INDEMNIFICATION AGREEMENT (the
"Agreement") dated as of April 2, 2002
ROBOTIC VISION SYSTEMS INC., a Delaware
corporation (including any successors
thereto, the "Company") and XXX X. XXXXX
("Indemnitee").
The Company, Indemnitee and another person have been named as defendants
in certain purported class actions stemming from the Company's May 2001
restatement of certain of its consolidated financial statements (the
"Restatement"). Under the Company's Amended and Restated Certificate of
Incorporation, the Company may provide its executive officers with
indemnification against claims and actions against them arising out of their
service to, and activities on behalf of, the Company. The parties desire that
the Company obligate itself contractually to indemnify Indemnitee to the fullest
extent permitted by applicable law.
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants contained in this Agreement, the Company and Indemnitee hereby
covenant and agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement:
(a) Change of Control shall mean the occurrence of any of the
following events:
(i) The acquisition after the date hereof by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d) (2)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) (a "Person") of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 15% or more of
either (x) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (y) the combined
voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that
for purposes of this paragraph (i), the following acquisitions shall
not constitute a Change of Control: any acquisition directly from
the Company or any Subsidiary thereof; any acquisition by the
Company or any Subsidiary thereof; any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any Subsidiary of the Company; or any acquisition by any
entity or its security holders pursuant to a transaction which
complies with clauses (A), (B), and (C) of paragraph (iii) below;
(ii) Individuals who, as of the Agreement Date, constitute the
Board (the "Incumbent Board"), cease for any reason to constitute at
least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the Agreement Date
whose election or appointment by the Board or nomination for
election by the Company's stockholders was approved by a vote of at
least a majority of the directors then comprising the Incumbent
Board shall be
considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal
of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board;
(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially
all of the assets of the Company or an acquisition of assets of
another corporation (a "Business Combination"), in each case unless,
following such Business Combination, (A) all or substantially all of
the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors
of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of
such transaction owns the Company or all or substantially all of the
Company's assets either directly or indirectly or through one or
more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Outstanding Company Voting Securities, (B) no Person (excluding any
employee benefit plan or related trust) of the Company, or the
corporation resulting from such Business Combination, beneficially
owns, directly or indirectly, 15% or more of the combined voting
power of the then outstanding voting securities of such corporation
except to the extent that such ownership of the Company existed
prior to the Business Combination and (C) at least a majority of the
members of the Board of Directors of the corporation resulting from
such Business Combination were the members of the Incumbent Board at
the time of the execution of the initial agreement, or of the action
of the Board, providing for such Business Combination;
(iv) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company; or
(v) The Indemnitee ceasing to serve as the Company's Chairman,
President and Chief Executive Officer for any reason.
(b) Claim shall mean any threatened, pending, or completed action,
suit, or proceeding (including, without limitation, securities laws actions,
suits, and proceedings and also any cross claim or counterclaim in any action,
suit, or proceeding), whether civil, criminal, arbitral, administrative, or
investigative in nature, or any inquiry or investigation (including discovery),
whether conducted by the Company or another Person, that Indemnitee in good
faith believes could reasonably be expected to lead to the institution of any
action, suit, or proceeding.
(c) Expenses shall mean all costs, expenses (including attorneys'
and expert witnesses' fees), and obligations paid or incurred in connection with
investigating, defending, (including affirmative defenses and counterclaims),
being a witness in, or participating in
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(including on appeal), or preparing to defend, be a witness in, or participate
in, any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event shall mean any actual or alleged act,
omission, statement, misstatement, event, or occurrence related to the fact that
Indemnitee is or was a director, officer, agent, or fiduciary of the Company, or
is or was serving at the request of the Company as a director, officer, trustee,
agent, or fiduciary of another corporation, partnership, joint venture, employee
benefit plan, trust, or other enterprise, or by reason of an actual or alleged
thing done or not done by Indemnitee in any such capacity, arising out of or in
connection with the Restatement or in the events which gave rise to the need for
the Company to make the Restatement. For purposes of this Agreement, the Company
agrees that Indemnitee's service on behalf of or with respect to any Subsidiary
or employee benefit plan of the Company or any Subsidiary of the Company shall
be deemed to be at the request of the Company.
(e) Indemnifiable Liabilities shall mean all Expenses and all
other liabilities, damages (including, without limitation, punitive, exemplary,
and the multiplied portion of any damages), judgments, payments, fines,
penalties, amounts paid in settlement, and awards paid or incurred that arise
out of, or in any way relate to, any Indemnifiable Event.
