Exhibit 10(d)
INDEMNIFICATION AGREEMENT
This Agreement, made and entered into this _____ day of
____________, 1996 ("Agreement"), by and between
____________________ a Delaware corporation (hereinafter
"_____________" or "Company"), and __________________
("Indemnitee"):
WHEREAS, highly competent persons are becoming more
reluctant to serve publicly-held corporations as directors or in
other capacities unless they are provided with adequate
protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out
of their service to and activities on behalf of the corporation;
and
WHEREAS, the current impracticability of obtaining adequate
insurance and the uncertainties relating to indemnification have
increased the difficulty of attracting and retaining such
persons;
WHEREAS, the Board of Directors of the Company has
determined that the inability to attract and retain such persons
is detrimental to the best interests of the Company's
stockholders an that the Company should act to assure such
persons that there will be increased certainty of such protection
in the future; and
WHEREAS, it is reasonable, prudent and necessary for the
Company contractually to obligate itself to indemnify such
persons to the fullest extent permitted by applicable law so that
they will serve or continue to serve the Company free from undue
concern that they will not be so indemnified; and
WHEREAS, Indemnitee is willing to serve, continue to serve
and to take on additional service for or on behalf of the Company
on the condition that he be so indemnified;
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, the Company and Indemnitee do hereby
covenant and agree as follows:
Section 1. Services by Indemnitee. Indemnitee agrees to
serve as a director and/or officer of the Company or any of its
subsidiaries or affiliates. Indemnitee may at any time and for
any reason resign from such position (subject to any other
contractual obligation or any obligation imposed by operation of
law), in which event the Company shall have no obligation under
this Agreement to continue Indemnitee in such position.
Section 2. Indemnification - General. The Company shall,
as provided herein and to the fullest extent______________ would
be permitted by Delaware law, as in effect from time to time
indemnify Indemnitee against all Expenses, liabilities and losses
(including but not limited to judgments and damage awards
containing both actual and punitive damages) penalties, fines,
arbitration awards, and amounts reasonably paid or to be paid in
any settlement suffered or incurred by the Indemnitee in
connection with any Proceeding. Indemnitee shall receive the
benefit of any modification of the Delaware General Corporate Law
that expands or broadens Indemnitee's rights to indemnification.
The right to indemnification conferred herein shall be a
contract right, shall continue in favor of Indemnitee whether or
not he ceases to be an officer or director of ____________, and
shall inure to the benefit of his heirs, executors and
administrators and shall include the right to be promptly paid or
to have paid on Indemnitee's behalf Expenses incurred in
connection with the prosecution, defense, or investigation of any
Proceeding in advance of its final disposition; provided,
however, that the payment of Expenses in advance of the final
disposition of a Proceeding shall be made only upon delivery to
Company of an undertaking, by or on behalf of Indemnitee, to
repay all amounts so advanced if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified by
Company, the form of such undertaking being attached hereto as
Exhibit A and by this reference incorporated herein. Expenses
shall be advanced or paid to Indemnitee within ten days after the
Company receives a statement from Indemnitee requesting
advancement or payment of any Expenses and reasonably evidencing
the Expenses incurred by or on behalf of Indemnitee.
Section 3. Prohibited Modifications. No action by
TradeWave whether by amendment to or repeal of the
indemnification provisions contained in the certificate of
incorporation or bylaws of ____________, or otherwise, shall
diminish or adversely affect any right or protection granted
Indemnitee pursuant to the provisions of this Agreement. No
supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto.
Section 4. Claims. If a claim for indemnification or for
payment or advancement of Expense arising under this Agreement is
not paid in full by Company within thirty (30) days after a
written claim or request for payment or advancement has been
received by Company, Indemnitee may, at any time thereafter,
bring suit against Company to recover the unpaid amount of the
claim, and if successful in whole or in part, the Indemnitee
shall in addition to any claim recovery, be entitled to be paid
all cost and expense of such suit (including attorney's fees,
costs of court, expert fees, travel costs and all other
expenses). In any such action, the Company shall have the burden
of proving that Indemnitee is not entitled to the requested
indemnification or payment or advancement of expenses.
