Exhibit
10.1


 


INDEMNIFICATION
AGREEMENT


 


 


This Agreement made and
entered into this     day of    , (the “Agreement”),
by and between Ezenia! Inc., a Delaware corporation (the “Company,” which term
shall include, where appropriate, any Entity (as hereinafter defined)
controlled directly or indirectly by the Company and                 
(the “Indemnitee”):


 


WHEREAS, it is essential
to the Company that it be able to retain and attract as directors &
officers the most capable persons available;


 


WHEREAS, increased
corporate litigation has subjected directors & officers to litigation
risks and expenses, and the limitations on the availability of directors and
officers liability insurance have made it increasingly difficult for the
Company to attract and retain such persons;


 


WHEREAS, the Company’s Certificate of Incorporation and By-laws (the
“Certificate of Incorporation” and “By-laws,” respectively) require it
to indemnify its directors &
officers to the fullest extent permitted by law and permit it to make other
indemnification arrangements and agreements;


 


WHEREAS, the Company
desires to provide Indemnitee with specific contractual assurance of Indemnitee’s
rights to full indemnification against litigation risks and expenses
(regardless, among other things, of any amendment to or revocation of the Certificate of Incorporation or By-laws
or any change in the ownership of the Company or the composition of its Board
of Directors);


 


WHEREAS, the Company
intends that this Agreement provide Indemnitee with greater protection than
that which is provided by the Company’s Certificate
of Incorporation and By-laws; and


 


WHEREAS, Indemnitee is
relying upon the rights afforded under this Agreement in continuing as  a director or officer of the Company.


 


NOW, THEREFORE, in consideration
of the promises and the covenants contained herein, the Company and Indemnitee
do hereby covenant and agree as follows:


 


1.             Definitions.


 


(a)           “Corporate
Status” describes the status of a person who is serving or has served (i) as
a director of the Company or officer of the company,  (ii) in any capacity with respect to any employee
benefit plan of the Company, or (iii) as a director, partner, trustee,
officer, employee, or agent of any other Entity at the


 

















 


request of the Company.  For purposes of subsection (iii) of this
Section 1(a), if Indemnitee  is
serving or has served as a director, partner, trustee, officer, employee or
agent of a Subsidiary, Indemnitee shall be deemed to be serving at the request
of the Company.


 


(b)           “Entity”
shall mean any corporation, partnership, limited liability company, joint
venture, trust, foundation, association, organization or other legal entity.


 


(c)           “Expenses”
shall mean all fees, costs and expenses incurred by Indemnitee in connection
with any Proceeding (as defined below), including, without limitation,
attorneys’ fees, disbursements and retainers (including, without limitation,
any such fees, disbursements and retainers incurred by Indemnitee pursuant to
Sections 11 and 12(c) of this Agreement), fees and disbursements of
expert witnesses, private investigators and professional advisors (including,
without limitation, accountants and investment bankers), court costs,
transcript costs, fees of experts, travel expenses, duplicating, printing and
binding costs, telephone and fax transmission charges, postage, delivery
services, secretarial services, and other disbursements and expenses.


 


(d)           “Indemnifiable
Expenses,” “Indemnifiable Liabilities” and “Indemnifiable Amounts” shall have
the meanings ascribed to those terms in Section 3(a) below.


 


(e)           “Liabilities”
shall mean judgments, damages, liabilities, losses, penalties, excise taxes,
fines and amounts paid in settlement.


 


(f)            “Proceeding”
shall mean any threatened, pending or completed claim, action, suit, arbitration,
alternate dispute resolution process, investigation, administrative hearing,
appeal, or any other proceeding, whether civil, criminal, administrative,
arbitrative or investigative, whether formal or informal, including a
proceeding initiated by Indemnitee pursuant to Section 11 of this
Agreement to enforce Indemnitee’s rights hereunder.


 


(g)           “Subsidiary” shall mean any
corporation, partnership, limited liability company, joint venture, trust or
other Entity of which the Company owns (either directly or through or together
with another Subsidiary of the Company) either (i) a general partner,
managing member or other similar interest or (ii) (A) 50% or more of
the voting power of the voting capital equity interests of such corporation,
partnership, limited liability company, joint venture or other Entity, or (B) 50%
or more of the outstanding voting capital stock or other voting equity
interests of such corporation, partnership, limited liability company, joint
venture or other Entity.