(f) Person shall mean any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated association, or
other form of business or legal entity or governmental entity.
(g) Potential Change of Control shall be deemed to have occurred
if: (i) the Company enters into an agreement, the consummation of which would
result in the occurrence of a Change of Control, (ii) any Person (including the
Company) publicly announces an intention to take or to consider taking actions
that, if consummated, would constitute a Change of Control and the success and
consummation of such intention reasonably appears to be more likely than not, or
(iii) the Board adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change of Control has occurred, except in each case for a
transaction in which an Indemnitee is participating as an active principal and
not solely as a result of such Indemnitee's position as a director or officer.
(h) Reviewing Party shall mean those members of the Board who are
not parties to the particular Claim for which Indemnitee is seeking
indemnification or if a Change of Control has occurred or if there is a
Potential Change of Control and Indemnitee so requests, or if such members of
the Board so elect, or if all of the members of the Board are parties to such
Claim, Special Counsel.
(i) Special Counsel shall mean special, independent legal counsel
selected by Indemnitee and approved by the Company (which approval shall not be
unreasonably withheld), and who has not otherwise performed material services
for the Company or for Indemnitee within the last three years (other than as
Special Counsel under this Agreement or similar agreements). Notwithstanding the
foregoing, Skadden, Arps, Slate, Meagler & Xxxx LLP may serve as Special
Counsel.
(j) Subsidiary shall mean, with respect to any Person, any
corporation or other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly or indirectly, by
that Person.
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2. INDEMNIFICATION AND EXPENSE ADVANCEMENT.
(a) The Company shall indemnify Indemnitee and hold Indemnitee
harmless to the fullest extent permitted by law, as soon as practicable, but in
no event later than 30 days after written demand is presented to the Company,
from and against any and all Indemnifiable Liabilities. Notwithstanding the
foregoing, the obligations of the Company under this Section 2(a) shall be
subject to the condition that the Reviewing Party shall not have determined (in
a written opinion, in any case in which Special Counsel is involved) that
Indemnitee is not permitted to be indemnified under applicable law. Nothing
contained in this Agreement shall require any determination under this Section
2(a) to be made by the Reviewing Party prior to the disposition or conclusion or
the Claim against the Indemnitee.
(b) If so requested by Indemnitee, the Company shall advance to
Indemnitee all reasonable expenses incurred by Indemnittee to the fullest extent
permitted by law (or, if applicable, reimburse Indemnitee for any and all
reasonable Expenses incurred by Indemnitee and previously paid by Indemnitee)
within ten business days after such request (an "Expense Advance") and delivery
by Indemnitee of an undertaking to repay Expense Advances if and to the extent
such undertaking is required by applicable law prior to the Company's payment of
Expense Advances. The Company shall be obligated from time to time at the
request of Indemnitee to make or pay an Expense Advance in advance of the final
disposition or conclusion of any Claim. In connection with any request for an
Expense Advance, if requested by the Company, Indemnitee or Indemnitee's counsel
shall submit an affidavit stating that the Expenses to which the Expense Advance
relate are reasonable. Any dispute as to the reasonableness of any Expense shall
not delay an Expense Advance by the Company. If, when, and to the extent that
the Reviewing Party determines that Indemnitee would not be permitted to be
indemnified with respect to a Claim under applicable law or the amount of the
Expense Advance was not reasonable, the Company shall be entitled to be
reimbursed by Indemnitee and Indemnitee hereby agrees to reimburse the Company
without interest (which agreement shall be an unsecured obligation of
Indemnitee) for (x) all related Expense Advances theretofore made or paid by the
Company in the event that it is determined that indemnification would not be
permitted or (y) the excessive portion of any Expense Advances in the event that
it is determined that such Expense Advances were unreasonable, in either case,
if and to the extent such reimbursement is required by applicable law; provided,
however, that if Indemnitee has commenced legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee could be
indemnified under applicable law, or that the Expense Advances were reasonable,
any determination made by the Reviewing Party that Indemnitee would not be
permitted to be indemnified under applicable law or that the Expenses Advances
were unreasonable shall not be binding, and the Company shall be obligated to
continue to make Expense Advances until a final judicial determination is made
with respect thereto (as to which all rights of appeal therefrom have been
exhausted or lapsed), which determination shall be conclusive and binding. If
there has been no determination by the Reviewing Party or if the Reviewing Party
determines that Indemnitee substantively is not permitted to be indemnified in
whole or part under applicable law or that any Expense Advances were
unreasonable, Indemnitee shall have the right to commence litigation in any
court in the Commonwealth of Massachusetts having subject matter jurisdiction
thereof and in which venue is proper seeking an initial determination by the
court or challenging any such determination by the Reviewing Party or any aspect
thereof, and the Company hereby consents to service of process and to
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appear in any such proceeding. Any determination by the Reviewing Party
otherwise shall be conclusive and binding on the Company and Indemnitee.
