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EXHIBIT 10.25
INDEMNITY AGREEMENT
This Agreement dated , 1999 is between:
PIVOTAL CORPORATION (British Columbia Incorporation No. 398393)
(the "Company")
AND
_________________,
(the "Indemnitee").
BACKGROUND
A. The Company was incorporated under the provisions of the British Columbia
Company Act ("Act").
B. The Indemnitee is or may become a director or officer of the Company or of a
body corporate of which the Company is, was or may become a shareholder or
creditor (an "Interested Company") or, at the request of the Company or an
Interested Company, a director or officer of (or acting in a similar capacity
for) a corporation, partnership, association, syndicate, joint venture, trust or
other organization, whether incorporated or unincorporated (an "Other Entity").
C. The Company has requested the Indemnitee to serve or to continue to serve as
a director or officer of the Company, an Interested Company or Other Entity and
the Indemnitee has agreed, subject to the granting of the indemnities in this
Agreement, to serve or to continue to serve as a director or officer of the
Company, an Interested Company or Other Entity.
AGREEMENTS
For good and valuable consideration, the receipt and sufficiency of
which each party acknowledges, the parties agree as follows:
1. GENERAL INDEMNITY. Except in the case of the gross negligence or wilful
misconduct of the Indemnitee in connection with the duties of the Indemnitee as
a director or officer of the Company, an Interested Company or Other Entity, the
Company will indemnify and hold harmless the Indemnitee and the respective
heirs, executors, administrators and other legal representatives of the
Indemnitee (each of which is included in any reference hereinafter made to the
"Indemnitee") against and from all liabilities, losses, damages, costs, fees,
charges, disbursements, fines, penalties and expenses whatsoever regardless of
when they arose and howsoever arising, including, without limiting the
generality of the foregoing, all fees, charges and disbursements for the
services of any
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experts, all legal fees, charges and disbursements on and as between a solicitor
and client basis and any amount paid to settle any actions or satisfy any
judgments, (any and all of the foregoing being hereinafter referred to as
"Liabilities") which the Indemnitee may sustain, pay or incur as a result of or
in connection with any manner of action, suit, proceeding, claim, demand, order
or investigation (whether civil, criminal, administrative or otherwise,
including, without limiting the generality of the foregoing, any and all appeals
and whether made by any person, firm, corporation, government, or by any
governmental department, body, commission, board, bureau, agency or
instrumentality (any and all of the foregoing being hereinafter referred to as
an "Action") to which the Indemnitee is made or threatened to be made a party
for or in respect to any act done or step taken or alleged to have been done or
step taken, or not done or taken or alleged not to have been done or taken, in
the course of or arising from carrying out or conducting the Indemnitee's duties
as, or the fact that the Indemnitee is, a director or officer of the Company, an
Interested Company or Other Entity.
2. SPECIFIC INDEMNITY FOR STATUTORY OBLIGATIONS. In particular, and without in
any way limiting the generality of Section 1 of this Agreement, the Company will
indemnify and hold the Indemnitee harmless against and from all Liabilities at
any time imposed upon or at any time made against the Indemnitee by virtue of
the Act, the Securities Act (British Columbia), the Securities Act of 1933
(United States), the Securities Exchange Act of 1934 (United States), the
Bankruptcy and Insolvency Act (Canada), the Income Tax Act (Canada) and under
any other federal, state, provincial, regional, county or municipal legislation
or any re-enactment or amendment of such legislation and which in any way
involve the business or affairs of the Company, an Interested Company or Other
Entity.
3. TAXATION INDEMNITY. Without limiting the generality of Sections 1 and 2, the
Company agrees that with respect to taxes and other similar charges howsoever
designated, levied by governments and by agencies and divisions of governments,
whether federal, state, provincial, regional, county or municipal:
(a) the Company will abide, and use its reasonable efforts to cause
an Interested Company or Other Entity to abide, by all laws,
by-laws, legislative requirements and regulatory requirements of
any government or any agency or division of any government,
whether federal, state, provincial, regional, county or
municipal, relating to the ownership of the Company and to any
business conducted by the Company, an Interested Company or Other
Entity; and
(b) to the extent that the Indemnitee becomes responsible for the
preparation or filing of any report or return to any government
or any agency or division of any government, whether federal,
state, provincial, state, regional, county or municipal, the
Company will supply and will use its reasonable efforts to cause
an Interested Company or Other Entity to supply, all necessary
information for such preparation and filing and will be
responsible for paying all charges, costs and expenses, including
those of accountants, appraisers, lawyers and other consultants,
relating to such preparation and filing.
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4. PAYMENT OF EXPENSES. Any expenses incurred or to be incurred by the
Indemnitee in connection with any Action covered under this Agreement will, at
the request of the Indemnitee, be paid by the Company in advance to enable the
Indemnitee to properly investigate, defend or appeal such Action.
5. NOTICES OF PROCEEDINGS. The Indemnitee will give notice, in writing, to the
Company upon the Indemnitee being served with any statement of claim, writ,
notice of motion, indictment, subpoena, investigation order or other document
commencing, threatening or continuing any Action involving the Company, an
Interested Company or Other Entity or the Indemnitee which may result in a claim
for indemnification under this Agreement, and the Company agrees to notify the
Indemnitee, in writing, forthwith upon it or any Interested Company or Other
Entity being served with any statement of claim, writ, notice of motion,
indictment, subpoena, investigation order or other document commencing,
threatening or continuing any Action involving the Indemnitee. Failure by either
party to so notify the other of any Action will not relieve the Company from
liability hereunder except to the extent that the failure materially prejudices
the Indemnitee or the Company, as the case may be.