 


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2.             Services
of Indemnitee.  In
consideration of the Company’s covenants and commitments hereunder, Indemnitee
agrees to serve or continue to serve as a director or officer of the
Company.  However, this Agreement shall not
impose any obligation on Indemnitee or the Company to continue Indemnitee’s
service to the Company beyond any period otherwise required by law or by other
agreements or commitments of the parties, if any.


 


3.             Agreement
to Indemnify.  The
Company agrees to indemnify Indemnitee as follows:


 


(a)           Proceedings
Other Than By or In the Right of the Company.  Subject to the exceptions contained in Section 4(a) below,
if Indemnitee was or is a party or is threatened to be made a party to any
Proceeding (other than an action by or in the right of the Company) by reason
of Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the
Company against all Expenses and Liabilities incurred or paid by Indemnitee in
connection with such Proceeding (referred to herein as “Indemnifiable Expenses”
and “Indemnifiable Liabilities,” respectively, and collectively as “Indemnifiable
Amounts”).


 


(b)           Proceedings
By or In the Right of the Company. 
Subject to the exceptions contained in Section 4(b) below, if
Indemnitee was or is a party or is threatened to be made a party to any
Proceeding by or in the right of the Company by reason of Indemnitee’s
Corporate Status, Indemnitee shall be indemnified by the Company against all
Indemnifiable Expenses.


 


(c)           Conclusive Presumption Regarding
Standard of Care.  In making any
determination required to be made under Delaware law with respect to
entitlement to indemnification hereunder, the person, persons or entity making
such determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee submitted a request therefor in accordance
with Section 5 of this Agreement, and the Company shall have the burden of
proof to overcome that presumption in connection with the making by any person,
persons or entity of any determination contrary to that presumption.


 


4.             Exceptions
to Indemnification.  Indemnitee
shall be entitled to indemnification under Sections 3(a) and 3(b) above
in all circumstances other than with respect to any specific claim, issue or
matter involved in the Proceeding out of which Indemnitee’s claim for
indemnification has arisen, as follows:


 


(a)           Proceedings
Other Than By or In the Right of the Company.  If indemnification is requested under Section 3(a) and
it has been finally adjudicated by a court of competent jurisdiction that, in
connection with such specific claim,


 


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issue or matter, Indemnitee failed to act (i) in good
faith and (ii) in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, or, with respect to any criminal
Proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s
conduct was unlawful, Indemnitee shall not be entitled to payment of
Indemnifiable Amounts hereunder.


 


(b)           Proceedings
By or In the Right of the Company. 
If indemnification is requested under Section 3(b) and


 


(i) it has been
finally adjudicated by a court of competent jurisdiction that, in connection
with such specific claim, issue or matter, Indemnitee failed to act (A) in
good faith and (B) in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company, Indemnitee shall not be
entitled to payment of Indemnifiable Expenses hereunder; or


 


(ii) it has been
finally adjudicated by a court of competent jurisdiction that Indemnitee is
liable to the Company with respect to such specific claim, Indemnitee shall not
be entitled to payment of Indemnifiable Expenses hereunder with respect to such
claim, issue or matter unless the Court of Chancery or another 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,
Indemnitee is fairly and reasonably entitled to indemnification for such
Indemnifiable Expenses which such court shall deem proper; or


 


(iii) it has been
finally adjudicated by a court of competent jurisdiction that Indemnitee is
liable to the Company for an accounting of profits made from the purchase or
sale by the Indemnitee of securities of the Company pursuant to the provisions
of Section 16(b) of the Securities Exchange Act of 1934, the rules and
regulations promulgated thereunder and amendments thereto or similar provisions
of any federal, state or local statutory law, Indemnitee shall not be entitled
to payment of Indemnifiable Expenses hereunder.


 


(c)           Insurance
Proceeds.  To the extent payment is
actually made to the Indemnitee under a valid and collectible insurance policy
in respect of Indemnifiable Amounts in connection with such specific claim,
issue or matter, Indemnitee shall not be entitled to payment of Indemnifiable
Amounts hereunder except in respect of any excess beyond the amount of payment
under such insurance.


 


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5.             Procedure
for Payment of Indemnifiable Amounts. 
Indemnitee shall submit to the Company a written request specifying the
Indemnifiable Amounts for which Indemnitee seeks payment under Section 3
of this Agreement and the basis for the claim. 
The Company shall pay such Indemnifiable Amounts to Indemnitee promptly
upon receipt of its request.  At the
request of the Company, Indemnitee shall furnish such documentation and
information as are reasonably available to Indemnitee and necessary to
establish that Indemnitee is entitled to indemnification hereunder.