Section 5. Contract Rights Not Exclusive. The contract
rights conferred by this Agreement shall be in addition to and
not exclusive of, and shall not be deemed to affect, any other
right which the Indemnitee may have or hereafter acquire under
any statute or the provisions of the certificate of incorporation
of ____________, the provisions of the bylaws of ___________, any
agreement, any policy of directors and officers liability
insurance, any vote of stockholders or disinterested directors of
____________ or otherwise.
Section 6. Claims Procedures and Choice of Counsel.
Indemnitee shall advise the Company, in writing of the
institution of any Proceeding which is or may be subject to this
Agreement within ten (10) days of Indemnitee's receiving notice
of any such Proceeding. The Indemnitee hereby agrees that
concurrently with notifying the Company of any claim in respect
of which indemnification may be sought hereunder, he will seek
indemnification under any arrangement (including without
limitation any directors' or officers' indemnification
arrangement or insurance policy, whether provided by charter or
bylaw provision, contract or otherwise) provided to him by
___________, or any affiliate, predecessor, or successor of the
foregoing (such entities, the "Other Indemnifying Parties").
Following a refusal by the Other Indemnifying Parties to
indemnify the Indemnitee in connection with a Proceeding, the
Company shall be entitled to assume the defense thereof at its
expense with counsel chosen by it and reasonably satisfactory to
the Indemnitee; provided, however, that the Indemnitee may at his
own expense retain separate counsel to participate in such
defense. Notwithstanding the foregoing, such Indemnitee shall
have the right to employ separate counsel at the Company's
expense and to control his own defense of such action or
Proceeding if, in the reasonable opinion of counsel to the
Company, a conflict or potential conflict exists between the
Company and Indemnitee that would make such separate
representation advisable; provided, however, that in no event
shall the Company be required to pay fees and expenses under this
indemnity for more than one firm of attorneys to represent
Indemnitee in any jurisdiction in any one legal action or group
of related legal actions, unless both civil and criminal
proceedings or investigations are involved. Indemnitee agrees
that he will not, without the prior written consent of the
Company, settle or compromise or consent to the entry of any
judgment in any Proceeding relating to any matter for which
Indemnitee may claim indemnity rights. The amount of any
recovery actually received by the Indemnitee from the Other
Indemnifying Parties shall reduce, dollar-for-dollar, any
liability of the Company to the Indemnitee under the
indemnification provisions of this Agreement. To the extent that
the Company has paid any amounts to or on behalf of the
Indemnitee pursuant to this Agreement, the Company shall be
subrogated to the rights of the Indemnitee against the Other
Indemnifying Parties and the Indemnitee shall reasonably assist
the Company in pursuing any recovery incident to such
subrogation.
Section 7. Indemnification for Expenses of a Witness.
Notwithstanding any other provisions 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.
Section 8. Indemnitee Coverage and Policy Maintenance. To
the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers,
employees, or agents of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise which such person serves at the request of the
Company, Indemnitee shall be covered by such policy or policies
in accordance with its or their terms to the maximum extent of
the coverage available for any such director, officer, employee
or agent under such policy or policies. The Company agrees to
utilize its best efforts to maintain Director and Officer
liability insurance coverage to cover Indemnitee at all times.
Section 9. Duration of Agreement. This Agreement shall
continue until and terminate upon the later of: (a) 10 years
after the date that Indemnitee shall have ceased to serve as a
director, officer, employee, or agent of the Company or of any
other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee served at the
request for the Company; or (b) the final termination of any
Proceeding then pending in respect of which Indemnitee is granted
rights of indemnification or advancement of expenses hereunder.
