COMPELLENT TECHNOLOGIES, INC. INDEMNITY AGREEMENT
Exhibit 10.2
COMPELLENT TECHNOLOGIES, INC.
INDEMNITY AGREEMENT
INDEMNITY AGREEMENT
THIS AGREEMENT is made and entered into this ___day of 2007 by and between
COMPELLENT TECHNOLOGIES, INC., a Delaware corporation (the “Corporation”), and
(“Agent”).
RECITALS
Whereas, Agent performs a valuable service to the Corporation in the capacity as a
director or officer of the Corporation;
Whereas, the stockholders of the Corporation have adopted bylaws (the “Bylaws”)
providing 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 and the Code, by their non-exclusive nature, permit contracts
between the Corporation and its agents, officers, employees and other agents with respect to
indemnification of such persons; and
Whereas, in order to induce Agent to continue to serve as a director or officer of
the Corporation, the Corporation has determined and agreed to enter into this Agreement with Agent;
Now, Therefore, in consideration of Agent’s continued service as a director or
officer of the Corporation that began on , the parties hereto agree as follows:
AGREEMENT
1. DEFINITIONS.
(a) Expenses. For purposes of this Agreement, the term “Expenses” shall be broadly
construed and shall include, without limitation, all direct and indirect costs of any type or
nature whatsoever (including, without limitation, all attorneys’, witness, or other professional
fees and related disbursements, and other out-of-pocket costs of whatever nature), actually and
reasonably incurred by Agent in connection with the investigation, defense or appeal of a
Proceeding or establishing or enforcing a right to indemnification under this Agreement, the Code
or otherwise and all judgments, fines or penalties and amounts paid in settlement by or on behalf
of Agent, but shall not include any judgments, fines or penalties actually levied against Agent for
such individual’s violations of law to the extent payment of such amounts is not permitted by
Delaware or other applicable laws.
(b) Change in Control. For purposes of this Agreement, a “Change in Control” shall be
deemed to have occurred if (i) following the date of registration of the Company’s securities under
the Securities Act of 1933, as amended, any “person” (as such term
1
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the “Act”)), other
than a trustee or other fiduciary holding securities under an employee benefit plan of the
Corporation or a corporation owned directly or indirectly by the stockholders of the Corporation in
substantially the same proportions as their ownership of stock of the Corporation, becomes the
“beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities
of the Corporation representing more than twenty percent (20%) of the total voting power
represented by the Corporation’s then outstanding Voting Securities; or (ii) there is consummated a
merger, consolidation or similar transaction involving (directly or indirectly) the Corporation if,
immediately after the consummation of such merger, consolidation or similar transaction, the
stockholders of the Corporation immediately prior thereto do not own, directly or indirectly,
either (A) outstanding Voting Securities representing more than fifty percent (50%) of the combined
outstanding voting power of the surviving entity in such merger, consolidation or similar
transaction or (B) more than fifty percent (50%) of the combined outstanding voting power of the
parent of the surviving entity in such merger, consolidation or similar transaction.
(c) Independent Legal Counsel. For purposes of this Agreement, “Independent Legal
Counsel” shall mean an attorney or firm of attorneys, selected in accordance with the provisions of
Section 6 hereof, who shall not have otherwise performed services for the Corporation (or for any
entity that now or in the future is controlled by, controlling or under common control with the
Corporation) or Agent within the last three years (other than with respect to matters concerning
the rights of Agent under this Agreement, or of other indemnitees under similar indemnity
agreements).
(d) Proceeding. For purposes of this Agreement, the term “Proceeding” shall mean and
shall include, without limitation, any threatened, pending, or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing, whether
brought in the right of or by the Corporation or otherwise and whether of a civil, criminal,
administrative or investigative nature, and whether formal or informal in any case, in which Agent
was, is or will be involved as a party or otherwise by reason of the fact that: (i) Agent is or
was a director, officer, employee or agent of the Corporation; (ii) Agent took an action while
acting as director, officer, employee or agent of the Corporation; or (iii) Agent 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 in any such case
described above, whether or not serving in any such capacity at the time any Expense is incurred
for which indemnification, reimbursement, or advancement of Expenses may be provided under this
Agreement.