 


6.             Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.  Notwithstanding
any other provision of this Agreement, and without limiting any such provision,
to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a
party to and is successful, on the merits or otherwise, in any Proceeding,
Indemnitee shall be indemnified against all Expenses reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection therewith.  If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to one or
more but less than all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee against all Expenses reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with each successfully
resolved claim, issue or matter.  For
purposes of this Agreement, the termination of any claim, issue or matter in
such a Proceeding by dismissal, with or without prejudice, by reason of
settlement, judgment, order or otherwise, shall be deemed to be a successful
result as to such claim, issue or matter.


 


7.             Effect of
Certain Resolutions.  Neither the
settlement or termination of any Proceeding nor the failure of the Company to
award indemnification or to determine that indemnification is payable shall
create a presumption that Indemnitee is not entitled to indemnification
hereunder.  In addition, the termination
of any proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent shall not create a presumption that
Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company or, with respect to any criminal Proceeding, had reasonable cause to
believe that Indemnitee’s action was unlawful.


 


8.             Agreement to
Advance Expenses; Undertaking.  The
Company shall advance all Expenses incurred by or on behalf of Indemnitee in
connection with any Proceeding, including a Proceeding by or in the right of
the Company, in which Indemnitee is involved by reason of such Indemnitee’s
Corporate Status within thirty (30) calendar days after the receipt by the Company
of a written statement from Indemnitee requesting such advance or advances from
time to time, whether prior to or after final disposition of such
Proceeding.  Advances shall be unsecured
and interest free.  Advances shall be
made without regard to Indemnitee’s ability to repay the expenses and without
regard to Indemnitee’s ultimate entitlement to indemnification under the other
provisions of this Agreement.  To the
extent required by Delaware law, Indemnitee hereby undertakes to repay any and
all of the amount of Indemnifiable Expenses paid to Indemnitee if it is finally
determined by a court of competent jurisdiction that Indemnitee is not entitled
under this Agreement to indemnification with respect to such Expenses.  This undertaking is an unlimited general
obligation of Indemnitee.


 


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9.             Procedure
for Advance Payment of Expenses. 
Indemnitee shall submit to the Company a written request specifying the
Indemnifiable Expenses for which Indemnitee seeks an advancement under Section 8
of this Agreement, together with documentation evidencing that Indemnitee has
incurred such Indemnifiable Expenses. 
Payment of Indemnifiable Expenses under Section 8 shall be made no
later than thirty (30) calendar days after the Company’s receipt of such
request.


 


10.          Indemnification for Expenses of a
Witness.  Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by reason of his
Corporate Status, a witness in any Proceeding to which Indemnitee is not a
party, he shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith.


 


11.          Remedies
of Indemnitee.


 


(a)           Right
to Petition Court.  In the event that
Indemnitee makes a request for payment of Indemnifiable Amounts under Sections
3 and 5 above or a request for an advancement of Indemnifiable Expenses
under Sections 8 and 9 above and the Company fails to make such payment or
advancement in a timely manner pursuant to the terms of this Agreement,
Indemnitee may petition the Court of Chancery to enforce the Company’s obligations
under this Agreement.


 


(b)           Burden
of Proof.  In any judicial proceeding
brought under Section 11(a) above, the Company shall have the burden
of proving that Indemnitee is not entitled to payment of Indemnifiable Amounts
hereunder.


 


(c)           Expenses.
 The Company agrees to reimburse
Indemnitee in full for any Expenses incurred by Indemnitee in connection with
investigating, preparing for, litigating, defending or settling any action
brought by Indemnitee under Section 11(a) above, or in connection
with any claim or counterclaim brought by the Company in connection therewith,
whether or not Indemnitee is successful in whole or in part in connection with
any such action.


 


(d)           Failure
to Act Not a Defense.  The failure of
the Company (including its Board of Directors or any committee thereof,
independent legal counsel, or stockholders) to make a determination concerning
the permissibility of the payment of Indemnifiable Amounts or the advancement
of Indemnifiable Expenses under this Agreement shall not be a defense in any
action brought under Section 11(a) above, and shall not create a
presumption that such payment or advancement is not permissible.


 


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12.          Defense
of the Underlying Proceeding.