(c) Nothing in this Agreement, however, shall require the Company
to indemnify Indemnitee with respect to any Claim initiated by Indemnitee, other
than a Claim solely seeking enforcement of the Company's indemnification
obligations to Indemnitee or a Claim authorized by the Board.
3. CHANGE OF CONTROL. The Company agrees that, if there is a Change of
Control, or if there is a Potential Change of Control and Indemnitee requests in
writing that Special Counsel be the Reviewing Party, then Special Counsel shall
be the Reviewing Party. The Company agrees to pay the reasonable fees of Special
Counsel and to indemnify Special Counsel against any and all expenses (including
attorneys' fees), claims, liabilities, and damages arising out of or relating to
this Agreement or Special Counsel's engagement pursuant hereto.
4. INDEMNIFICATION FOR ADDITIONAL EXPENSES. The Company shall indemnify
Indemnitee against any and all costs and expenses (including attorneys' and
expert witnesses' fees) and, if requested by Indemnitee, shall (within ten
business days of that request) advance those costs and expenses to Indemnitee
that are incurred by Indemnitee if Indemnitee, whether by formal proceedings or
through demand and negotiation without formal proceedings: (a) seeks to enforce
Indemnitee's rights under this Agreement; (b) seeks to enforce Indemnitee's
rights to expense advancement or indemnification under any other agreement or
provision of the Company's Amended and Restated Certificate of Incorporation, as
the same may have been amended from time to time (the "Certificate of
Incorporation"), or the Company's Bylaws (the "Bylaws") now or hereafter in
effect relating to Claims for Indemnifiable Events; or (c) seeks recovery under
any directors' and officers' liability insurance policies maintained by the
Company, in each case regardless of whether Indemnitee ultimately prevails;
provided that a court of competent jurisdiction has not found Indemnitee's claim
for indemnification or expense advancements under the foregoing clauses (a), (b)
or (c) to be frivolous, presented for an improper purpose, without evidentiary
support, or otherwise sanctionable under Federal Rule of Civil Procedure No. 11
or an analogous rule or law, or beyond the scope of indemnification permitted by
the Delaware General Corporation Law, and provided, further, that if a court
makes such a finding, Indemnitee shall reimburse the Company for all amounts
previously advanced to Indemnitee pursuant to this Section 4.
5. PARTIAL INDEMNITY. If Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some, but not all, of
Indemnitee's Indemnifiable Liabilities, the Company shall indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled.
6. CONTRIBUTION.
(a) Contribution Payment. To the extent the indemnification
provided for under any provision of this Agreement is determined (in the manner
hereinabove provided) not to be permitted under applicable law, the Company, in
lieu of indemnifying Indemnitee shall, to the extent permitted by law,
contribute to the amount of any and all Indemnifiable Liabilities incurred or
paid by Indemnitee for which such indemnification is not permitted. The amount
the Company contributes shall be in such proportion as is appropriate to reflect
the relative fault of Indemnitee, on the one hand, and the Company and any and
all other parties (including officers
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and directors of the Company other than Indemnitee) who may be at fault
(collectively, including the Company, the "Third Parties"), on the other hand.
(b) Relative Fault. The relative fault of the Third Parties and
the Indemnitee shall be determined by reference to the relative fault of
Indemnitee as determined by the court or other governmental agency or, to the
extent such court or other governmental agency does not apportion relative
fault, by the Reviewing Party (which shall include Special Counsel) after giving
effect to, among other things, the relative intent, knowledge, access to
information, and opportunity to prevent or correct the relevant events, of each
party, and other relevant equitable considerations. The Company and Indemnitee
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in this Section 6(b).
7. SEPARATE COUNSEL. As of the date hereof, the Company and Indemnitee
are represented by the same legal counsel in connection with certain Claims
relating to the Restatement. The parties acknowledge that all fees and expenses
of such counsel shall be paid by the Company. In the event that there is a
reasonable probability that the continued representation of both the Company and
Indemnitee by such counsel in any action, suit or proceeding would present such
counsel with a conflict of interest, Indemnitee may be represented by separate
counsel, and the reasonable expenses of such counsel shall be considered
Expenses subject to this Agreement.
