EXHIBIT 10.28
INDEMNITY
AGREEMENT
This Agreement is made as of
December 10, 2007 by and between Merix Corporation, an Oregon
corporation (the “Corporation”), and Allen L. Muhich
(“Indemnitee”), a director and/or officer of the
Corporation.
WHEREAS, it is essential to the
Corporation to retain and attract as directors and officers of the
Corporation and its subsidiaries the most capable persons
available; and
WHEREAS, corporate litigation
subjects directors and officers to expensive litigation risks at
the same time that adequate coverage of directors’ and
officers’ liability insurance may be unavailable;
and
WHEREAS, the Articles of
Incorporation of the Corporation require indemnification of the
officers and directors of the Corporation to the fullest extent
permitted by law. The Articles and the Oregon Business Corporation
Act (the “Act”) expressly provide that the
indemnification provisions set forth in the Act are not exclusive,
and thereby contemplate that contracts may be entered into between
the Corporation and members of the Board of Directors and officers
with respect to indemnification of directors and officers;
and
WHEREAS, Indemnitee does not regard
the protection available under the Corporation’s Articles of
Incorporation, Bylaws and insurance adequate in the present
circumstances, and may not be willing to serve or continue to serve
as a director or officer without adequate protection, and the
Corporation desires Indemnitee to serve in such
capacity.
NOW THEREFORE, the Corporation and
Indemnitee agree as follows:
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1.
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Agreement to
Serve. Indemnitee agrees
to serve or continue to serve as a director and/or officer of the
Corporation and/or one or more of its subsidiaries for so long as
Indemnitee is duly elected or appointed or until such time as
Indemnitee tenders a resignation in writing.
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2.
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Definitions. As used in this Agreement:
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(a)
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The term
“Proceeding” shall include any threatened, pending or
completed action, suit or proceeding, whether brought in the right
of the Corporation or otherwise, whether of a civil, criminal,
administrative or investigative nature, and whether formal or
informal, in which Indemnitee may be or may have been involved as a
party or otherwise, by reason of the fact that Indemnitee is or was
a director and/or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust
or other enterprise, whether or not serving in such capacity at the
time any liability or expense is incurred for which indemnification
or reimbursement can be provided under this Agreement.
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(b)
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The term
“Expenses” includes, without limitation thereto,
expense of investigations, judicial or administrative proceedings
or appeals, amounts paid in settlement by Indemnitee,
attorneys’ fees and disbursements and any expenses of
establishing a right to indemnification under Section 7 of
this Agreement, but shall not include the amount of judgments or
fines against Indemnitee.
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(c)
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References to
“other enterprises” shall include employee benefit
plans; references to “fines” shall include any excise
tax assessed with respect to any employee benefit plan; references
to “serving at the request of the corporation” shall
include any service as a director, officer, employee or agent of
the Corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an
employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner reasonably believed
to be in the interest of an employee benefit plan shall be deemed
to have acted in a manner “not opposed to the best interests
of the Corporation” as referred to in this
Agreement.
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3.
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Indemnity in Third Party
Proceedings. The
Corporation shall indemnify Indemnitee in accordance with the
provisions of this Section 3 if Indemnitee is a party to or
threatened to be made a party to any Proceeding (other than a
Proceeding by or in the right of the Corporation to procure a
judgment in its favor) against all Expenses, judgments
and
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fines actually and reasonably
incurred by Indemnitee in connection with such Proceeding, but only
if Indemnitee acted in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests
of the Corporation and, in the case of a criminal proceeding, in
addition, had no reasonable cause to believe that
Indemnitee’s conduct was unlawful. The termination of any
such Proceeding by judgment, order of court, settlement, conviction
or upon a plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good
faith and in a manner which Indemnitee reasonably believed to be in
the best interest of the Corporation, and with respect to any
criminal proceeding, that such person had reasonable cause to
believe that Indemnitee’s conduct was unlawful.
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Pursuant to this Agreement, the
Corporation specifically will, and hereby does, indemnify, to the
fullest extent permitted by law, Indemnitee against any and all
losses, claims, damages, liabilities and expenses, joint or
several, (or actions or proceedings, whether commenced or
threatened, in respect thereof) to which Indemnitee may become
subject, as a result of serving as a director and/or officer of
Merix, under the Securities Act or any other statute or common law,
including any amount paid in settlement of any litigation,
commenced or threatened, and to reimburse them for any legal or
other expenses incurred by them in connection with investigating
any claims and defending any actions, insofar as any such losses,
claims, damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue statement of
a material fact regarding Merix, or the omission or alleged
omission to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not
misleading.
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4.
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Indemnity in
Proceedings by or in the Right of the Corporation.
The Corporation shall indemnify
Indemnitee in accordance with the provisions of this Section 4
if Indemnitee is a party to or threatened to be made a party to any
Proceeding by or in the right of the Corporation to procure a
judgment in its favor against all Expenses actually and reasonably
incurred by Indemnitee in connection with the defense or settlement
of such Proceeding, but only if I
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