(e) Voting Securities. For purposes of this Agreement, “Voting Securities” shall mean
any securities of the Corporation that vote generally in the election of directors.
2. SERVICES TO THE CORPORATION. Agent will serve, at the will of the Corporation or under
separate contract, if any such contract exists, as a director or officer of the Corporation or as a
director, officer or other fiduciary of an affiliate of the Corporation (including any employee
benefit plan of the Corporation) faithfully and to the best of Agent’s ability so long as Agent is
duly elected and qualified in accordance with the provisions of the Bylaws or other applicable
charter documents of the Corporation or such affiliate; provided, however, that Agent may at any
time and for any reason resign from such position (subject to
2
any contractual obligation that Agent may have assumed apart from this Agreement) and that the
Corporation or any affiliate shall have no obligation under this Agreement to continue Agent in any
such position.
3. INDEMNITY OF AGENT. The Corporation hereby agrees to hold harmless and indemnify Agent at
all times for all actions or omissions occurring during the term of such Agent’s service as a
director or officer of the Corporation or as a director, officer or other fiduciary of an affiliate
of the Corporation to the fullest extent authorized or permitted by the provisions of the Bylaws
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 or the
Code permitted prior to adoption of such amendment), including with respect to both acts and
omissions. These obligations and the other obligations of the Corporation in this Agreement apply
regardless of whether the conduct or omission giving rise to the obligations occurred before or
occur after the date this Agreement is executed.
4. CONTINUATION OF INDEMNITY. All agreements and obligations of the Corporation contained
herein shall continue during the period Agent is a director, officer, employee or other agent of
the Corporation (or is or was serving at the request of the Corporation as a director, officer,
employee or other agent of another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise) and shall continue thereafter so long as Agent shall be subject to any
possible Proceeding by reason of the fact that Agent was serving as a director or officer of the
Corporation.
5. PARTIAL INDEMNIFICATION. Agent shall be entitled under this Agreement to indemnification
by the Corporation for a portion of the Expenses that Agent becomes legally obligated to pay in
connection with any Proceeding even if not entitled hereunder to indemnification for the total
amount thereof, and the Corporation shall indemnify Agent for the portion thereof to which Agent is
entitled.
6. CHANGE IN CONTROL. The Corporation agrees that if there is a Change in Control of the
Corporation then, all rights hereunder shall continue without change or reduction. To the extent
that following a Change in Control the Corporation concludes that Agent is not entitled to
indemnification for a claim hereunder or under other Indemnification Provisions (as defined below),
Agent shall have the right, at Agent’s option, to submit matters relating to the determination of
the right of Agent to indemnification for such claim (including, but not limited to, any right to
advancement of Expenses) under this Agreement, any other agreement with the Corporation providing
for indemnification, the Certificate, Bylaws and applicable law (collectively, the “Indemnification
Provisions”) as now or hereafter in effect, to Independent Legal Counsel (as defined in Section 1
hereof) who shall be selected by Agent and approved by the Corporation (which approval shall not be
unreasonably withheld). Such Independent Legal Counsel shall render its written opinion to the
Corporation and Agent as to whether and to what extent Agent would be permitted to be indemnified
under the Indemnification Provisions prior to and after the consummation of such Change in Control
and such opinion shall be binding upon Agent and the Corporation. The Corporation agrees to pay
the reasonable fees of the Independent Legal Counsel referred to above and to fully indemnify such
counsel against any and all Expenses arising out of or relating to this Agreement or its engagement
pursuant hereto.
