EXHIBIT 10.43
INDEMNIFICATION AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into this ___ day of
January, 2003 between Fiberstars, Inc., a California corporation (the
"Corporation"), and ________________________ ("Director").
WHEREAS, Director, a member of the Board of Directors of the Corporation,
performs a valuable service in such capacity for the Corporation;
WHEREAS, the Articles of Incorporation and Bylaws of the Corporation
authorize and permit contracts between the Corporation and a member of its Board
of Directors with respect to indemnification of such directors;
WHEREAS, in accordance with the authorization as provided by the
California General Corporation Law, as amended (the "Code"), the Corporation may
purchase and maintain a policy or policies of Directors and Officers Liability
Insurance ("D & O Insurance"), covering certain liabilities which may be
incurred by Director in his or her performance as a director of the Corporation;
and
WHEREAS, as a result of developments affecting the terms, scope and
availability of D & O Insurance there exists general uncertainty as to the
extent of protection afforded members of the Board of Directors by such D & O
Insurance and by statutory and bylaw indemnification provisions.
NOW, THEREFORE, in consideration of Director's service as a director, the
parties hereto agree as follows:
1. Indemnity of Director. The Corporation hereby agrees to hold harmless
and indemnify Director to the fullest extent authorized by the provisions of the
Code, as it may be amended from time to time.
2. Additional Indemnity. Subject only to the limitations set forth in
Section 3 hereof, the Corporation hereby further agrees to hold harmless and
indemnify Director:
(a) against any and all expenses (including attorneys' fees), witness
fees, judgments, fines and amounts paid in settlement actually and reasonably
incurred by Director in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including an action by or in the right of the Corporation) to
which Director is, was, or at any time becomes a party, or is threatened to be
made a party, by reason of the fact that Director is, was, or at any time
becomes a director, officer, employee or agent of the Corporation, or is or was
serving or at any time serves at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise; and
(b) otherwise to the fullest extent as may be provided to Director by the
Corporation under the Articles of Incorporation of the Corporation and the Code.
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3. Limitations on Additional Indemnity.
(a) No indemnity pursuant to Section 2 hereof shall be paid by the
Corporation for any of the following:
(i) except to the extent the aggregate of losses to be indemnified
thereunder exceeds the sum of such losses for which the Director is indemnified
pursuant to Section 1 hereof or pursuant to any D & O Insurance purchased and
maintained by the Corporation;
(ii) in respect to remuneration paid to Director if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(iii) on account of Director's acts or omissions that involve
intentional misconduct or a knowing and culpable violation of law;
(iv) on account of any action, claim or proceeding (other than a
proceeding referred to in Section 8(b) hereof) initiated by Director unless such
action, claim or proceeding was authorized in the specific case by action of the
Board of Directors;
(v) on account of Director's conduct which is the subject of an
action, suit or proceeding described in Section 7(c)(ii) hereof; or
(vi) if a final decision by a Court having jurisdiction in the
matter shall determine that such indemnification is not lawful (and, in this
respect, both the Corporation and Director have been advised that the Securities
and Exchange Commission believes that indemnification for liabilities arising
under the federal securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be submitted to
appropriate courts for adjudication).
(b) In addition to those limitations set forth above in paragraph (a) of
this Section 3, no indemnity pursuant to Section 2 hereof in an action by or in
the right of the Corporation shall be paid by the Corporation for any of the
following:
(i) on account of acts or omissions that Director believes to be
contrary to the best interests of the Corporation or its shareholders or that
involve the absence of good faith on the part of Director;
(ii) with respect to any transaction from which Director derived an
improper personal benefit;
(iii) on account of acts or omissions that show a reckless disregard
for Director's duty to the Corporation or its shareholders in circumstances in
which Director was aware, or should have been aware, in the ordinary course of
performing a director's duties, of a risk of serious injury to the Corporation
or its shareholders;
(iv) on account of acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of Director's duty to the
corporation or its shareholders;
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(v) to the extent prohibited by Section 310 of the California
Corporations Code, "Contracts In Which Director Has Material Financial
Interest";
(vi) to the extent prohibited by Section 316 of the California
Corporations Code, "Corporate Actions Subjecting Directors To Joint And Several
Liability" (for prohibited distributions, loans and guarantees);
(vii) in respect of any claim, issue or matter as to which Director
shall have been adjudged to be liable to the Corporation in the performance of
Director's duty to the Corporation and its shareholders, unless and only to the
extent that the court in which such proceeding is or was pending shall determine
upon application that, in view of all the circumstances of the case, Director is
fairly and reasonably entitled to indemnity for expenses and then only to the
extent that the court shall determine;
(viii) of amounts paid in settling or otherwise disposing of a
pending action without court approval; or
(ix) of expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval.
4. Contribution. If the indemnification provided in Sections 1 and 2
hereof is unavailable by reason of a Court decision described in subsection
3(a)(vi) hereof based on grounds other than any of those set forth in
subsections 3(a)(ii) through (v) hereof or in subsections 3(b)(i) through (vi)
hereof, then in respect of any threatened, pending or completed action, suit or
proceeding in which the Corporation is jointly liable with Director (or would be
if joined in such action, suit or proceeding), the Corporation shall contribute
to the amount of expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred and paid or payable
by Director in such proportion as is appropriate to reflect (i) the relative
benefits received by the Corporation on the one hand and Director on the other
hand from the transaction from which such action, suit or proceeding arose, and
(ii) the relative fault of the Corporation on the one hand and of Director on
the other in connection with the events which resulted in such expenses,
judgments, fines or settlement amounts, as well as any other relevant equitable
considerations. The relative fault of the Corporation on the one hand and of
Director on the other shall be determined by reference to, among other things,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent the circumstances resulting in such expenses, judgments,
fines or settlement amounts. The Corporation agrees that it would not be just
and equitable if contribution pursuant to this Section 4 were determined by pro
rata allocation or any other method of allocation which does not take account of
the foregoing equitable considerations.
