Exhibit 10.1
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FORM OF INDEMNIFICATION AGREEMENT
This Agreement is made as of the 1st day of March, 2008, by and between Cognex
Corporation, a Massachusetts corporation (the "Corporation"), and [Name of
Director] (the "Indemnitee"), a director of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
directors the most capable persons available, and
WHEREAS, the substantial increase in corporate litigation subjects
directors to expensive litigation risks at the same time that the availability
of directors' and officers' liability insurance has been severely limited, and
WHEREAS, it is now and has always been the express policy of the
Corporation to indemnify its directors, and
WHEREAS, the Indemnitee does not regard the protection available under the
Corporation's Articles of Organization, By-Laws and insurance as adequate in the
present circumstances, and may not be willing to serve or continue to serve as a
director without adequate protection, and
WHEREAS, the Corporation desires the Indemnitee to serve, or continue to
serve, as a director of the Corporation.
NOW, THEREFORE, the Corporation and the Indemnitee do hereby agree as
follows:
1. Agreement to Serve.
The Indemnitee agrees to serve or continue to serve as a director of the
Corporation for so long as the Indemnitee is duly elected or until such time as
the Indemnitee tenders a resignation in writing.
2. Third Party Actions.
The Corporation shall indemnify the Indemnitee if the Indemnitee was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (each, a "Proceeding") (other than an action by or in the right of
the Corporation), by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, trustee, principal, partner, 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 actually and reasonably incurred by the Indemnitee in
connection with such Proceeding.
3. Derivative Actions.
The Corporation shall indemnify the Indemnitee if the Indemnitee was or is
a party or is threatened to be made a party to any Proceeding by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
the Indemnitee is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, trustee, principal, partner, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by the
Indemnitee in connection with the defense or settlement of such Proceeding.
4. Expenses.
To the extent that the Indemnitee has been successful on the merits or
otherwise in defense of any Proceeding referred to in Sections 2 and 3, or in
defense of any claim, issue or matter therein, the Indemnitee shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by the Indemnitee in connection therewith.
5. Authorization and Request for Indemnification.
(a) Any indemnification requested by the Indemnitee under Section 2 hereof
shall be made no later than ten (10) days after receipt of the written request
of the Indemnitee, unless with respect to such matter it shall have been
adjudicated in any proceeding that the Indemnitee did not act in good faith in
the reasonable belief that his action was in the best interests of the
Corporation, or to the extent that such matter relates to service with respect
to an employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan, and with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
(b) Any indemnification requested by the Indemnitee under Section 3 hereof
shall be made no later than ten (10) days after receipt of the written request
of the Indemnitee, unless with respect to such matter it shall have been
adjudicated in any proceeding that the Indemnitee did not act in good faith in
the reasonable belief that his action was in the best interests of the
Corporation, or to the extent that such matter relates to service with respect
to an employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan, or unless the Indemnitee shall have
been finally adjudged to be liable to the Company by a court of competent
jurisdiction due to willful misconduct of a culpable nature in the performance
of the Indemnitee's duty to the Corporation unless and only to the extent that
any court in which such Proceeding was brought shall determine upon application
that despite the adjudication of liability, but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses as such court shall deem proper.
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6. Advance Payment of Expenses.
Subject to Section 5 above, the Corporation shall advance all expenses
incurred by the Indemnitee in connection with the investigation, defense,
settlement or appeal of any Proceeding to which the Indemnitee is a party or is
threatened to be made a party by reason of the fact that the Indemnitee is or
was an agent of the Corporation. The Indemnitee hereby undertakes to repay such
amounts advanced only if, and to the extent that, it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified by the
Corporation. The advances to be made hereunder shall be paid by the Corporation
to or on behalf of the Indemnitee within thirty (30) days following delivery of
a written request therefor by the Indemnitee to the Corporation.
7. Remedies.
The right to indemnification or advancement of expenses as provided by this
Agreement shall be enforceable by the Indemnitee in any court of competent
jurisdiction. Unless otherwise required by law, the burden of proving that
indemnification is not appropriate shall be on the Corporation. The Indemnitee's
expenses reasonably incurred in connection with successfully establishing the
Indemnitee's right to indemnification, in whole or in part, in any such
Proceeding shall also be indemnified by the Corporation.
