Exhibit 10.1


 


INDEMNITY AGREEMENT


 


THIS AGREEMENT is made and entered into as of                     ,
20     by and between CUBIC CORPORATION,
a Delaware corporation (the “Corporation”), and [NAME][“Indemnitee”].


 


RECITALS


 


WHEREAS, Indemnitee has performed, and will continue to
perform, valuable services to the Corporation;


 


WHEREAS, the Corporation’s bylaws ( “Bylaws”) and Certificate
of Incorporation (“Certificate”) provide for the indemnification of the
directors, officers, employees and other agents of the Corporation, including
persons serving at the request of the Corporation in such capacities with other
corporations or enterprises, as authorized by the Delaware General Corporation
Law, as amended (the “Code”);


 


WHEREAS, the Bylaws, the Certificate and the Code permit contracts
between the Corporation and its directors, officers, employees and other agents
with respect to indemnification of such persons; and


 


WHEREAS, in order to induce Indemnitee to serve or continue
serving, and to further its own best interests, the Corporation is entering
into this Agreement.


 


NOW, THEREFORE, in consideration of Indemnitee’s continued service,
the parties agree as follows:


 


AGREEMENT


 


1. Services to the Corporation. Indemnitee will serve, at the will of
the Corporation, or under separate contract, if any, as [TITLE] faithfully and
to the best of his ability provided,
however, that Indemnitee may at any time and for any reason resign
from such position and provided, further, that the Corporation shall not,
solely by this Agreement, have any obligation to continue Indemnitee in any
position.


 


2. Indemnity. The Corporation shall hold harmless and indemnify Indemnitee
to the fullest extent authorized or permitted by the provisions of the Bylaws,
the Certificate, and the Code, as the same may be amended from time to time
(but, only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than the Bylaws, the Certificate or the Code
permitted prior to adoption of such amendment).


 


3. Additional Indemnity. In addition to and not in limitation of the
indemnification otherwise provided for herein, and subject only to the
exclusions set forth in Section 4 hereof, the Corporation hereby further
agrees to hold harmless and indemnify Indemnitee:


 


(a)        against any and all expenses (including
attorneys’ fees), witness fees, damages, judgments, fines and amounts paid in
settlement and any other amounts that Indemnitee becomes legally obligated to
pay because of any claim or claims made against or by him in connection with
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, arbitral, administrative or investigative (including an action by or
in the right of the Corporation) to which Indemnitee is, was, or at any time
becomes a party, or is threatened to be made a party, by reason of the fact
that Indemnitee is or was serving in any position at the request of the
Corporation,  and


 


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(b)       as long as Indemnitee acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.


 


4. Limitations on Additional Indemnity. No indemnity pursuant to Sections 2 or 3
hereof shall be paid by the Corporation:


 


(a)       on account of Indemnitee’s conduct that
is established by a final judgment as knowingly fraudulent or deliberately
dishonest or that constituted willful misconduct;


 


(b)        on account of Indemnitee’s conduct that
is established by a final judgment as constituting a breach of his duty of
loyalty to the Corporation or resulting in any personal profit or advantage to
which he was not legally entitled;


 


(c)       for which payment is fully made to Indemnitee
under an insurance policy or under another indemnification provision;


 


(d)        if indemnification is not lawful (and,
in this respect, both the Corporation and Indemnitee 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);


 


(e)        in connection with any proceeding (or
part thereof) initiated by Indemnitee, or any proceeding by Indemnitee against
the Corporation or its directors, officers, employees or other agents, unless (i) such
indemnification is expressly required by law to be made, (ii) the
proceeding was authorized by the Board of Directors of the Corporation, (iii) such
indemnification is provided by the Corporation, in its sole discretion,
pursuant to the powers vested in the Corporation under the Code, or (iv) the
proceeding is initiated pursuant to Section 9 hereof, or


 


(f)        for
any claim, issue or matter as to which Indemnitee is adjudged to be liable to
the Corporation unless and only to the extent that the Delaware Court of
Chancery or a judge of the court in which the action or suit 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 indemnity for such expenses as the court deems proper.


 


5. Continuation of Indemnity. All agreements and obligations of the Corporation
contained herein shall continue during the period Indemnitee is or was serving
at the request of the Corporation and shall continue thereafter so long as Indemnitee
is potentially subject to any claim or threatened, pending or completed action,
suit or proceeding, whether civil, criminal, arbitral, administrative or
investigative, by reason of the fact that he was serving in any position at the
request of the Corporation.


