INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as of
September 11, 2001 by and between Telaxis Communications Corporation, a
Massachusetts corporation (the "Corporation"), and Xxxxxxx Xxxx ("Indemnitee"),
a director or officer of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract
as directors and officers the most capable persons available, and
WHEREAS, the substantial increase in corporate litigation
subjects directors and officers to expensive litigation risks, and
WHEREAS, the Restated Articles of Organization and the Amended
and Restated By-laws of the Corporation permit the Corporation to indemnify its
officers and directors to the fullest extent permitted by law and Indemnitee has
been serving and continues to serve as a director or officer of the Corporation
in part on reliance on such Articles and such By-laws, and
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to enhance Indemnitee's continued
service to the Corporation in an effective manner and Indemnitee's reliance on
the aforesaid Articles and By-laws, and in part to provide Indemnitee with
specific contractual assurance that the protection promised by such Articles and
such By-laws will be available to Indemnitee (regardless of, among other things,
any amendment to or revocation of such Articles or such By-laws or any change in
the composition of the Corporation's Board of Directors or any acquisition
transaction relating to the Corporation), the Corporation wishes to provide in
this Agreement for indemnification of and the advancing expenses to Indemnitee
to the fullest extent (whether partial or complete) permitted by law and as set
forth in this Agreement, and, to the extent insurance is maintained, for the
continued coverage of Indemnitee under the Corporation's directors' and
officers' liability insurance policies;
NOW THEREFORE, the Corporation and Indemnitee do hereby agree as
follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to
serve as a director or officer of the Corporation for so long as he is duly
elected or appointed or until such time as he tenders his resignation in
writing.
2. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened,
pending or completed action, suit, or proceeding, whether brought by or in the
right of the Corporation or otherwise and whether of a civil, criminal,
administrative or investigative nature, and any appeal therefrom.
(b) The term "Corporate Status" shall mean the status of a
person who is or was a director, officer, agent or consultant of or to the
Corporation, or is or was serving or has agreed to serve, at the request of the
Corporation, as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
(c) The term "Expenses" shall include, without limitation, all
reasonably incurred attorneys' fees, retainers, court costs, transcript costs,
fees of experts, travel expenses, duplicating costs, printing and binding costs,
telephone and facsimile charges, postage and overnight delivery service fees and
other disbursements or expenses of the types customarily incurred in connection
with investigations, judicial or administrative proceedings or appeals, but
shall not include the amount of judgments, fines or penalties against Indemnitee
or amounts paid in settlement in connection with such matters.
(d) References to "other enterprise" 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 in any capacity with respect to an
employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith in the reasonable belief that his action was in the best
interest of the participant or beneficiaries of an employee benefit plan shall
be deemed to have acted in good faith in the reasonable belief that his action
was in the best interest of the "Corporation" as referred to in this Agreement.
(e) The term "Indemnified Costs" shall mean all Expenses and
any and all costs, liabilities, obligations, losses, damages, claims, actions,
judgments, fines, penalties, and amounts paid in settlement.
3. Indemnification In Third-Party Proceedings. The Corporation
shall indemnify Indemnitee, and hold Indemnitee harmless, in accordance with the
provisions of this Paragraph 3 from and against any and all Indemnified Costs
which may be imposed on, incurred by or asserted against Indemnitee at any time
as a result of or in connection with Indemnitee being a party to or threatened
to be made a party to or otherwise involved in any Proceeding (other than a
Proceeding by or in the right of the Corporation to procure a judgment in its
favor) by reason of his Corporate Status or by reason of any action alleged to
have been taken or omitted by Indemnitee or any other person or entity in
connection therewith; except that no indemnification shall be made under this
Paragraph 3 with respect to any matter as to which Indemnitee shall have been
adjudicated in any Proceeding not to have acted in good faith in the reasonable
belief that his action was in the best interest of the Corporation. The
termination of any Proceeding by judgment, order, 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 in the reasonable belief
that his action was in the best interest of the Corporation.
4. Indemnification in Proceedings by or in the Right of the
Corporation. The Corporation shall indemnify Indemnitee, and hold Indemnitee
harmless, in accordance with the provisions of this Paragraph 4 from and against
any and all Indemnified Costs which may be imposed on, incurred by or asserted
against Indemnitee at any time as a result of or in connection with Indemnitee
being a party to or threatened to be made a party to or otherwise involved in
any Proceeding by or in the right of the Corporation to procure a judgment in
its favor by reason of his Corporate Status or by reason of any action alleged
to have been taken or omitted by Indemnitee or any other person or entity in
connection therewith, except that (a) no
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indemnification shall be made under this Paragraph 4 with respect to any matter
as to which Indemnitee shall have been adjudicated in any Proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interest of the Corporation and (b) no indemnification shall be made under this
Paragraph 4 in respect of any claim, issue, or matter as to which Indemnitee
shall have been adjudged to be liable to the Corporation, unless and only to the
extent that a court of Massachusetts shall determine upon application that,
despite the adjudication of such liability but in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to indemnity for such
Indemnified Costs as the court shall deem proper. The termination of any
Proceeding by judgment, order, 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 in the reasonable belief that his action
was in the best interest of the Corporation.
