Exhibit 10.4
INDEMNIFICATION
AGREEMENT
This Agreement is made as of the
17 th
day of November, 2003, by and
between Mercury Computer Systems, Inc., a Massachusetts corporation
(the “Corporation”), and
(the “Indemnitee”), a director of the
Corporation.
WHEREAS, it is essential to the
Corporation to retain and attract as directors the most capable
persons available, and
WHEREAS, the substantial increase in
corporate litigation subjects directors 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
WHEREAS, the Indemnitee does not
regard the protection available under the Corporation’s
Articles of Organization, By-Laws and insurance as adequate in the
present circumstances, and may not be willing to serve or continue
to serve as a director without adequate protection, and
WHEREAS, the Corporation desires the
Indemnitee to serve, or continue to serve, as a director of the
Corporation.
NOW, THEREFORE, the Corporation and
the Indemnitee do hereby agree as follows:
1. Agreement to Serve
.
The Indemnitee agrees to serve or
continue to serve as a director of the Corporation for so long as
the Indemnitee is duly elected or until such time as the Indemnitee
tenders a resignation in writing.
2. Third Party Actions
.
The Corporation shall indemnify the
Indemnitee if the Indemnitee was or is a party or is threatened to
be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative (each, a “Proceeding”) (other than an
action by or in the right of the Corporation), by reason of the
fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the
Corporation as a director, officer, trustee, principal, partner,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the Indemnitee in
connection with such Proceeding.
3. Derivative Actions
.
The Corporation shall indemnify the
Indemnitee if the Indemnitee was or is a party or is threatened to
be made a party to any Proceeding by or in the right of the
Corporation to procure a judgment in its favor by reason of the
fact that the Indemnitee is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, trustee, principal,
partner, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses
(including attorneys’ fees) actually and reasonably incurred
by the Indemnitee in connection with the defense or settlement of
such Proceeding.
4. Expenses
.
To the extent that the Indemnitee
has been successful on the merits or otherwise in defense of any
Proceeding referred to in Sections 2 and 3, or in defense of any
claim, issue or matter therein, the Indemnitee shall be indemnified
against expenses (including attorneys’ fees) actually and
reasonably incurred by the Indemnitee in connection
therewith.
5. Authorization and
Request for Indemnification .
(a) Any indemnification
requested by the Indemnitee under Section 2 hereof shall be
made no later than ten (10) days after receipt of the written
request of the Indemnitee, unless with respect to such matter it
shall have been adjudicated in any proceeding that the Indemnitee
did not act in good faith in the reasonable belief that his action
was in the best interests of the Corporation, or to the extent that
such matter relates to service with respect to an employee benefit
plan, in the best interests of the participants or beneficiaries of
such employee benefit plan, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was
unlawful.
(b) Any indemnification
requested by the Indemnitee under Section 3 hereof shall be
made no later than ten (10) days after receipt of the written
request of the Indemnitee, unless with respect to such matter it
shall have been adjudicated in any proceeding that the Indemnitee
did not act in good faith in the reasonable belief that his action
was in the best interests of the Corporation, or to the extent that
such matter relates to service with respect to an employee benefit
plan, in the best interests of the participants or beneficiaries of
such employee benefit plan, or unless the Indemnitee shall have
been finally adjudged to be liable to the Company by a court of
competent jurisdiction due to willful misconduct of a culpable
nature in the performance of the Indemnitee’s duty to the
Corporation unless and only to the extent that any 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, such person is fairly and reasonably
entitled to indemnity for such expenses as such court shall deem
proper.
6. Advance Payment of
Expenses .
Subject to Section 5 above, the
Corporation shall advance all expenses incurred by the Indemnitee
in connection with the investigation, defense, settlement or appeal
of any Proceeding to which the Indemnitee is a party or is
threatened to be made a party by reason of the fact that
2
the Indemnitee is or was an agent of the
Corporation. The Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified by
the Corporation. The advances to be made hereunder shall be paid by
the Corporation to or on behalf of the Indemnitee within thirty
(30) days following delivery of a written request therefor by
the Indemnitee to the Corporation.
7. Remedies
.
The right to indemnification or
advancement of expenses as provided by this Agreement shall be
enforceable by the Indemnitee in any court of competent
jurisdiction. Unless otherwise required by law, the burden of
proving that indemnification is not appropriate shall be on the
Corporation. The Indemnitee’s expenses reasonably incurred in
connection with successfully establishing the Indemnitee’s
right to indemnification, in whole or in part, in any such
Proceeding shall also be indemnified by the Corporation.
8. Partial
Indemnification .
If the Indemnitee is entitled under
any provision of this Agreement to indemnification by the
Corporation for some or a portion of the expenses, judgments,
fines, penalties or amounts paid in settlement actually and
reasonably incurred by or on behalf of the Indemnitee in connection
with any Proceeding but not, however, for the total amount thereof,
the Corporation shall nevertheless
