DOUBLE-TAKE SOFTWARE, INC. INDEMNIFICATION AGREEMENT
Exhibit 10.09
This
Indemnification Agreement (“Agreement”) is effective as of , 200 by
and between Double-Take Software, Inc., a Delaware corporation (“Double-Take”), and
(“Indemnified Person”).
WHEREAS, Double-Take desires to attract and retain the services of highly qualified
individuals, such as Indemnified Person, to serve Double-Take and its related entities;
WHEREAS, in order to induce Indemnified Person to continue to provide services to Double-Take
as an officer or a member of the Board of Directors and in order to provide Indemnified Person with
specific contractual assurance that indemnification will be available to Indemnified Person
regardless of, among other things, any amendment or revocation of Double-Take’s Certificate of
Incorporation or any acquisition transaction relating to Double-Take, Double-Take wishes to provide
for the indemnification of, and the advancement of expenses to, Indemnified Person to the maximum
extent permitted by law;
WHEREAS, Double-Take and Indemnified Person recognize the substantial increase in corporate
litigation in general, subjecting Board Members, directors, officers, employees, agents and
fiduciaries to expensive litigation risks at the same time as the availability and coverage of
liability insurance has been severely limited; and
WHEREAS, in view of the considerations set forth above, Double-Take desires that Indemnified
Person shall be indemnified and advanced expenses by Double-Take as set forth herein;
NOW, THEREFORE, Double-Take and Indemnified Person hereby agree as set forth below.
| 1. | Certain Definitions. |
(a) “Board Member” shall mean an individual (i) elected by stockholders of Double-Take or (ii)
appointed by members of its Board of Directors to serve on its Board of Directors.
(b) “Change in Control” shall mean a change in the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of Double-Take, or
any successor in interest thereto, whether through the ownership of voting securities, by
contract or otherwise. A rebuttable presumption of a Change in Control shall be created by any
of the following, which first occur after the date hereof, and Double-Take shall bear the
burden of proof to overcome such presumption: (i) any “person” (including, without limitation,
any individual, sole proprietorship, partnership, trust, corporation, association,
joint venture, or other entity, whether or not incorporated), or “group” of persons (as such
terms are used in Sections 13(d) and14(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”)), becomes, after the date hereof, the “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting power of the Company’s then
outstanding securities; (ii) during any two (2) year period, individuals who constitute the
Board at the beginning of such period, together with any new directors elected or appointed
during the period whose election or appointment resulted from a vacancy on the Board caused by
retirement, death, or disability of a director and whose election or appointment was approved
by a vote of at least a majority of the directors then still in office who were directors at
the beginning of the period, cease for any reason to constitute a majority of the Board; (iii)
the Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any person; (iv) the Company consolidates with, or merges
with or into another entity, or any entity consolidates with, or merges with or into, the
Company (a “Merger”), in which the owners of outstanding voting stock of the Company
immediately prior to such Merger do not represent at least a majority of the voting power in
the surviving entity after the Merger; or (v) the stockholders of the Company approve a plan of
liquidation or dissolution.
(c) “Claim” shall mean with respect to a Covered Event: any threatened, pending or completed
action, suit, proceeding, arbitration or alternative dispute resolution mechanism, or any hearing,
inquiry or investigation that Indemnified Person in good faith believes might lead to the
institution of any such action, suit, proceeding, arbitration or alternative dispute resolution
mechanism, whether civil, criminal, administrative, investigative or other.
(d) “Covered Event” shall mean any event or occurrence related to the fact that Indemnified
Person is or was a Board Member, officer, employee, agent or fiduciary of Double-Take, or any
subsidiary or affiliate of Double-Take, or is or was serving at the request of Double-Take as a
director, officer, partner (limited or general), member, trustee, employee, agent or fiduciary of
another corporation, partnership, joint venture, limited liability company, trust, other enterprise
or employee benefit plan, or by reason of any action or inaction on the part of Indemnified Person
while serving in such capacity.
