnification arrangements and agreements;
WHEREAS, the Company desires to
provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification against
litigation risks and expenses (regardless, among other things, of
any amendment to or revocation of the Certificate of Incorporation
or By-laws or any change in the ownership of the Company or the
composition of its Board of Directors);
WHEREAS, the Company intends that
this Agreement provide Indemnitee with greater protection than that
which is provided by the Company’s Certificate of
Incorporation and By-laws; and
WHEREAS, Indemnitee is relying upon
the rights afforded under this Agreement in continuing as a
director or officer of the Company.
NOW, THEREFORE, in consideration of
the promises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
1.
Definitions
.
(a)
“Corporate Status” describes the status of a person who
is serving or has served (i) as a director of the Company or
officer of the company, (ii) in any capacity with respect to
any employee benefit plan of the Company, or (iii) as a
director, partner, trustee, officer, employee, or agent of any
other Entity at the
request of the Company. For
purposes of subsection (iii) of this Section 1(a), if
Indemnitee is serving or has served as a director, partner,
trustee, officer, employee or agent of a Subsidiary, Indemnitee
shall be deemed to be serving at the request of the
Company.
(b)
“Entity” shall mean any corporation, partnership,
limited liability company, joint venture, trust, foundation,
association, organization or other legal entity.
(c)
“Expenses” shall mean all fees, costs and expenses
incurred by Indemnitee in connection with any Proceeding (as
defined below), including, without limitation, attorneys’
fees, disbursements and retainers (including, without limitation,
any such fees, disbursements and retainers incurred by Indemnitee
pursuant to Sections 11 and 12(c) of this Agreement),
fees and disbursements of expert witnesses, private investigators
and professional advisors (including, without limitation,
accountants and investment bankers), court costs, transcript costs,
fees of experts, travel expenses, duplicating, printing and binding
costs, telephone and fax transmission charges, postage, delivery
services, secretarial services, and other disbursements and
expenses.
(d)
“Indemnifiable Expenses,” “Indemnifiable
Liabilities” and “Indemnifiable Amounts” shall
have the meanings ascribed to those terms in
Section 3(a) below.
(e)
“Liabilities” shall mean judgments, damages,
liabilities, losses, penalties, excise taxes, fines and amounts
paid in settlement.
(f)
“Proceeding” shall mean any threatened, pending or
completed claim, action, suit, arbitration, alternate dispute
resolution process, investigation, administrative hearing, appeal,
or any other proceeding, whether civil, criminal, administrative,
arbitrative or investigative, whether formal or informal, including
a proceeding initiated by Indemnitee pursuant to Section 11 of
this Agreement to enforce Indemnitee’s rights
hereunder.
(g)
“Subsidiary” shall mean any corporation, partnership,
limited liability company, joint venture, trust or other Entity of
which the Company owns (either directly or through or together with
another Subsidiary of the Company) either (i) a general
partner, managing member or other similar interest or
(ii) (A) 50% or more of the voting power of the voting
capital equity interests of such corporation, partnership, limited
liability company, joint venture or other Entity, or (B) 50%
or more of the outstanding voting capital stock or other voting
equity interests of such corporation, partnership, limited
liability company, joint venture or other Entity.
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2.
Services of
Indemnitee . In consideration of
the Company’s covenants and commitments hereunder, Indemnitee
agrees to serve or continue to serve as a director or officer of
the Company. However, this Agreement shall not impose any
obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any.
3.
Agreement to
Indemnify . The Company agrees to
indemnify Indemnitee as follows:
(a)
Proceedings Other Than By or In the Right of the Company
. Subject to the exceptions contained in
Section 4(a) below, if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding (other than an
action by or in the right of the Company) by reason of
Indemnitee’s Corporate Status, Indemnitee shall be
indemnified by the Company against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such Proceeding
(referred to herein as “Indemnifiable Expenses” and
“Indemnifiable Liabilities,” respectively, and
collectively as “Indemnifiable Amounts”).