This Agreement shall be binding upon the Company and its
successors and assigns and shall inure to the benefit of
Indemnitee and his heirs, executors an administrators.
Section 10. Severability. If any provision or provisions
of this Agreement shall be held to be invalid, illegal or
unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this
Agreement (including without Limitation, each portion of any
Section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (b) to the fullest extent possible, the
provisions of this Agreement (including, without Limitation, each
portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is
not itself invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested thereby.
11. Definitions. a. "Corporate Status" describes the
status of a person who is or was a director, officer, employee or
agent of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
which such person is or was serving at the request for the
Company.
b. "Expenses" shall include all reasonable
attorneys' fees, retainers, court costs. transcript costs, fees
of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery
service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, or
preparing to be a witness in a Proceeding.
c. "Proceeding" includes any action, suit,
arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding,
whether civil, criminal, administrative or investigative, except
one (1) initiated by an Indemnitee pursuant to Section 4 of this
Agreement to enforce his rights under this Agreement or (ii)
pending on or before the Effective Date.
Section 13. 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 one and the same Agreement. Only one such
counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this
Agreement.
Section 14. Notices. All notices, requests, demands and
other communications hereunder shall be in writing and shall be
deemed to have been duly given if (I) delivered by hand and
receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed:
1. To the Company:
________________________________
________________________________
________________________________
________________________________
2. To_________________, Indemnitee:
________________________________
________________________________
________________________________
________________________________
or to such other addresses as may have been furnished to
Indemnitee by the Company or to the Company by Indemnitee, as the
case may be,
Section 15. Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the
State of Delaware.
Section 16. Miscellaneous. Use of the masculine pronoun
shall be deemed to include usage of the feminine pronoun where
appropriate.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the day and year first above written.
COMPANY:
______________________________
By:_____________________________
Name:__________________________
Title:____________________________
________________________________
_____________________,
Indemnitee
Name:__________________________
Exhibit "A"
UNDERTAKING AGREEMENT
AGREEMENT dated the ______ day of _________________, 19___,
by and between _____________, a Delaware corporation (such
company, together with its successors and assigns, if any, being
referred to herein as the "Company"), and, (the "lndemnitee"),
an officer of ________________________.
WHEREAS, the lndemnitee [is named as a party defendant in a
Proceeding specified in Exhibit I hereto and, in addition] [may
be named as a party defendant in future Proceedings which arise
in connection with or as a result of the Indemnitee's
relationship to or employment with _____________] (a
"Proceeding"):
WHEREAS, the Company and the Indemnitee have entered into an
Indemnification
Agreement dated the ______ day of ___________________, 19___ (the
"Agreement"):
WHEREAS, the Indemnitee desires that the Company pay any and
all Expenses (as defined) and costs (including, but not limited
to, attorneys' fees and stenographic, travel and court costs)
actually and reasonably incurred by the lndemnitee or on the
Indemnitee's behalf in defending or investigating each
Litigation, in accordance with the provisions of the Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements herein contained, the parties
hereto agree as follows:
1. As to payments made by the Company to the lndemnitee in
respect of each Proceeding, the Indemnitee in respect of each
Proceeding hereby undertakes and agrees to repay to the Company
any and all amounts so paid promptly, and in any event within
thirty (30) days, after the final disposition, including any
appeals, of such Proceedings provided, however, that such
repayment shall not be required if it shall be determined in
accordance with the Agreement or otherwise that the lndemnitee is
entitled to be indemnified by the Company pursuant to the
provisions of the Agreement.
2. This Agreement shall not affect in any manner any
rights which the lndemnitee may have against TradeWave or against
any other person to seek indemnification for, or reimbursement
of, any expenses and costs (including attorneys' fees) referred
to herein or indemnification for, or reimbursement of, any
judgment which may be rendered in any Proceeding.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date set forth above.
_________________________________
By:________________________________
Name:______________________________
Title:_____________________________
lndemnitee:________________________