(e) “Expenses” shall mean any and all expenses (including attorneys’ fees and all other costs,
expenses and obligations incurred in connection with investigating, defending, being a witness in
or participating in (including on appeal), or preparing to defend, to be a witness in or to
participate in, any action, suit, proceeding, arbitration, alternative dispute resolution
mechanism, hearing, inquiry or investigation), judgments, fines, penalties and amounts paid in
settlement (if such settlement is approved in advance by Double-Take, which approval shall not be
unreasonably withheld) of any Claim and any federal, state, local or foreign taxes imposed on the
Indemnified Person as a result of the actual or deemed receipt of any payments under this
Agreement.
(f) “Expense Advance” shall mean a payment to Indemnified Person pursuant to Section 3 of
Expenses in advance of the settlement of or final judgment in any action, suit, proceeding,
arbitration, or alternative dispute resolution mechanism, hearing, inquiry or investigation which
constitutes a Claim.
-2-
(g) “Independent Legal Counsel” shall mean an attorney or firm of attorneys, selected in
accordance with the provisions of Section 2(d) hereof, who shall not have otherwise performed
services for Double-Take or Indemnified Person within the last three years (other than with respect
to matters concerning the rights of Indemnified Person under this Agreement, or of other
Indemnified Persons under similar indemnity agreements).
(h) References to “Double-Take” shall include, in addition to Double-Take Software, Inc., any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or
merger to which Double-Take Software, Inc. (or any of its wholly owned subsidiaries) is a party
which, if its separate existence had continued, would have had power and authority to indemnify its
directors, officers, managers, employees, agents or fiduciaries, so that if Indemnified Person is
or was a director, officer, manager, employee, agent or fiduciary of such constituent corporation,
or is or was serving at the request of such constituent corporation as a director, officer,
manager, partner (general or limited), member, trustee, employee, agent or fiduciary of another
corporation, partnership, joint venture, limited liability company, employee benefit plan, trust or
other enterprise, Indemnified Person shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnified Person would have
with respect to such constituent corporation if its separate existence had continued.
(i) References to “other enterprises” shall include employee benefit plans; references to
“fines” shall include any excise taxes assessed on Indemnified Person with respect to an employee
benefit plan; and references to “serving at the request of Double-Take” shall include any service
as a Board Member, officer, employee, agent or fiduciary of Double-Take which imposes duties on, or
involves services by, such Board Member, officer, employee, agent or fiduciary with respect to an
employee benefit plan, its participants or its beneficiaries; and if Indemnified Person acted in
good faith and in a manner Indemnified Person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan, Indemnified Person shall be deemed to
have acted in a manner “not opposed to the best interests of Double-Take” as referred to in this
Agreement.
(j) “Reviewing Party” shall mean, subject to the provisions of Section 2(d), any person or
body appointed by the Board of Directors, and approved by the Indemnified Person, which approval
shall not be unreasonably withheld, in accordance with applicable law to review Double-Take’s
obligations hereunder and under applicable law, which may include a member or members of
Double-Take’s Board of Directors, Independent Legal Counsel or any other person or body not a party
to the particular Claim for which Indemnified Person is seeking indemnification.
(k) “Section” refers to a section of this Agreement unless otherwise indicated.
2. Indemnification.
(a) Indemnification of Expenses. Subject to the provisions of Section 2(b) below,
Double-Take shall indemnify Indemnified Person for Expenses to the fullest extent
-3-
permitted by law if Indemnified Person was or is or becomes a party to or witness or other participant in, or is
threatened to be made a party to or witness or other participant in, any Claim (whether by reason
of or arising in part out of a Covered Event), including all interest, assessments and other
charges paid or payable in connection with or in respect of such Expenses.