6. SUBROGATION. Promptly after receiving notice of any Action or threatened
Action from the Indemnitee, the Company may, and upon the written request of the
Indemnitee will, promptly assume the defence thereof and retain counsel on
behalf of the Indemnitee who is reasonably satisfactory to the Indemnitee, to
represent the Indemnitee in respect of the Action. If the Company assumes
conduct of the defence on behalf of the Indemnitee, the Indemnitee hereby
consents to the conduct thereof and of any action taken by the Company, in good
faith, in connection therewith and the Indemnitee will fully cooperate in such
defence including, without limitation, the provision of documents, attending
examinations for discovery, making affidavits, meeting with counsel, testifying
and divulging to the Company all information reasonably required to defend or
prosecute the Action.
7. SEPARATE COUNSEL. In connection with any Action the Indemnitee will have the
right to employ separate counsel of the Indemnitee's choosing and to participate
in the defence thereof but the fees and disbursements of such counsel will be at
the Indemnitee's expense unless:
(a) counsel chosen by the Company to represent the Indemnitee
reasonably determines that there are legal defences available to
the Indemnitee that are different from or in addition to those
available to the Company, the Interested Company or Other Entity
or that a conflict of interest exists which makes representation
by counsel chosen by the Company not advisable;
(b) the Company has not assumed the defence of the Action and
employed counsel therefor reasonably satisfactory to the
Indemnitee within a reasonable period of time after receiving
notice thereof; or
(c) employment of such other counsel has been authorized by the
Company;
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in which event the fees and disbursements of such separate counsel will be paid
by the Company.
8. SETTLEMENT OF CLAIM. No admission of liability and no settlement of any
Action or threatened Action in a manner adverse to the Indemnitee will be made
without the consent of the Indemnitee, such consent not to be unreasonably
withheld. No admission of liability will be made by the Indemnitee without the
consent of the Company and the Company will not be liable for any settlement of
any Action or threatened Action made without its consent, such consent not to be
unreasonably withheld.
9. DETERMINATION OF RIGHT TO INDEMNIFICATION. If the payment of an indemnity
hereunder requires the approval of a court, under the provisions of the Act or
otherwise, either the Company or, failing the Company, the Indemnitee, may apply
to a court of competent jurisdiction for an order approving such indemnity by
the Company of the Indemnitee pursuant to this Agreement.
10. NOTICES. Any notice to be given by one party to the other will be sufficient
if delivered by hand, deposited in any post office in Canada or the United
States, registered, postage prepaid, or sent by means of electronic transmission
(in which case any message so transmitted will be immediately confirmed in
writing and mailed as provided above), addressed, as the case may be:
(a) to the Company:
▇▇▇ - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) to the Indemnitee:
Facsimile:___________________
or at such other address of which notice is given by the parties pursuant to the
provisions of this section. Such notice will be deemed to have been received
when delivered, if delivered, and if mailed, on the fifth business day
(exclusive of Saturdays, Sundays and statutory holidays) after the date of
mailing. Any notice sent by means of electronic transmission will be deemed to
have been given and received on the day it is transmitted, provided that if such
day is not a business day then the notice will be deemed to have been given and
received on the next business day following. In the case of an interruption of
postal service, all notices or other communications will be delivered
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or sent by means of electronic transmission as provided above, except that it
will not be necessary to confirm in writing and mail any notice electronically
transmitted.
11. SURVIVAL OF COVENANTS. The indemnity herein provided for will survive the
termination of the Indemnitee's position as a director or officer of the
Company, an Interested Company or Other Entity and will continue in full force
and effect thereafter.
12. INSOLVENCY. The liability of the Company under this Agreement will not be
affected, discharged, impaired, mitigated or released by reason of the discharge
or release of the Indemnitee in any bankruptcy, insolvency, receivership or
other similar proceeding of creditors.
13. TIME FOR PAYMENT. All monies to be paid under this Agreement will be paid
within 30 days of becoming payable.
14. SEVERABILITY. If any provision of this Agreement is determined to be invalid
or unenforceable in whole or in part, such invalidity or unenforceability will
attach only to that provision or part, and the remaining part of the provision
and all other provisions of this Agreement will continue in full force and
effect. The parties agree to negotiate in good faith to agree to a valid and
enforceable provision which will be as close as possible to the intention of any
invalid or unenforceable provision. The invalidity or unenforceability of any
provision in any particular jurisdiction will not affect its validity in any
other jurisdiction where it is valid or enforceable.
15. FURTHER ACTS. Each party agrees to do all such things and take all such
actions as may be necessary or desirable to give full force and effect to the
matters contemplated by this Agreement.
16. ENUREMENT. This Agreement enures to the benefit and is binding upon the
parties and their respective heirs, executors, administrators, legal
representatives, successors and permitted assigns.
17. INDEPENDENT LEGAL ADVICE. The Indemnitee acknowledges that he or she has
been advised to obtain independent legal advice with respect to entering into
this Agreement, that he or she has obtained such independent legal advice or has
expressly decided not to seek such advice, and that he or she is entering into
this Agreement with full knowledge of the contents hereof, of his or her own
free will and with full capacity to do so.
18. TIME OF ESSENCE. Time will be of the essence in this Agreement.
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19. INTERPRETATION. This Agreement and the application or interpretation of it
is governed exclusively by its terms and by the laws of the Province of British
Columbia and the parties hereby irrevocably attorn to the exclusive jurisdiction
of the courts of the Province of British Columbia.
TO EVIDENCE THEIR AGREEMENT each of the parties has executed this
Agreement as of the date of this Agreement.
PIVOTAL CORPORATION
Per:________________________________
(Name of Indemnitee)