Exhibit 10.1
INDEMNIFICATION AGREEMENT
AGREEMENT dated as of the
th day of
, 20
between Gerber Scientific,
Inc., a Connecticut corporation (the “Company”), and
_______________ (the “Indemnitee”), a director
of the Company.
RECITALS :
WHEREAS, Indemnitee is serving as a director of
the Company, and as such is performing a valuable service for the
Company; and
WHEREAS, competent and experienced persons are
reluctant to serve publicly-held corporations as directors or in
other fiduciary capacities at the request of their companies unless
they are provided with adequate protection through liability
insurance and adequate company indemnification against risks of
claims and actions against them arising out of their service to the
corporation; and
WHEREAS, the Board of Directors has determined
that the ability to attract and retain qualified persons to serve
as directors is in the best interests of the Company and its
shareholders, and that the Company should act to assure such
persons that there will be adequate certainty of protection through
insurance and indemnification against risks of claims and actions
against them arising out of their service to and activities on
behalf of the Company; and
WHEREAS, the Company desires to have Indemnitee
continue to serve as a director of the Company, and Indemnitee
desires to continue so to serve the Company, provided, and on the
express condition, that Indemnitee is furnished with the indemnity
and other rights set forth in this Agreement;
AGREEMENT
NOW THEREFORE, in consideration of the mutual
promises made in this Agreement, and for other good and valuable
consideration, receipt of which is hereby acknowledged, the Company
and the Indemnitee hereby agree as follows:
1.
Indemnification; Advance of Expenses; Procedure .
(a)
Indemnification . The Company hereby agrees to
indemnify the Indemnitee, to the fullest extent permitted by the
Connecticut Business Corporation Act (the “CBCA”)
(including, in the Indemnitee’s capacity as a director, the
broader indemnification authorized by Section 33-636(b)(5) of
the CBCA) or any other law of the state of Connecticut as it exists
on the date hereof or as thereafter amended, in the event the
Indemnitee is or becomes, or is threatened to be made, a defendant,
respondent or witness in any threatened, pending or completed
action, suit or proceeding (including any appeal), whether civil,
criminal, administrative, arbitrative or investigative and whether
formal or informal (a “Proceeding”), relating to any
act, omission, circumstance, occurrence or event before or after
the date hereof, by reason of the fact that the Indemnitee is or
was a director or officer of the Company, or, while a director or
officer of the Company, is or was serving at the request of the
Company as a director, officer, employee, partner, trustee or agent
of another corporation, partnership, joint venture, trust, employee
benefit plan or other entity, including but not limited to a
Proceeding initiated by any third party or by or in the right of
the Company or any such other corporation, partnership, joint
venture, trust, employee benefit plan or entity, from and against
all reasonable expenses, including attorneys’ fees, and all
other costs, charges and expenses paid, payable or incurred by, or
assessable against, the Indemnitee in connection with
investigating, defending, being a witness in, or preparing to
defend or be a witness in any Proceeding (collectively,
“Expenses”) and judgments, fines, penalties, taxes
(including excise taxes) and settlements (including all interest,
assessments and other charges paid or payable in respect of the
foregoing) paid, payable or incurred by, or assessable against, the
Indemnitee in connection with any Proceeding (collectively,
“Damages”).
(b) Advance of
Expenses . Prior to final disposition of a
Proceeding and if requested by the Indemnitee, the Company shall,
upon presentation of bills, statements of account or invoices for
Expenses relating to a Proceeding, advance to or pay on behalf of
the Indemnitee, within thirty (30) days of such request, any and
all reasonable Expenses shown on such bills, statements or invoices
relating to such Proceeding, upon (i) receipt of a written
affirmation of the Indemnitee’s good faith belief that the
Indemnitee has met the relevant standard of conduct or that the
Proceeding involves conduct for which liability has been limited
under a provision of the Certificate of Incorporation authorized by
the CBCA) and (ii) receipt of a written undertaking by or on
behalf of the Indemnitee to repay such Expense advance in the event
that the Indemnitee is not entitled to mandatory indemnification
under Section 3 below and it is ultimately determined that the
Indemnitee has not met the relevant standard of
conduct. For purposes of this Agreement, in no event
will a counsel’s customary fees be deemed
unreasonable.