(b) Review of Indemnification Obligations. Notwithstanding the foregoing, in the
event any Reviewing Party shall have determined (in a written opinion, in any case in which
Independent Legal Counsel is the Reviewing Party) that indemnification of Indemnified Person
hereunder would constitute a violation of applicable law, (i) Double-Take shall have no further
obligation under Section 2(a) to make any payments to Indemnified Person not made prior to such
determination by such Reviewing Party, and (ii) Double-Take shall be entitled to be reimbursed by
Indemnified Person (who hereby agrees to reimburse Double-Take) for all Expenses theretofore paid
to Indemnified Person to which Indemnified Person may not be indemnified hereunder without
violating applicable law; provided, however, that if Indemnified Person has
commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure
a determination that Indemnified Person is entitled to be indemnified hereunder, any determination
made by any Reviewing Party that indemnification of Indemnified Person hereunder would constitute a
violation of applicable law shall not be binding and Indemnified Person shall not be required to
reimburse Double-Take for any Expenses theretofore paid in indemnifying Indemnified Person until a
final judicial determination is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed). Indemnified Person’s obligation to reimburse Double-Take
for any Expenses shall be unsecured and no interest shall be charged thereon.
(c) Indemnified Person Rights on Unfavorable Determination; Binding Effect. If any
Reviewing Party determines that indemnification of Indemnified Person hereunder in whole or in part
would constitute a violation of applicable law, Indemnified Person shall have the right to commence
litigation seeking an initial determination by the court or challenging any such determination by
such Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and,
subject to the provisions of Section 17, Double-Take hereby consents to service of process and to
appear in any such proceeding. Absent such litigation, any determination by any Reviewing Party
shall be conclusive and binding on Double-Take and Indemnified Person.
(d) Selection of Reviewing Party; Change in Control. If there has not been a Change
in Control, any Reviewing Party shall be selected by the Board of Directors, and approved by
Indemnified Person, which approval shall not be unreasonably withheld, and if there has been such a
Change in Control (other than a Change in Control which has been approved by a majority of
Double-Take’s Board of Directors who were Board Members immediately prior to such Change in
Control), any Reviewing Party with respect to all matters thereafter arising concerning the rights
of Indemnified Person to indemnification of Expenses under this
Agreement or any other agreement or under Double-Take’s Certificate of Incorporation as now or
hereafter in effect, or under any other applicable law, if desired by Indemnified Person, shall be
Independent Legal Counsel selected by Indemnified Person and approved by Double-Take (which
approval shall not be unreasonably withheld). Such counsel, among other things, shall render its
written opinion to Double-Take and Indemnified Person as
-4-
to whether and to what extent
indemnification of Indemnified Person hereunder would constitute a violation of applicable law and
Double-Take agrees to abide by such opinion. Double-Take agrees to pay the reasonable fees of the
Independent Legal Counsel referred to above and to indemnify fully such counsel against any and all
expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to
this Agreement or its engagement pursuant hereto. Notwithstanding any other provision of this
Agreement, Double-Take shall not be required to pay Expenses of more than one Independent Legal
Counsel in connection with all matters concerning a single Indemnified Person, and such Independent
Legal Counsel shall be the Independent Legal Counsel for any or all other Indemnified Persons
unless (i) Double-Take otherwise determines or (ii) any Indemnified Person shall provide a written
statement setting forth in detail a reasonable objection to such Independent Legal Counsel
representing other Indemnified Persons.
(e) Mandatory Payment of Expenses. Notwithstanding any other provision of this
Agreement other than Section 11 hereof, to the extent that Indemnified Person has been successful
on the merits or otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any Claim, Indemnified Person shall be indemnified against all Expenses
incurred by Indemnified Person in connection therewith.
3. Expense Advances.
(a) Obligation to Make Expense Advances. Upon receipt of a written undertaking by or
on behalf of the Indemnified Person to repay such amounts if it shall ultimately be determined that
the Indemnified Person is not entitled to be indemnified therefore by Double-Take hereunder under
applicable law, Double-Take shall make Expense Advances to Indemnified Person.
(b) Form of Undertaking. Any obligation to repay any Expense Advances hereunder
pursuant to a written undertaking by the Indemnified Person shall be unsecured and may be accepted
without reference to financial ability to make the repayment and no interest shall be charged
thereon.
