INDEMNIFICATION
AGREEMENT
This Indemnification
Agreement (“Agreement”) is
made as of this _____ day of, 20___ by and between Trimble
Navigation Limited, a California corporation (the
“Company”), and [Name]
(“Indemnitee”).
WHEREAS
, the Company and
Indemnitee recognize the increasing difficulty in obtaining
directors’ and officers’ liability insurance, the
significant increases in the cost of such insurance and the general
reductions in the coverage of such insurance;
WHEREAS
, the Company and
Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting officers and directors to
expensive litigation risks at the same time as the availability and
coverage of liability insurance has been severely
limited;
WHEREAS
, Indemnitee does
not regard the current protection available as adequate under the
present circumstances, and Indemnitee and other officers and
directors of the Company may not be willing to continue to serve as
officers and directors without additional protection;
and
WHEREAS
, the Company
desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve as officers and directors
of the Company and to indemnify its officers and directors so as to
provide them with the maximum protection permitted by
law.
NOW, THEREFORE
, the Company and
Indemnitee hereby agree as follows:
(a)
Third Party
Proceedings . The Company shall indemnify
Indemnitee if Indemnitee is or was a party or is threatened to be
made a party to any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Company) by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or any
subsidiary of the Company, by reason of any action or inaction on
the part of Indemnitee while an officer or director or by reason of
the fact that Indemnitee is or was serving at the request of the
Company as a director, officer, 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 (if such settlement is
approved in advance by the Company, which approval shall not be
unreasonably withheld) actually and reasonably incurred by
Indemnitee in connection with such action or proceeding if
Indemnitee acted in good faith and in a manner Indemnitee believed
to be in the best interests of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to
believe Indemnitee’s conduct was unlawful. The termination of
any action 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
(i) Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in the best interests of the
Company, or (ii) with respect to any criminal action or
proceeding, Indemnitee had reasonable cause to believe that
Indemnitee’s conduct was unlawful.
(b)
Proceedings By
or in the Right of the Company . The Company shall indemnify
Indemnitee if Indemnitee was or is a party or is threatened to be
made a party to any threatened, pending or completed action or
proceeding by or in the right of the Company or any subsidiary of
the Company to procure a judgment in its favor by reason of the
fact that Indemnitee is or was a director, officer, employee or
agent of the Company, or any subsidiary of the Company, by reason
of any action or inaction on the part of Indemnitee while an
officer or director or by reason of the fact that Indemnitee is or
was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys’ fees) and, to the fullest extent permitted by law,
amounts paid in settlement, in each case to the extent actually and
reasonably incurred by Indemnitee in connection with the defense or
settlement of such action or proceeding if Indemnitee acted in good
faith and in a manner Indemnitee believed to be in the best
interests of the Company and its shareholders.
2.
Expenses; Indemnification
Procedure .
(a)
Advancement of
Expenses . To the extent permitted under
applicable law, the Company shall advance all expenses incurred by
Indemnitee in connection with the investigation, defense,
settlement or appeal of any civil or criminal action or proceeding
referenced in Section 1(a) or (b) hereof (but not amounts
actually paid in settlement of any such action or proceeding).
Indemnitee hereby undertakes to repay such amounts advanced only
if, and to the extent that, it shall ultimately be determined that
Indemnitee is not entitled to be indemnified by the Company as
authorized hereby. The advances to be made hereunder shall be paid
by the Company to Indemnitee within twenty (20) days following
delivery of a written request therefor by Indemnitee to the
Company.
(b)
Notice/Cooperation by
Indemnitee . Indemnitee shall, as a
condition precedent to his right to be indemnified under this
Agreement, give the Company notice in writing as soon as
practicable of any claim made against Indemnitee for which
indemnification will or could be sought under this Agreement.
Notice to the Company shall be directed to the Chief Executive
Officer of the Company at the address shown on the signature page
of this Agreement (or such other address as the Company shall
designate in writing to Indemnitee). Notice shall be deemed
received three business days after the date postmarked if sent by
domestic certified or registered mail, properly addressed;
otherwise notice shall be deemed received when such notice shall
actually be received by the Company. In addition, Indemnitee shall
give the Company such information and cooperation as it may
reasonably require and as shall be within Indemnitee’s
power.
(c)
Procedure
. Any
indemnification provided for in Section 1 shall be made no
later than forty-five (45) days after receipt of the written
request of Indemnitee. If a claim under this Agreement, under any
statute, or under any provision of the Company’s Articles of
Incorporation or By-laws providing for indemnification, is not paid
in full by the Company within forty-five (45) days after a written
request for payment thereof has first been received by the Company,
Indemnitee may, but need not, at any time thereafter bring an
action against the Company to recover the unpaid amount of the
claim and, subject to Section 13 of this Agreement, Indemnitee
shall also be entitled to be paid for the expenses (including
attorneys’ fees) of bringing such action. It shall be a
defense to any such action (other than an action brought to enforce
a claim for expenses incurred in connection with any action or
proceeding in advance of its final disposition) that Indemnitee has
not met the standards of conduct which make it permissible under
applicable law for the Company to indemnify Indemnitee for the
amount claimed, and Indemnitee shall be entitled to receive interim
payments of expenses pursuant to Subsection 2(a) unless and
until such defense may be finally adjudicated by court order or
judgment from which no further right of appeal exists. It is the
parties’ intention that if the Company contests
Indemnitee’s right to indemnification, the question of
Indemnitee’s right to indemnification shall be for the court
to decide, and neither the failure of the Company (including its
Board of Directors, any committee or subgroup of the Board of
Directors, independent legal counsel, or its shareholders) to have
made a determination that indemnification of Indemnitee is proper
in the circumstances because Indemnitee has met the applicable
standard of conduct required by applicable law, nor an actual
determination by the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal
counsel, or its shareholders) that Indemnitee has not met such
applicable standard of conduct, shall create a presumption that
Indemnitee has or has not met the applicable standard of
conduct.
(d)
Notice to
Insurers . If, at the time of the
receipt of a notice of a claim pursuant to Section 2(b)
hereof, the Company has director and officer liability insurance in
effect, the Company shall give prompt notice of the commencement of
such proceeding to the insurers in accordance with the procedures
set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to
pay, on behalf of the Indemnitee, all amounts payable as a result
of such proceeding in accordance with the terms of such
policies.
(e)
Selection of
Counsel . In the event the Company
shall be obligated under Section 2(a) hereof to pay the
expenses of any proceeding against Indemnitee, the Company, if
appropriate, shall be entitled to assume the defense of such
proceeding, with counsel approved by
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