INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, made as of ________, 2000 between Ulticom,
Inc., a New Jersey corporation (the "Company") and _________________ (the
"Indemnitee").
WHEREAS, the Indemnitee is a member of the Board of Directors of the
Company and/or an officer of the Company and in such capacity is performing a
valuable service for the Company; and
WHEREAS, the Company's Certificate of Incorporation (the "Certificate
of Incorporation") provides for indemnification in accordance with Section 3-5
of the New Jersey Business Corporation Act (the "Indemnification Statute");
WHEREAS, the Indemnification Statute provides that the
indemnification rights provided thereunder are not exclusive, and that
agreements may be entered into between the Company and members of its Board of
Directors and Officers with respect to indemnification; and
WHEREAS, the Company deems it desirable and in its best interests for
it to enter into this contract with the Indemnitee.
NOW THEREFORE, the parties hereto agree as follows:
1. Mandatory Indemnification. The Company shall, to the fullest extent allowed
by applicable law (including the indemnification permitted by Section 14A:3-5 of
the New Jersey Business Corporation Act) indemnify and hold harmless the
Indemnitee from and against any and all expenses (including reasonable attorneys
fees), amounts paid or incurred in satisfaction of settlements, judgments,
fines, penalties, liabilities and similar or related items incurred or suffered
or threatened to be incurred or suffered in any pending, threatened or completed
actions, suits or proceedings, whether civil, criminal, administrative
arbitrative or investigative (including any appeal therein and any inquiry or
investigation which could lead to such suit, action or procedure) by reason of
his being or having been (or to the fullest extent permitted by law otherwise
related to the fact that he is or was) (a) a director, officer, employee or
agent of the Company or of any constituent corporation absorbed by the Company
in a consolidation or merger or (b) a director, officer, trustee, employee or
agent of any direct or indirect subsidiary of the Company (collectively,
"Subsidiary") or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise or entity of any kind or nature
(collectively, including such Subsidiaries, "Other Enterprises"), which he
served in such capacity with respect to such Other Enterprise at the request of
the Company or any such constituent corporation (collectively, "Proceedings). To
the fullest extent permitted by applicable law, the Indemnitee shall be entitled
to a conclusive presumption that any service as a director, officer, employee or
agent for a Subsidiary was at the request of the Company, and the confirmation
in any one or more instances that such service was at the request of the Company
shall not alter such conclusive presumption. The foregoing right to
indemnification applies to any Proceeding in which the Indemnitee is made, or is
threatened to be made, a party. It is understood that the Company shall not be
obligated pursuant to the terms of this Agreement to indemnify the Indemnitee if
a final decision by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful; in this respect, the Indemnitee has
been advised that the Securities and Exchange Commission takes the position that
indemnification for liabilities arising under the federal securities laws is
against public policy and is, therefore, unenforceable. To the extent such
claims relate to securities laws, the Company may, prior to the Company being
obligated to make payments under this Agreement, submit for resolution to a
court the question of whether the Company has the right to indemnify the
Indemnitee under applicable securities laws.
1. Mandatory Advancement of Expenses. The Company shall to the fullest extent
permitted by the New Jersey Business Corporation Act from time to time in effect
(the "BCA") advance, within 15 days of the presentation of same to the Company,
all costs and expenses (including attorneys' fees and expenses) incurred by the
Indemnitee with respect to any one or more Proceedings, whether civil, criminal,
administrative or investigative. The Indemnitee hereby agrees to repay such
costs and expenses if it shall ultimately be determined that the Indemnitee is
not entitled to be indemnified by the Company under the BCA. Such mandatory
obligation to advance costs and expenses shall, to the extent permitted by law,
include costs and expenses incurred in asserting affirmative defenses,
counterclaims and cross-claims.