4. Procedures for Indemnification and Expense Advances.
(a) Timing of Payments. All payments of Expenses (including without limitation
Expense Advances) by Double-Take to the Indemnified Person pursuant to this Agreement shall be made
to the fullest extent permitted by law as soon as practicable after written demand by Indemnified
Person therefor is presented to Double-Take, but in no event later than thirty (30) days after such
written demand by Indemnified Person is presented to Double-Take, except in the case of Expense
Advances, which shall be made no later than ten (10) business days after such written demand by
Indemnified Person is presented to Double-Take.
(b) Notice/Cooperation by Indemnified Person. Indemnified Person shall give
Double-Take notice in writing as soon as practicable of any Claim made against Indemnified Person
for which indemnification and/or Expense Advances, will or could be sought under this
-5-
Agreement; provided, however, that the failure to so notify Double-Take shall not relieve
Double-Take of its obligations hereunder except to the extent such failure has materially
prejudiced Double-Take. Notice to Double-Take shall be directed to the Chief Executive Officer of
Double-Take at the address shown on the signature page of this Agreement (or such other address as
Double-Take shall designate in writing to Indemnified Person). In addition, each of the
Indemnified Person and Double-Take shall give the other party such information related to the Claim
and cooperation as the other party may reasonably require and as shall be within such party’s
power.
(c) No Presumptions; Burden of Proof. For purposes of this Agreement, the termination
of any Claim by judgment, order, settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that
Indemnified Person did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by this Agreement or applicable
law. In addition, neither the failure of any Reviewing Party to have made a determination as to
whether Indemnified Person has met any particular standard of conduct or had any particular belief,
nor an actual determination by any Reviewing Party that Indemnified Person has not met such
standard of conduct or did not have such belief, prior to the commencement of legal proceedings by
Indemnified Person to secure a judicial determination that Indemnified Person should be indemnified
under this Agreement under applicable law, shall be a defense to Indemnified Person’s claim or
create a presumption that Indemnified Person has not met any particular standard of conduct or did
not have any particular belief. In connection with any determination by any Reviewing Party or
otherwise as to whether the Indemnified Person is entitled to be indemnified and/or Expense
Advances hereunder under applicable law, the burden of proof shall be on Double-Take to establish
that Indemnified Person is not so entitled.
(d) Notice to Insurers. If, at the time of the receipt by Double-Take of a notice of
a Claim pursuant to Section 4(b) hereof, Double-Take has liability insurance in effect which may
cover such Claim, Double-Take shall give prompt notice of the commencement of such Claim to the
insurers in accordance with the procedures set forth in the respective policies. Double-Take shall
thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnified Person, all amounts payable as a result of such Claim in accordance with the terms of
such policies.
(e) Selection of Counsel. In the event Double-Take shall be obligated hereunder to
provide indemnification for or make any Expense Advances with respect to the Expenses of any Claim,
Double-Take, if appropriate, shall be entitled to assume the defense of such Claim with counsel
approved by Indemnified Person (which approval shall not be unreasonably withheld) upon the
delivery to Indemnified Person of written notice of Double-Take’s election to do so. After
delivery of such notice, approval of such counsel by Indemnified
Person and the retention of such counsel by Double-Take, Double-Take will not be liable to
Indemnified Person under this Agreement for any fees or expenses of separate counsel subsequently
retained by or on behalf of Indemnified Person with respect to the same Claim; provided,
that, (i) Indemnified Person shall have the right to employ Indemnified Person’s separate counsel
in any such Claim at Indemnified Person’s expense and (ii) if (A) the
-6-
employment of separate counsel by Indemnified Person has been previously authorized by Double-Take, (B) Indemnified Person
shall have reasonably concluded that there may be a conflict of interest between Double-Take and
Indemnified Person in the conduct of any such defense, or (C) Double-Take shall not continue to
retain such counsel to defend such Claim, then the fees and expenses of Indemnified Person’s
separate counsel shall be Expenses for which Indemnified Person may receive indemnification or
Expense Advances hereunder.