8. Partial Indemnification.
If the Indemnitee is entitled under any provision of this Agreement to
indemnification by the Corporation for some or a portion of the expenses,
judgments, fines, penalties or amounts paid in settlement actually and
reasonably incurred by or on behalf of the Indemnitee in connection with any
Proceeding but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses,
judgments, fines, penalties or amounts paid in settlement to which the
Indemnitee is entitled.
9. 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 the
Indemnitee, who 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.
10. Term of Agreement.
This Agreement shall continue until and terminate upon the later of (a) six
(6) years after the date that the 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, trustee, principal, partner, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise or (b) the
final termination of all Proceedings pending on the date set forth in clause (a)
in respect of which the Indemnitee is granted rights of indemnification or
advancement of expenses hereunder and of any proceeding commenced by the
Indemnitee pursuant to Paragraph 7 of this Agreement relating thereto.
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11. Indemnification Hereunder Not Exclusive.
The indemnification and advancement of expenses provided by this Agreement
shall not be deemed exclusive of any other rights to which the Indemnitee may be
entitled under the Articles of Organization, the By-Laws, any other agreement,
any vote of stockholders or disinterested directors, Chapter 156D of the
Massachusetts General Laws (the Massachusetts Business Corporation Act), any
other law (common or statutory), or otherwise, both as to action in the
Indemnitee's 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 the Indemnitee against any expense, liability
or loss incurred by it or the Indemnitee in any such capacity, or arising out of
the Indemnitee's status as such, whether or not the Indemnitee would be
indemnified against such expense, liability or loss under this Agreement;
provided that the Corporation shall not be liable under this Agreement to make
any payment of amounts otherwise identifiable hereunder if and to the extent
that the Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.
12. No Special Rights.
Nothing herein shall confer upon the 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.
13. Savings Clause.
If this Agreement or any portion thereof shall be invalidated on any ground
by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify the Indemnitee as to expenses, judgments, fines, penalties and amounts
paid in settlement with respect to any Proceeding to the full extent permitted
by any applicable portion of this Agreement that shall not have been invalidated
and to the fullest extent permitted by applicable law.
14. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall constitute the original.
15. Successors and Assigns.
This Agreement shall be binding upon the Corporation and its successors and
assigns and shall inure to the benefit of the estate, heirs, executors,
administrators and personal representatives of the Indemnitee.
16. 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.
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17. 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.
18. 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 the Indemnitee, to: [Director Name]
[Address]
(b) if to the Corporation, to: Cognex Corporation
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or to such other address as may have been furnished to the Indemnitee by the
Corporation or to the Corporation by the Indemnitee, as the case may be.
19. Applicable Law.
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the Commonwealth of Massachusetts. The Indemnitee
may elect to have the right to indemnification or reimbursement or advancement
of expenses interpreted on the basis of the applicable law in effect at the time
of the occurrence of the event or events giving rise to the applicable
Proceeding, to the extent permitted by law, or on the basis of the applicable
law in effect at the time such indemnification or reimbursement or advancement
of expenses is sought. Such election shall be made, by a notice in writing to
the Corporation, at the time indemnification or reimbursement or advancement of
expenses is sought; provided, however, that if no such notice is given, and
Chapter 156D of the Massachusetts General Laws is amended, or other
Massachusetts law is enacted, to permit further indemnification of the directors
and officers, then the Indemnitee shall be indemnified to the fullest extent
permitted under Chapter 156D of the Massachusetts General Laws, as so amended,
or by such other Massachusetts law, as so enacted.
20. Enforcement.
The Corporation expressly confirms and agrees that it has entered into this
Agreement in order to induce the Indemnitee to continue to serve as an officer
or director of the Corporation, and acknowledges that the Indemnitee is relying
upon this Agreement in continuing in such capacity.
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21. Entire Agreement.
This Agreement sets forth the entire agreement of the parties hereto in
respect of the subject matter contained herein and supersedes all prior
agreements, whether oral or written, by any officer, employee or representative
of any party hereto in respect of the subject matter contained herein; and any
prior agreement of the parties hereto in respect of the subject matter contained
herein is hereby terminated and cancelled. For avoidance of doubt, the parties
confirm that the foregoing does not apply to or limit the Indemnitee's rights
under Massachusetts law or the Corporation's Articles of Organization or
By-Laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
COGNEX CORPORATION
Attest: By:
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By: Name:
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Name: Title:
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INDEMNITEE:
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[Name of Director]
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