5. Exceptions to Right of Indemnification. Notwithstanding
anything to the contrary in this Agreement, except as set forth in Paragraph 10,
the Corporation shall not indemnify Indemnitee under this Agreement in
connection with a Proceeding (or part thereof) initiated by Indemnitee unless
the initiation thereof was approved by the Board of Directors of the
Corporation. Notwithstanding anything to the contrary in this Agreement, the
Corporation shall not indemnify Indemnitee to the extent Indemnitee has actually
been reimbursed from the proceeds of insurance maintained by the Corporation,
and in the event the Corporation makes any indemnification payments to
Indemnitee and Indemnitee is subsequently reimbursed from such proceeds of
insurance, Indemnitee shall promptly refund such indemnification payments to the
Corporation to the extent of such insurance reimbursement.
6. Indemnification of Expenses of Successful Party.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful, on the merits or otherwise, in defense of any
Proceeding in which he is involved by reason of his Corporate Status or by
reason of any action alleged to have been taken or omitted by Indemnitee or any
other person or entity in connection therewith, Indemnitee shall be indemnified,
to the maximum extent permitted by applicable law, against all Indemnified Costs
incurred by him or on his behalf in connection therewith. Without limiting the
foregoing, if any such Proceeding or any claim, issue or matter therein is
disposed of, on the merits or otherwise (including a disposition without
prejudice), without (i) an adjudication that Indemnitee was liable to the
Corporation, or (ii) an adjudication that Indemnitee did not act in good faith
in the reasonable belief that his action was in the best interest of the
Corporation, Indemnitee shall be considered for the purposes hereof to have been
wholly successful with respect thereto.
7. Notification and Defense of Claim. As a condition precedent to
his right to be indemnified under this Agreement, Indemnitee must notify the
Corporation in writing as soon as practicable of any Proceeding for which
Indemnitee will seek indemnification or for which indemnification could be
sought by him and provide the Corporation with a copy of any summons, citation,
subpoena, complaint, indictment, information or other document relating to such
Proceeding with which he is served; provided that any failure to so notify the
Corporation shall not relieve the Corporation from any liability under this
Agreement, except to the extent any delay or failure by Indemnitee to provide
notice to the Corporation shall increase the Corporation's liability hereunder.
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With respect to any Proceeding of which the Corporation is so notified, the
Corporation will be entitled to participate therein at its own expense and/or to
assume the defense thereof at its own expense, with legal counsel reasonably
acceptable to Indemnitee. After written notice from the Corporation to
Indemnitee of its election so to assume such defense, the Corporation shall not
be liable to Indemnitee for any fees or expenses of counsel subsequently
incurred by Indemnitee in connection with such Proceeding, other than as
provided below in this Paragraph 7. Indemnitee shall have the right to employ
his own counsel in connection with such Proceeding, but any fees and expenses of
such counsel incurred after written notice from the Corporation of its
assumption of the defense thereof shall be at the expense of Indemnitee unless
(i) the employment of counsel by Indemnitee has been authorized by the
Corporation, (ii) counsel to Indemnitee shall have reasonably concluded that
there may be a conflict of interest or position in any significant issue between
the Corporation and Indemnitee or between Indemnitee and any other jointly
represented party in the conduct of defense of such Proceeding, or (iii) the
Corporation shall not in fact have employed counsel to assume the defense of
such Proceeding, in each of which cases the reasonable fees and expenses of
counsel for Indemnitee shall be at the expense of the Corporation except as
otherwise expressly provided by this Agreement. Indemnitee may not settle any
Proceeding for which he seeks indemnification hereunder without first obtaining
the prior written consent of the Corporation, which shall not be unreasonably
withheld, conditioned or delayed.
8. Advancement of Expenses. Subject to the provisions of
Paragraph 9 below, any Indemnified Costs incurred by Indemnitee in connection
with or arising out of any Proceeding with respect to which Indemnitee is or may
be entitled to indemnification under this Agreement shall be paid or reimbursed
to Indemnitee by the Corporation in advance of the final disposition of such
matter; provided, however, that the payment or reimbursement of such Indemnified
Costs in advance of the final disposition of such matter shall be made only upon
receipt of an undertaking by or on behalf of Indemnitee to repay all amounts so
advanced in the event that it shall ultimately be determined that Indemnitee is
not entitled to be indemnified by the Corporation as authorized in this
Agreement or otherwise; and that no such advancement of expenses shall be made
with respect to any matter as to which it shall have been adjudicated in any
Proceeding that Indemnitee did not act in good faith in the reasonable belief
that his action was in the best interest of the Corporation. Such undertaking
shall be accepted without bond or other security or reference to the financial
ability of Indemnitee to make repayment.
9. Procedure for Indemnification. In order to obtain
indemnification or advancement of Indemnified Costs pursuant to this Agreement,
Indemnitee shall submit to the Corporation a written request, including in such
request such documentation and information as is reasonably available to
Indemnitee describing the amount of indemnification or advancement requested.