 


6. Partial Indemnification. Indemnitee shall be entitled to indemnification by
the Corporation for such portion of the expenses (including attorneys’ fees),
witness fees, damages, judgments, fines and amounts paid in settlement and any
other amounts that he becomes legally obligated to pay in connection with any
action, suit or proceeding referred to in Sections 2 and 3 hereof even if not
entitled to indemnification for the total amount thereof, and the Corporation
shall indemnify him for the portion thereof to which he is entitled.


 


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7. Notification and Defense of Claim. Not later than 20 days after receipt by Indemnitee
of a first notice of a claim or the commencement of any action, suit or
proceeding, he shall, if an indemnification claim is to be made under this
Agreement, notify the Corporation of the matter and shall deliver to the
Corporation a written application to indemnify Indemnitee in accordance with
this Agreement; provided, however, that the omission to promptly notify the
Corporation will not relieve it from any liability except to the extent that it
was prejudiced thereby. With respect to any indemnification:


 


(a)        the Corporation shall defend and may
control the defense at its own expense;


 


(b)       except as otherwise provided below, the
Corporation shall assume the defense thereof with counsel reasonably
satisfactory to Indemnitee. Indemnitee shall have the right to employ separate
counsel in such matter at his own expense unless (i) the employment of
counsel by Indemnitee has been authorized by the Corporation, (ii) Indemnitee
shall have reasonably concluded, and so notified the Corporation, that there is
an actual conflict of interest between the Corporation and Indemnitee in the
conduct of the defense of such action or (iii) the Corporation shall not
in fact have seasonably employed counsel to assume the defense of such action,
in each of which cases the fees and expenses of Indemnitee’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 Indemnitee shall have made the
conclusion provided for in clause (ii) above; and


 


(c)        the Corporation shall not be liable to
indemnify Indemnitee for any amounts paid in settlement of any action or claim
effected without its prior written consent, which shall not be unreasonably
withheld. 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 Indemnitee without his written consent, which may be
given or withheld in his reasonable discretion.


 


8. Expenses. The Corporation shall advance, prior to the final
disposition of any proceeding, promptly following request therefor, all
expenses incurred by Indemnitee in connection with such proceeding upon receipt
of an undertaking by him to repay said amounts if it shall be determined
ultimately that he is not entitled to be indemnified under the provisions of
this Agreement, the Bylaws, the Code, or otherwise.  This Section 8 shall not apply to any
claim made by Indemnitee for which indemnity is excluded pursuant to Section 4
hereof.


 


9. Enforcement. Any right to indemnification or advances granted by
this Agreement to Indemnitee shall be enforceable by him in any court of
competent jurisdiction if (i) the claim for indemnification or advances is
denied, in whole or in part, or (ii) no disposition of such claim is made
within ninety (90) days of request therefor. Indemnitee in such enforcement
action, if successful in whole or in part, shall be entitled to be paid also
the expense of prosecuting his claim.


 


10. Reserved.


 


11. Non-Exclusivity of Rights. The rights conferred on Indemnitee by this Agreement
shall not be exclusive of any other right which he may have or hereafter
acquire under the Code or any statute, provision of the Corporation’s
Certificate of Incorporation or Bylaws, agreement, vote of stockholders or
directors, or otherwise.


 


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12. Survival of Rights.


 


(a)        The rights conferred on Indemnitee by
this Agreement shall continue after he has ceased to be serving the Corporation
for acts taken or omitted to be taken during his service.


 


(b)       Any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Corporation or any of its
material subsidiaries for which Indemnitee shall have served, shall be deemed
to assume and agree to perform this Agreement in the same manner and to the
same extent that the Corporation would be required to perform if no such
succession had taken place.


 


13. 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 for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof.


 


14. Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.


 


15. Amendment and Termination. No amendment, modification, termination or cancellation
of this Agreement shall be effective unless in writing and signed by both
parties hereto.


 


16. Identical Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute but one and the same Agreement. Only
one such counterpart need be produced to evidence the existence of this
Agreement.


 


17. Headings. The headings of the sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction hereof.


 


18. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (i) upon delivery if delivered by hand to the party to whom
such communication was directed, or (ii) upon the third business day after
the date on which such communication was mailed if mailed by certified or
registered mail with postage prepaid, or if sent by electronic mail on the date
and time sent:


 


(a)        If to Indemnitee, at the address
indicated on the signature page hereof.


 


(b)        If to the Corporation, to:


 


CUBIC CORPORATION


 


Attn: Corporate
Secretary


 


9333 Balboa Avenue


 


San Diego, CA 92123


 


or to such other address
as may have been furnished to Indemnitee by the Corporation.


 


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


 


	
   

  	
   

  
	
   

  	
  CUBIC
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
  e-mail:

  	
   

  
				



 


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