8. NO PRESUMPTION. For purposes of this Agreement, the termination of
any Claim by judgment, order, settlement (whether with or without court
approval), or conviction, or upon a plea of nolo contendere, or its equivalent,
or an entry of an order or probation prior to judgment shall not create a
presumption (other than a presumption arising as a matter of law that the
parties may not contractually agree to disregard) that Indemnitee did not meet
any particular standard of conduct or have any particular belief or that a court
has determined that indemnification is not permitted by applicable law.
9. NON-EXCLUSIVITY. The rights of Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Certificate of
Incorporation or the Bylaws or the Delaware General Corporation Law or
otherwise. To the extent that a change in the Delaware General Corporation Law
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Bylaws or the Certificate
of Incorporation and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded by
that change. Indemnitee's rights under this Agreement shall not be diminished by
any amendment to the Certificate of Incorporation or Bylaws, or of any other
agreement or instrument to which Indemnitee is not a party, and shall not
diminish any other rights that Indemnitee now or in the future has against the
Company.
10. PERIOD OF LIMITATIONS. No action, lawsuit, or proceeding may be
brought against Indemnitee or Indemnitee's spouse, heirs, executors, or personal
or legal representatives, nor may any cause of action be asserted in any such
action, lawsuit, or proceeding, by or on behalf of the Company, after the
expiration of two years after the running of the statute of limitations
commences with respect to Indemnitee's act or omission that gave rise to the
action, lawsuit, proceeding, or cause of action; provided, however, that if any
shorter period of limitations is
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otherwise applicable to any such action, lawsuit, proceeding, or cause of
action, the shorter period shall govern.
11. AMENDMENTS. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by all of the parties
hereto. No waiver of any provision of this Agreement shall be effective unless
in a writing signed by the party or parties granting the waiver. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall that
waiver constitute a continuing waiver.
12. OTHER SOURCES. Indemnitee shall not be required to exercise any
rights that Indemnitee may have against any other Person (for example, under an
insurance policy) before Indemnitee enforces his rights under this Agreement.
However, to the extent the Company actually indemnifies Indemnitee or advances
Indemnitee Expenses, the Company shall be subrogated to the rights of Indemnitee
and shall be entitled to enforce any such rights which Indemnitee may have
against third parties. Indemnitee shall assist the Company in enforcing those
rights if it pays Indemnitee's costs and expenses of doing so. If Indemnitee is
actually indemnified or advanced Expenses by any third party, then, for so long
as Indemnitee is not required to disgorge the amounts so received, to that
extent the Company shall be relieved of its obligation to indemnify Indemnitee
or advance Indemnitee Expenses.
13. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors, assigns (including any direct or indirect successor by merger or
consolidation), spouses, heirs, and personal and legal representatives. This
Agreement shall continue in effect regardless of whether Indemnitee continues to
serve as an officer or director of the Company or another enterprise at the
Company's request.
14. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term hereof, that provision shall be fully severable; this Agreement shall
be construed and enforced as if that illegal, invalid, or unenforceable
provision had never comprised a part hereof; and the remaining provisions shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of that illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Agreement a provision as similar
in terms to the illegal, invalid, or unenforceable provision as may be possible
and be legal, valid, and enforceable.
15. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Massachusetts
applicable to contracts made and to be performed in that state without giving
effect to the principles of conflicts of law.
16. HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
17. NOTICES. Whenever this Agreement requires or permits notice to be
given by one party to the others, such notice must be in writing to be effective
and shall be deemed delivered and received by the party to whom it is sent upon
actual receipt (by any means) of such notice.
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Receipt of a notice by the Secretary of the Company shall be deemed receipt of
such notice by the Company.
18. COMPLETE AGREEMENT. This Agreement constitutes the complete
understanding and agreement among the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings between the
parties with respect to the subject matter hereof, other than any
indemnification rights that Indemnitee may enjoy under the Certificate of
Incorporation, the Bylaws, or the Delaware General Corporation Law.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but in making proof
hereof it shall not be necessary to produce or account for more than one such
counterpart.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
written above.
ROBOTIC VISION SYSTEMS INC.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
INDEMNITEE:
/s/ Xxx X. Xxxxx
------------------------------------------
XXX X. XXXXX
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