5. Continuation of Obligations. All agreements and obligations of the
Corporation contained herein shall continue during the period Director is a
director, officer, employee or agent 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, employee benefit plan or
other enterprise) and shall continue thereafter so long as Director shall be
subject to any possible claim or threatened, pending or completed action, suit
or proceeding, whether
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civil, criminal or investigative, by reason of the fact that Director was a
director of the Corporation or serving in any other capacity referred to herein.
6. Notification and Defense of Claim. Not later than thirty (30) days
after receipt by Director of notice of the commencement of any action, suit or
proceeding, Director will, if a claim in respect thereof is to be made against
the Corporation under this Agreement, notify the Corporation of the commencement
thereof; but the omission so to notify the Corporation will not relieve it from
any liability which it may have to Director otherwise than under this Agreement.
With respect to any such action, suit or proceeding as to which Director
notifies the Corporation of the commencement thereof:
(a) the Corporation will be entitled to participate therein at its own
expense;
(b) except as otherwise provided below, to the extent that it may wish,
the Corporation jointly with any other indemnifying party similarly notified
will be entitled to assume the defense thereof, with counsel reasonably
satisfactory to Director. After notice from the Corporation to Director of its
election so as to assume the defense thereof, the Corporation will not be liable
to Director under this Agreement for any legal or other expenses subsequently
incurred by Director in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Director shall
have the right to employ its counsel in such action, suit or proceeding but the
fees and expenses of such counsel incurred after notice from the Corporation of
its assumption of the defense thereof shall be at the expense of Director unless
(i) the employment of counsel by Director has been authorized by the
Corporation, (ii) Director shall have reasonably concluded that there may be a
conflict of interest between the Corporation and Director in the conduct of the
defense of such action or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, in each of which cases the fees
and expenses of Director's separate counsel shall be at the expense of the
Corporation. The Corporation shall not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of the Corporation or as to
which Director shall have made the conclusion provided for in (ii) above; and
(c) the Corporation shall not be liable to indemnify Director under this
Agreement for any amounts paid in settlement of any action or claim effected
without its written consent. The Corporation shall be permitted to settle any
action except that it shall not settle any action or claim in any manner which
would impose any penalty or limitation on Director without Director's written
consent. Neither the Corporation nor Director will unreasonably withhold its
consent to any proposed settlement.
7. Advancement and Repayment of Expenses.
(a) In the event that Director employs his own counsel pursuant to Section
6(b)(i) through (iii) above, the Corporation shall advance to Director, prior to
any final disposition of any threatened or pending action, suit or proceeding,
whether civil, criminal, administrative or investigative, any and all reasonable
expenses (including legal fees and expenses) incurred in investigating or
defending any such action, suit or proceeding within ten (10) days after
receiving copies of invoices presented to Director for such expenses; and
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(b) Director agrees that Director will reimburse the Corporation for all
reasonable expenses paid by the Corporation in defending any civil or criminal
action, suit or proceeding against Director in the event and only to the extent
it shall be ultimately determined by a final judicial decision (from which there
is no right of appeal) that Director is not entitled, under applicable law, the
Bylaws, this Agreement or otherwise, to be indemnified by the Corporation for
such expenses.
(c) Notwithstanding the foregoing, the Corporation shall not be required
to advance such expenses to Director if Director (i) commences any action, suit
or proceeding as a plaintiff unless such advance is specifically approved by a
majority of the Board of Directors or (ii) is a party to an action, suit or
proceeding brought by the Corporation and approved by a majority of the Board
which alleges willful misappropriation of corporate assets by Director,
disclosure of confidential information in violation of Director's fiduciary or
contractual obligations to the Corporation, or any other willful and deliberate
breach in bad faith of Director's duty to the Corporation or its shareholders.
8. Enforcement. In the event Director is required to bring any action to
enforce rights or to collect moneys due under this Agreement and is successful
in such action, the Corporation shall reimburse Director for all of Director's
reasonable fees and expenses in bringing and pursuing such action.
9. Subrogation. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Director, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Corporation effectively to bring suit to enforce such rights.
10. Non Exclusivity of Rights. The rights conferred on Director by this
Agreement shall not be exclusive of any other right which Director may have or
hereafter acquire under any statute, provision of the Corporation's Certificate
of Incorporation or Bylaws, agreement, vote of stockholders or directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office.
11. Survival of Rights. The rights conferred on Director by this Agreement
shall continue after Director has ceased to be a director, officer, employee or
other agent of the Corporation and shall inure to the benefit of Director's
heirs, executors and administrators.
12. Severability. Each of the provisions of this Agreement is a separate
and distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions hereof.
13. Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of California.
14. Binding Effect. This Agreement shall be binding upon Director and upon
the Corporation, its successors and assigns, and shall inure to the benefit of
Director, his heirs, personal representatives and assigns and to the benefit of
the Corporation, its successors and assigns.
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15. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
FIBERSTARS, INC.
By
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Xxxxx Xxxxxxx
President and Chief Executive Officer
DIRECTOR
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[Print Name]
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