Upon Indemnitee's verification to the reasonable satisfaction of the Corporation
of the amount of any Indemnified Costs incurred by Indemnitee, the Corporation
shall either, at Indemnitee's direction, reimburse Indemnitee or pay as and when
due to the person or other entity entitled thereto the Indemnified Costs covered
by this Agreement.
10. Remedies. The right to indemnification or advancement of
Expenses as provided by this Agreement shall be enforceable by Indemnitee in any
court of competent jurisdiction if the Corporation denies such request, in whole
or in part, or if no disposition thereof is made within twenty (20) days of
submitting a request under Paragraph 9 above. Unless otherwise required by law,
the burden of proving that indemnification or advancement is not appropriate
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shall be on the Corporation. Indemnitee's expenses (of the type described in the
definition of "Indemnified Costs" in Paragraph 2(e)) incurred in connection with
successfully establishing his right to indemnification or advancement, in whole
or in part, in any such Proceeding shall also be indemnified and advanced by the
Corporation.
11. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the Indemnified Costs incurred by him or on his behalf in connection
with any Proceeding but not, however, for the total amount thereof, the
Corporation shall nevertheless indemnify Indemnitee for the portion of such
Indemnified Costs to which Indemnitee is entitled.
12. Subrogation. In the event of any payment under this
Agreement, the Corporation shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee, who, at the Corporation's expense,
shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Corporation to bring suit to enforce such rights.
13. Term of Agreement. This Agreement shall continue until and
terminate upon the later of (a) six years after the date that Indemnitee shall
have ceased to serve as a director or officer of the Corporation or, at the
request of the Corporation, as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise or (b) the
final termination (and expiration of all appeal periods) of all Proceedings
pending on the date set forth in clause (a) in respect of which Indemnitee is
granted rights of indemnification or advancement of Indemnified Costs hereunder
and of any proceeding commenced by Indemnitee pursuant to Paragraph 10 of this
Agreement relating thereto.
14. Indemnification Hereunder Not Exclusive. The indemnification
and advancement of Indemnified Costs provided by this Agreement shall be
independent of, in addition to and not be deemed exclusive or in derogation of
any other rights to which Indemnitee may be entitled under the Restated Articles
of Organization, the Amended and Restated By-Laws, any other agreement, any vote
of stockholders or disinterested directors, the Business Corporation Law of
Massachusetts, any other law (common or statutory), or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding office for the Corporation. Nothing contained in this Agreement shall be
deemed to prohibit the Corporation from purchasing and maintaining insurance, at
its expense, to protect itself or Indemnitee against any expense, liability or
loss incurred by it or him in any such capacity, or arising out of his status as
such, whether or not Indemnitee would be indemnified against such expense,
liability or loss under this Agreement.
15. No Special Rights. Nothing herein shall confer upon
Indemnitee any right to continue to serve as an officer or director of the
Corporation for any period of time or at any particular rate of compensation.
16. Savings Clause. If this Agreement or any portion thereof
shall be held invalid, unenforceable or void in whole or in part on any ground
by any court of competent jurisdiction, then (a) the parties shall promptly
negotiate a replacement provision effecting the parties' intent to provide
indemnification and advancement rights to Indemnitee to the maximum extent
permitted by applicable law, (b) the Corporation shall nevertheless indemnify
Indemnitee as to Indemnified Costs to the maximum extent permitted by any
applicable portion of this Agreement that shall not have been invalidated and,
in any event, to the maximum extent
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permitted by applicable law, and (c) the remaining provisions of this Agreement
shall remain in full force and effect.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
18. Successors and Assigns. This Agreement shall be binding upon
the Corporation and its successors and assigns, including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the Corporation, and shall
inure to the benefit of the estate, heirs, executors, administrators and
personal representative of Indemnitee.
19. Headings. The headings of the paragraphs of this Agreement
are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction thereof.
20. Modification and Waiver. This Agreement may be amended from
time to time to reflect changes in Massachusetts law or for other reasons. No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof nor shall any such waiver constitute a continuing waiver.
21. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
given (i) when delivered by hand or (ii) if mailed by certified or registered
mail with postage prepaid, on the third day after the date on which it is so
mailed.
(a) if to Indemnitee, to:
Xxxxxxx Xxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
(b) if to the Corporation, to:
Telaxis Communications Corporation
00 Xxxxxxxxxx Xxxxx Xxxx
P.O. Box 109
South Deerfield, MA 01373-0109
Attention: President
or to such other addresses as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
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22. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the Commonwealth of
Massachusetts.
23. Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement or to protect the
rights obtained hereunder, the prevailing party shall be entitled to its
reasonable attorneys' fees, costs and disbursements in addition to any other
relief to which it may be entitled.
IN WITNESS WHEREOF, the parties to this Agreement have caused
this Agreement to be duly executed as of the day and year first written above.
TELAXIS COMMUNICATIONS
CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President & CEO
INDEMNITEE:
/s/ Xxxxxxx Xxxx
----------------
Name: Xxxxxxx Xxxx
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