 


(a)           Notice by Indemnitee.  Indemnitee agrees to notify the Company
promptly upon being served with any summons, citation, subpoena, complaint,
indictment, information, or other document relating to any Proceeding which may
result in the payment of Indemnifiable Amounts or the advancement of
Indemnifiable Expenses hereunder; provided, however, that the failure to give
any such notice shall not disqualify Indemnitee from the right, or otherwise
affect in any manner any right of Indemnitee, to receive payments of Indemnifiable
Amounts or advancements of Indemnifiable Expenses unless the Company’s ability
to defend in such Proceeding is materially and adversely prejudiced thereby.


 


(b)           Defense by Company.  Subject to the provisions of the last
sentence of this Section 12(b) and of Section 12(c) below,
the Company shall have the right to defend Indemnitee in any Proceeding which
may give rise to the payment of Indemnifiable Amounts hereunder; provided,
however that the Company shall notify Indemnitee of any such decision to defend
within ten (10) calendar days of receipt of notice of any such Proceeding
under Section 12(a) above.  The
Company shall not, without the prior written consent of Indemnitee, consent to
the entry of any judgment against Indemnitee or enter into any settlement or
compromise which (i) includes an admission of fault of Indemnitee or (ii) does
not include, as an unconditional term thereof, the full release of Indemnitee
from all liability in respect of such Proceeding, which release shall be in
form and substance reasonably satisfactory to Indemnitee.  This Section 12(b) shall not apply
to a Proceeding brought by Indemnitee under Section 11(a) above or
pursuant to Section 20 below.


 


(c)           Indemnitee’s Right to Counsel.  Notwithstanding the provisions of Section 12(b) above,
if in a Proceeding to which Indemnitee is a party by reason of Indemnitee’s
Corporate Status, (i) Indemnitee reasonably concludes that he or she may
have separate defenses or counterclaims to assert with respect to any issue
which may not be consistent with the position of other defendants in such
Proceeding, (ii) a conflict of interest or potential conflict of interest
exists between Indemnitee and the Company, or (iii) if the Company fails
to assume the defense of such proceeding in a timely manner, Indemnitee shall
be entitled to be represented by separate legal counsel of Indemnitee’s choice
at the expense of the Company.  In
addition, if the Company fails to comply with any of its obligations under this
Agreement or in the event that the Company or any other person takes any action
to declare this Agreement void or unenforceable, or institutes any action, suit
or proceeding to deny or to recover from Indemnitee the benefits intended to be
provided to Indemnitee hereunder, Indemnitee shall have the right to retain
counsel of Indemnitee’s choice, at the expense of the Company, to represent
Indemnitee in connection with any such matter.


 


13.          Representations
and Warranties of the Company.  The
Company hereby represents and warrants to Indemnitee as follows:


 


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(a)           Authority.  The Company has all necessary power and
authority to enter into, and be bound by the terms of, this Agreement, and the
execution, delivery and performance of the undertakings contemplated by this
Agreement have been duly authorized by the Company.


 


(b)           Enforceability.  This Agreement, when executed and delivered
by the Company in accordance with the provisions hereof, shall be a legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting the enforcement of creditors’ rights generally.


 


14.          Insurance.  The Company shall, from time to time, make
the good faith determination whether or not it is practicable for the Company
to obtain and maintain a policy or policies of insurance with a reputable
insurance company providing the Indemnitee with coverage for losses from
wrongful acts.  For so long as Indemnitee
shall remain a director or officer of the Company and with respect to any such
prior service, in all policies of director and officer liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits as are afforded to the most favorably
insured of the Company’s officers and directors.  Notwithstanding the foregoing, the Company
shall have no obligation to obtain or maintain such insurance if the Company
determines in good faith that such insurance is not reasonably available, if
the premium costs for such insurance are disproportionate to the amount of
coverage provided, or if the coverage provided by such insurance is limited by
exclusions so as to provide an insufficient benefit. The Company shall promptly
notify Indemnitee of any good faith determination not to provide such coverage.


 


15.          Contract
Rights Not Exclusive.  The rights to
payment of Indemnifiable Amounts and advancement of Indemnifiable Expenses
provided by this Agreement shall be in addition to, but not exclusive of, any
other rights which Indemnitee may have at any time under applicable law, the
Company’s Certificate of Incorporation or By-laws, or any other agreement, vote
of stockholders or directors (or a committee of directors), or otherwise, both
as to action in Indemnitee’s official capacity and as to action in any other
capacity as a result of Indemnitee’s serving as a  director or officer of the Company.