(c) Notice;
Selection of Counsel . In the event that the
Indemnitee demands indemnification hereunder as a result of any
Proceeding, the Indemnitee shall provide the Company with notice of
such Proceeding and shall make available to the Company all
information in the Indemnitee’s possession that reasonably
relates to such Proceeding. Prior to any Change in
Control (as defined in Section 2 hereof), the Company shall have
the right, but not the obligation, to control the defense of the
Indemnitee in connection with such Proceeding at the
Company’s sole cost and expense and by counsel mutually
acceptable to the Company and the Indemnitee. In the
event that the Company shall elect to exercise such right to
control such defense, the Indemnitee shall have the right to
participate in such defense at the Indemnitee’s sole expense
and through counsel of the Indemnitee’s choice. No
Proceeding shall be settled or compromised by the Indemnitee
without the consent of the Company, which shall not be unreasonably
withheld. No Proceeding shall be settled or compromised
by the Company without the Indemnitee’s consent, which shall
not be unreasonably withheld. Without limiting the
Indemnitee’s ability to withhold consent, the parties agree
that it shall not be unreasonable for the Indemnitee to withhold
consent for any settlement or compromise if the settlement or
compromise results in any financial or other burden not satisfied
by the Company or includes any admission, finding or stipulation or
other conclusion of guilt, fault or culpability on the part of the
Indemnitee. The Indemnitee’s failure to give
timely notice or to provide copies of documents or to furnish
information in connection with any Proceeding shall not constitute
a defense to any claim for indemnification by the Indemnitee
hereunder except, and only to the extent, that the Company is
materially prejudiced thereby.
(d) Standard of
Conduct; Procedure for Determination . If the CBCA
requires that indemnification hereunder in any case be conditioned
upon a determination that a standard of conduct has been met, the
applicable standard of conduct shall have been met if the
Indemnitee’s conduct meets the requirements of either CBCA
Section 33-771(a)(1) or CBCA Section 33-771(a)(2), as the same may
be amended from time to time. Except as provided below,
the determination of whether the standard of conduct has been met
in such case or in respect of indemnification sought by the
Indemnitee hereunder or under the Company’s Amended and
Restated Certificate of Incorporation, By-Laws or otherwise shall
be made in accordance with the CBCA, with the method of
determination to be chosen by the Board of Directors;
provided , however , that if the Board of Directors
elects that the determination be made by special legal counsel,
such counsel shall be selected by the Company in accordance with
the CBCA and approved by the Indemnitee (which approval shall not
be unreasonably withheld). Following a Change in Control
that was not approved by the Incumbent Board (as defined in Section
2), the determination of whether the standard of conduct has been
met in such case or in respect of indemnification sought by the
Indemnitee hereunder or under the Company’s Amended and
Restated Certificate of Incorporation, By-Laws or otherwise shall
be made in accordance with the CBCA; provided ,
however , that the Indemnitee may elect to have the
determination be made by special legal counsel reasonably
acceptable to the Indemnitee. In any case in which the
Indemnitee is seeking indemnification hereunder or under the
Company’s Amended and Restated Certificate of Incorporation,
By-Laws or otherwise, and in which the CBCA requires a
determination that a standard of conduct has been met, the Board of
Directors shall not fail to make or procure a determination as to
whether the applicable standard of conduct has been met.
(e) Special Legal
Counsel . The Company agrees to pay the fees and
expenses of any special legal counsel engaged as contemplated in
the preceding paragraph and to indemnify fully such special legal
counsel against any and all expenses (including attorney’s
fees), claims, liabilities and damages arising out of or relating
to this Agreement or the engagement of special legal counsel
pursuant hereto.
2. Change in
Control For purposes of this Agreement,
“Change of Control” shall mean the occurrence of any
one or more of the following events:
(a) the Company shall
(i) merge or consolidate with or into another corporation or entity
or enter into a share exchange between the Company or stockholders
of the Company and another individual, corporation or other entity
and as a result of such merger, consolida
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