3
7. NOTIFICATION AND DEFENSE OF CLAIM. Not later than thirty (30) days after receipt by Agent
of notice of the commencement of any Proceeding, Agent 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 Agent otherwise than under this Agreement. With respect to any such Proceeding as to
which Agent 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, the Corporation may, at its option and jointly with
any other indemnifying party similarly notified and electing to assume such defense, assume the
defense thereof, with counsel reasonably satisfactory to Agent. After notice from the Corporation
to Agent of its election to assume the defense thereof, the Corporation will not be liable to Agent
under this Agreement for any Expenses subsequently incurred by Agent in connection with the defense
thereof except for reasonable costs of investigation or otherwise as provided below. Agent shall
have the right to employ separate counsel in such Proceeding but the Expenses of such counsel
incurred after notice from the Corporation of its assumption of the defense thereof shall be at the
expense of Agent; provided, however, that the Expenses of Agent’s separate counsel shall be borne
by the Corporation if (i) the employment of counsel by Agent has been authorized by the
Corporation, (ii) Agent reasonably shall have concluded that there may be a conflict of interest
between the Corporation and Agent in the conduct of the defense of such action or (iii) the
Corporation in fact shall not have employed counsel to assume the defense of such action. The
Corporation shall not be entitled to assume the defense of any Proceeding brought by or on behalf
of the Corporation or as to which Agent shall have made the conclusion provided for in clause (ii)
above; and
(c) the Corporation shall not be liable to indemnify Agent under this Agreement for any
amounts paid in settlement of any action or claim effected without its 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 Agent without Agent’s written consent, which may be given or withheld in Agent’s sole
discretion.
8. EXPENSES. Promptly following request therefor, the Corporation shall advance, prior to the
final disposition of any Proceeding, all Expenses incurred by Agent in connection with such
Proceeding. Through Agent’s execution of this Agreement, Agent hereby agrees to repay any such
amounts advanced for any matter under this Agreement if it shall ultimately be determined by a
final judicial decision from which there is no further right of appeal that Agent is not entitled
to be indemnified. Any advancement by the Corporation hereunder shall be done in express reliance
on the preceding undertaking and the Corporation agrees that no further agreement or
acknowledgement shall be required.
9. ENFORCEMENT. Any right to indemnification or advances granted by this Agreement to Agent
shall be enforceable by or on behalf of Agent 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. Agent, in such
4
enforcement action, if successful in whole or in part, also shall be entitled to be paid the
expense of prosecuting Agent’s claim. Neither the failure of the Corporation (including its Board
of Directors or its stockholders) to have made a determination prior to the commencement of such
enforcement action that indemnification of Agent is proper in the circumstances, nor an actual
determination by the Corporation (including its Board of Directors or its stockholders) that such
indemnification is improper shall be a defense to the action or create a presumption that Agent is
not entitled to indemnification under this Agreement or otherwise.
10. 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 Agent, 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.
11. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on Agent by this Agreement shall not be
exclusive of any other right Agent 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 Agent’s official capacity and as to action in another
capacity while holding office.
12. SURVIVAL OF RIGHTS.
(a) The rights conferred on Agent by this Agreement shall continue after Agent has ceased to
be a director, officer, employee or other agent of the Corporation or to serve at the request of
the Corporation as a director, officer, employee or other agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise and shall inure to the
benefit of Agent’s heirs, executors and administrators.
(b) The Corporation shall require 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, expressly 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. SEPARABILITY. 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. Furthermore, if this Agreement shall be invalidated
in its entirety on any ground, then the Corporation shall nevertheless indemnify Agent to the
fullest extent provided by the Bylaws, the Code or any other applicable law.
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 signed by both parties hereto.
5
16. IDENTICAL COUNTERPARTS. This Agreement may be executed in one or more counterparts, each
of which shall be deemed for all purposes to be an original but all of which together shall
constitute 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:
(a) If to Agent, at the address indicated on the signature page hereof.
(b) If to the Corporation, to
Compellent Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as may have been furnished to Agent by the Corporation, or to such other
address as the Agent may direct in writing the Corporation to use.
In Witness Whereof, the parties hereto have executed this Agreement on and as of the
day and year first above written.
| Compellent Technologies, Inc. | ||||
By: |
||||
Title: |
||||
| Agent | ||||
| (Signature) | ||||
| Agent Name and Address: | ||||
6