 


16.          Successors.  This Agreement shall be (a) binding upon
all successors and assigns of the Company (including any transferee of all or a
substantial portion of the business, stock and/or assets of the Company and any
direct or indirect successor by merger or consolidation or otherwise by
operation of law) and (b) binding on and shall inure to the benefit of the
heirs, personal representatives, executors and administrators of
Indemnitee.  This Agreement shall
continue for the benefit of Indemnitee and such heirs, personal
representatives, executors and administrators after Indemnitee has ceased to
have Corporate Status.


 


17.          Subrogation.  In the event of any payment of Indemnifiable
Amounts under this Agreement, the Company shall be subrogated to the extent of
such payment to all of the rights of contribution or recovery of Indemnitee
against other persons, and Indemnitee shall take, at the 


 


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request of the Company, all reasonable action necessary to secure such
rights, including the execution of such documents as are necessary to enable
the Company to bring suit to enforce such rights.


 


18.          Change
in Law.  To the extent that a change
in Delaware law (whether by statute or judicial decision) shall permit broader
indemnification or advancement of expenses 
than is provided under the terms of the By-laws and this Agreement,
Indemnitee shall be entitled to such broader indemnification and advancements,
and this Agreement shall be deemed to be amended to such extent.


 


19.          Severability.  Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement, or any clause
thereof, shall be determined by a court of competent jurisdiction to be
illegal, invalid or unenforceable, in whole or in part, such provision or
clause shall be limited or modified in its application to the minimum extent
necessary to make such provision or clause valid, legal and enforceable, and
the remaining provisions and clauses of this Agreement shall remain fully
enforceable and binding on the parties.


 


20.          Indemnitee
as Plaintiff.  Except as provided in Section 10(c) of
this Agreement and in the next sentence, Indemnitee shall not be entitled to
payment of Indemnifiable Amounts or advancement of Indemnifiable Expenses with
respect to any Proceeding brought by Indemnitee against the Company, any Entity
which it controls, any director or officer thereof, or any third party, unless
the Board of Directors of the Company has consented to the initiation of such
Proceeding.  This Section shall not
apply to counterclaims or affirmative defenses asserted by Indemnitee in an
action brought against Indemnitee.


 


21.          Modifications
and Waiver.  Except as provided in Section 18
above with respect to changes in Delaware law which broaden the right of
Indemnitee to be indemnified by the Company, no supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by each
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 provisions of this Agreement (whether or not similar), nor
shall such waiver constitute a continuing waiver.


 


22.          General
Notices.  All notices, requests,
demands and other communications hereunder shall be in writing and shall be
deemed to have been duly given (a) when delivered by hand, (b) when
transmitted by facsimile and receipt is acknowledged, or (c) if mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:


 


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(i)            If to Indemnitee, to:


 


 


 


 


(ii)           If to the Company, to:


 


 


 


 


or to such other address
as may have been furnished in the same manner by any party to the others.


 


23.          Governing
Law; Consent to Jurisdiction; Service of Process.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard
to its rules of conflict of laws. 
Each of the Company and the Indemnitee hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the Court
of Chancery of the State of Delaware and the courts of the United States of
America located in the State of Delaware (the “Delaware Courts”) for any
litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any litigation relating thereto
except in such courts), waives any objection to the laying of venue of any such
litigation in the Delaware Courts and agrees not to plead or claim in any
Delaware Court that such litigation brought therein has been brought in an
inconvenient forum.  Each of the parties
hereto agrees, (a) to the extent such party is not otherwise subject to
service of process in the State of Delaware, to appoint and maintain an agent
in the State of Delaware as such party’s agent for acceptance of legal process,
and (b) that service of process may also be made on such party by prepaid
certified mail with a proof of mailing receipt validated by the United States
Postal Service constituting evidence of valid service.  Service made pursuant to (a) or (b) above
shall have the same legal force and effect as if served upon such party
personally within the State of Delaware. 
For purposes of implementing the parties’ agreement to appoint and
maintain an agent for service of process in the State of Delaware, each such
party does hereby appoint The Corporation Trust Company, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801, as such agent and each such
party hereby agrees to complete all actions necessary for such appointment.


 


[signature page follows]


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.


 


 


	
   

  	
   

  	
  Ezenia! Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  INDEMNITEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name: