Exhibit 10.2


 


INDEMNIFICATION
AGREEMENT


 


This
agreement is entered into as of this 17th day of February, 2009, by and between
Verdolino & Lowey, P.C. (the “Firm”)
and Ibis Technology Corporation (the “Company”),
as follows:


 


Background


 


A.  On
February     , 2009, the Company and the Firm entered
into an agreement (the “Engagement Agreement”)
whereby the Company retained the Firm to assist the Company in preparing for
and executing the wind-down of the Company.


 


B.  The
Engagement Agreement provides that, upon Martin J. Reid’s resignation, (the “Board”), the Board shall elect Craig R.
Jalbert (“Jalbert”) as Chief
Administrative Officer and President of the Company, with full authority and
discretion to take such actions as are necessary or convenient to effectuate
the wind-down of the Company, subject to oversight and direction of the
Board.  The Firm has, pursuant to the Engagement Letter, agreed to
assume full responsibility for Jalbert’s performance of services to the Company
as an officer or in any other capacity.  The Company has agreed to
indemnify Jalbert to the full extent provided to Company officers in the
Restated Articles of Organization of the Company in connection with his
services as Chief Administrative Officer, President, Treasurer and Secretary of
the Company.


 


C.  In
consideration of the foregoing, the Company and the Firm have agreed to the
following:


 


Terms of Agreement


 


1.  Indemnification
of Jalbert as Director of the Company.  Jalbert, as a director of
the Company, shall have the full benefit of the provisions of Article 6B
of the Company’s Restated Articles of Organization.  A copy of the
provisions of this Article 6B is attached hereto as Exhibit A
and incorporated herein by reference.


 


2.  Indemnification
of the Firm.  The Company agrees to indemnify and hold harmless
the Firm and its respective employees and agents (collectively, the “Indemnitees”) from and against all losses,
claims, damages and liabilities resulting from an Indemnitee being (i) made
a party or threatened to be made a party to or (ii) involved in any
threatened or pending action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “Proceeding”)
and whether or not by or in the right of the Company or otherwise, which are
related to or result from the performance by the Firm of the services
contemplated by the Engagement Agreement.   The Company will
promptly reimburse any Indemnitee for all reasonable expenses (including
reasonable counsel fees and expenses) as they are incurred in connection with
the defense of any claim made or threatened against such Indemnitee; provided
that the Indemnitee undertakes to repay to the Company any and all such
advanced reimbursed expenses to the extent that it is finally judicially
determined that the loss, claim, damage or liability resulted from the Firm’s
or the Indemnitee’s willful misconduct, bad faith or gross negligence. The
Company will not be liable to any Indemnitee under the foregoing
indemnification and reimbursement provisions, (i) for any settlement by an
Indemnitee effected without the Company’s prior written consent, such 


 

















 


consent
not to be unreasonably withheld, or (ii) to the extent that any loss,
claim, damage or liability is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted primarily from the Firm’s or
the Indemnitee’s willful misconduct, bad faith or gross
negligence.  Indemnification shall continue as to any Indemnitee who
has ceased to perform services for the Firm and after the Firm has ceased to
perform services under the Engagement Agreement; such indemnification by the
Company shall continue through any period during which the Company has
directors’ and officers’ liability insurance, including without limitation any
tail period.


 


3.           Required
Notice of Claim of Indemnification.  Promptly after receipt by an
Indemnitee of notice of any intention or threat to commence an action, suit or
Proceeding or notice of the commencement of any action, suit or Proceeding,
such Indemnitee will, if a claim in respect thereof is to be made against the
Company pursuant hereto, promptly notify the Board of the Company in writing of
the same.  In case any such action is brought against any Indemnitee
and such Indemnitee complies with the notice provisions hereof, the Company may
elect to assume the defense of any such action, with counsel reasonably
satisfactory to such Indemnitee, and an Indemnitee may employ additional
counsel to participate in the defense of any such action provided, that the employment
of such additional counsel shall be at the Indemnitee’s own expense, unless:


 


(i)            the employment of such counsel has been
authorized in writing by the Board of Directors of the Company;


 


(ii)           the Indemnitee has reasonably concluded
(based upon advice of counsel to the Indemnitee) that there may be legal
defenses available to it or other Indemnitees that are different from or in
addition to those available to the Company, or that a conflict or potential
conflict exists (based upon advice of counsel to the Indemnitee) between the
Indemnitee and the Company that makes it impossible or inadvisable for counsel
to the Indemnitee to conduct the defense of both the Company and the Indemnitee
(in which case the Company will not have the right to direct the defense of
such action on behalf of the Indemnitee); or


 


(iii)          the Company has not in fact employed counsel
reasonably satisfactory to the Indemnitee to assume the defense of such action
within a reasonable time after receiving notice of the action, suit or Proceeding,


 


in
each of which cases the reasonable fees, disbursements and other charges of
such counsel will be at the expense of the Company; provided, further, that in
no event shall the Company be required to pay fees and expenses for more than
one firm of attorneys representing Indemnitees unless the defense of one
Indemnitee is unique or separate from that of another Indemnitee subject to the
same claim or action.


 


4.
           Breach of
Agreement.  In the event of a breach or alleged breach of this Indemnification
Agreement that results in litigation, the prevailing party in such litigation
shall be entitled to recover all expenses, including reasonable attorneys’
fees, incurred in connection 


 

















 


with
the litigation.


 


5.
           Termination
of Jalbert or the Firm by the Company shall not terminate the Company’s
obligation to insure and indemnify Jalbert and to indemnify the Firm for claims
incurred during the period prior to termination.


 


Executed
as of the date first written above.


 


 


	
   

  	
  VERDOLINO & LOWEY, P.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Craig
  R. Jalbert, CIRA, a duly-authorized

  representative of the Firm

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  IBIS TECHNOLOGY CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Martin J. Reid, President and CEO