(b)
Proceedings By or In the Right of the Company .
Subject to the exceptions contained in
Section 4(b) below, if Indemnitee was or is a party or is
threatened to be made a party to any Proceeding by or in the right
of the Company by reason of Indemnitee’s Corporate Status,
Indemnitee shall be indemnified by the Company against all
Indemnifiable Expenses.
(c)
Conclusive Presumption Regarding Standard of Care . In
making any determination required to be made under Delaware law
with respect to entitlement to indemnification hereunder, the
person, persons or entity making such determination shall presume
that Indemnitee is entitled to indemnification under this Agreement
if Indemnitee submitted a request therefor in accordance with
Section 5 of this Agreement, and the Company shall have the
burden of proof to overcome that presumption in connection with the
making by any person, persons or entity of any determination
contrary to that presumption.
4.
Exceptions to
Indemnification . Indemnitee shall be
entitled to indemnification under Sections 3(a) and
3(b) above in all circumstances other than with respect to any
specific claim, issue or matter involved in the Proceeding out of
which Indemnitee’s claim for indemnification has arisen, as
follows:
(a)
Proceedings Other Than By or In the Right of the Company
. If indemnification is requested under
Section 3(a) and it has been finally adjudicated by a
court of competent jurisdiction that, in connection with such
specific claim,
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issue or matter,
Indemnitee failed to act (i) in good faith and (ii) in a
manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company, or, with respect to any criminal
Proceeding, Indemnitee had reasonable cause to believe that
Indemnitee’s conduct was unlawful, Indemnitee shall not be
entitled to payment of Indemnifiable Amounts hereunder.
(b)
Proceedings By or In the Right of the Company . If
indemnification is requested under
Section 3(b) and
(i) it has been finally
adjudicated by a court of competent jurisdiction that, in
connection with such specific claim, issue or matter, Indemnitee
failed to act (A) in good faith and (B) in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, Indemnitee shall not be entitled to
payment of Indemnifiable Expenses hereunder; or
(ii) it has been finally
adjudicated by a court of competent jurisdiction that Indemnitee is
liable to the Company with respect to such specific claim,
Indemnitee shall not be entitled to payment of Indemnifiable
Expenses hereunder with respect to such claim, issue or matter
unless the Court of Chancery or another court in which such
Proceeding was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification for such Indemnifiable Expenses which
such court shall deem proper; or
(iii) it has been finally
adjudicated by a court of competent jurisdiction that Indemnitee is
liable to the Company for an accounting of profits made from the
purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934, the rules and regulations
promulgated thereunder and amendments thereto or similar provisions
of any federal, state or local statutory law, Indemnitee shall not
be entitled to payment of Indemnifiable Expenses
hereunder.
(c)
Insurance Proceeds . To the extent payment is actually
made to the Indemnitee under a valid and collectible insurance
policy in respect of Indemnifiable Amounts in connection with such
specific claim, issue or matter, Indemnitee shall not be entitled
to payment of Indemnifiable Amounts hereunder except in respect of
any excess beyond the amount of payment under such
insurance.
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5.
Procedure for
Payment of Indemnifiable Amounts . Indemnitee shall
submit to the Company a written request specifying the
Indemnifiable Amounts for which Indemnitee seeks payment under
Section 3 of this Agreement and the basis for the claim.
The Company shall pay such Indemnifiable Amounts to Indemnitee
promptly upon receipt of its request. At the request of the
Company, Indemnitee shall furnish such documentation and
information as are reasonably available to Indemnitee and necessary
to establish that Indemnitee is entitled to indemnification
hereunder.
6.
Indemnification for Expenses of a
Party Who is Wholly or Partly Successful . Notwithstanding any other
provision of this Agreement, and without limiting any such
provision, to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, Indemnitee shall be
indemnified against all Expenses reasonably incurred by Indemnitee
or on Indemnitee’s behalf in conne