2. Continuation of Indemnification. All obligations of the Company hereunder
shall continue during the period the Indemnitee is a director, officer, employee
or agent of the Company (or is serving at the request of the Company as a
director, officer, employee, trustee or agent of any Other Enterprise) and shall
continue thereafter so long as the Indemnitee shall be subject to any possible
Proceeding by reason of the fact that Indemnitee is or was a director, officer,
employee or agent of the Company or is or was serving on behalf of an Other
Enterprise in any capacity referred to in Paragraph 1 hereof.
3. Procedural Requirements. With respect to any claims or other matters for
which the Indemnitee seeks indemnification from the Company, (a) the Indemnitee
shall not settle any such claims or other matters without the prior written
consent of the Company, which consent shall not be unreasonably withheld or
delayed; (b) except to the extent that the Company and the Indemnitee have a
conflict of interest, the Company shall have the right to defend the Indemnitee;
and (c) except to the extent the Indemnitee has a conflict of interest with
other directors and officers, the Company shall be entitled to have one law firm
represent all of the directors and officers making indemnification claims in
connection with the same matter.
4. Non-Exclusive Provisions Re: Indemnification and Advancement. The
indemnification against settlements, judgments, expenses and other matters and
the advancement of costs and expenses provided for in this Agreement shall not
be deemed exclusive of any other rights to indemnification and/or advancement
which the Indemnitee may be entitled under any agreement, any vote of
stockholders and/or disinterested directors, the Company's Certificate of
Incorporation or Bylaws, or otherwise.
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5. Other Provisions. It is understood that the parties intend this Agreement to
be interpreted and enforced so as to provide indemnification and advancement of
expenses to the Indemnitee to the fullest extent permitted by applicable law as
then in effect. Without limiting the generality of Section 1 hereof or the
preceding sentence, if the Indemnitee is successful in any material respect in
bringing any action to enforce any rights under this Agreement, the Indemnitee
shall, to the fullest extent permitted by law, be entitled to recover all
reasonable fees and expenses in bringing and pursuing such action. In addition,
the Indemnitee may in his sole discretion apply to any court of competent
jurisdiction for specific performance and/or injunctive relief in order to
enforce, or prevent any violations of, the provisions of this Agreement. If any
provision of this Agreement or the application thereof to any entities or
individuals ("Persons") or circumstance(s) shall be invalid or unenforceable to
any extent, (i) the remainder of this Agreement and the application of such
provision to other Persons or circumstance(s) shall not be effected thereby; and
(ii) each such provision shall be enforced to the greatest extent permitted by
law. Use of the words "hereby," "herein," "hereto," `hereof," "hereunder," and
similar words, shall be deemed to refer to this Agreement in its entirety, and
not solely to the Section or Subsection in which any such word appears; "
including," "includes," or "include" shall mean "including but not limited to,"
"includes but is not limited to," and "include but not limited to". All personal
pronouns used in this Agreement, whether used in the masculine, feminine or
neuter gender, shall include all other genders; the singular shall include the
plural, and vice versa. Titles of Sections are for convenience only, and shall
not modify rights and obligations created by this Agreement. This Agreement
shall be binding on and inure to the benefit of successors, assigns, legatees,
distributees, heirs, executors, guardians, administrators, estates and other
legal representatives. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instruction in
writing, signed by the party against which enforcement of such change, waiver,
discharge or termination is sought. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of which
when taken together shall constitute but one Agreement. It shall not be
necessary that any counterpart be signed by the parties so long as each Party
shall have executed a counterpart. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof and
supersedes any prior understandings, agreements or representations between the
parties, written or oral, which may relate to the subject matter hereof,
provided that the provisions of this Agreement are supplementary to, and not in
place of any provisions relating to indemnification and/or liability of
directors and officers contained in the Company's Certificate of Incorporation
and By-Laws and rights and remedies provided under any insurance policy. This
Agreement shall be governed by and construed according to the laws of the State
of New Jersey, without giving effect to principles of conflicts of law in New
Jersey.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first set forth above.
ULTICOM, INC.
By:
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Name:
Title:
INDEMNITEE
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