(f) Settlements. Double-Take shall not be liable to indemnify Indemnified Person
under this Agreement for any amounts paid in settlement of any Claim effected without Double-Take’s
written consent. Double-Take shall not settle any Claim in any manner that would impose any
penalty or limitation on Indemnified Person or that would require the acknowledgment of any
wrongdoing by Indemnified Person without Indemnified Person’s written consent. Neither Double-Take
nor Indemnified Person will unreasonably withhold consent to any proposed settlement.
5. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. Double-Take hereby agrees to indemnify the Indemnified Person to the
fullest extent permitted by law, notwithstanding that such indemnification is not specifically
authorized by the other provisions of this Agreement, Double-Take’s Certificate of Incorporation or
by statute. In the event of any change after the date of this Agreement in any applicable law,
statute or rule which expands the right of a Delaware corporation to indemnify a director, officer,
employee, agent or fiduciary, it is the intent of the parties hereto that Indemnified Person shall
enjoy by this Agreement the greater benefits afforded by such change. In the event of any change
in any applicable law, statute or rule which narrows the right of a Delaware corporation to
indemnify a member of its Board of Directors or a director, officer, employee, agent or fiduciary,
such change, to the extent not otherwise required by such law, statute or rule to be applied to
this Agreement, shall have no effect on this Agreement or the parties’ rights and obligations
hereunder except as set forth in Section 11(a) hereof.
(b) Nonexclusivity. The indemnification and the payment of Expense Advances provided
by this Agreement shall be in addition to any rights to which Indemnified Person may be entitled
under Double-Take’s Certificate of Incorporation or bylaws, any other agreement, any vote of
stockholders or disinterested Board Members, the General Corporation Law of the State of Delaware
or otherwise. The indemnification and the payment of Expense Advances provided under this
Agreement shall continue as to Indemnified Person for any action taken or not taken while serving
in an indemnified capacity even though subsequent thereto Indemnified Person may have ceased to
serve in such capacity.
6. Allowance for Compliance with SEC Requirements. Indemnified Person acknowledges
that the Securities and Exchange Commission (“SEC”) has expressed the opinion that indemnification
of directors and officers from liabilities under the Securities Act of 1933, as amended (the
“Securities Act”), is against public policy as expressed in the Securities Act and, is therefore,
unenforceable. Indemnified Person hereby agrees that it will not be a breach of this Agreement for
Double-Take to undertake with the SEC in connection with the registration for sale of any stock or
other securities of Double-Take from time to time that, in the event a claim
-7-
for indemnification against such liabilities (other than the payment by Double-Take of expenses incurred or paid by a
director, officer, employee, agent or fiduciary of Double-Take in the successful defense of any
action, suit or proceeding) is asserted in connection with such stock or other securities being
registered, Double-Take will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of competent jurisdiction the question of whether or not
such indemnification by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue. Indemnified Person further agrees that such
submission to a court of competent jurisdiction shall not be a breach of this Agreement.
7. No Duplication of Payments. Double-Take shall not be liable under this Agreement
to make any payment in connection with any Claim made against Indemnified Person to the extent
Indemnified Person has otherwise actually received payment from or on behalf of Double-Take (under
any insurance policy, provision of Double-Take’s Certificate of Incorporation or otherwise) of the
amounts otherwise payable hereunder.
8. Partial Indemnification. If Indemnified Person is entitled under any provision of
this Agreement or otherwise to indemnification by Double-Take for some or a portion of Expenses
incurred in connection with any Claim, but not, however, for all of the total amount thereof,
Double-Take shall nevertheless indemnify Indemnified Person for the portion of such Expenses to
which Indemnified Person is entitled.
9. Mutual Acknowledgment. Both Double-Take and Indemnified Person acknowledge that in
certain instances, federal law or applicable public policy may prohibit Double-Take from
indemnifying its Board Members, officers, employees, agents or fiduciaries under this Agreement or
otherwise. Indemnified Person understands and acknowledges that Double-Take has undertaken or may
be required in the future to undertake with the Securities and Exchange Commission to submit the
question of indemnification to a court in certain circumstances for a determination of
Double-Take’s right under public policy to indemnify Indemnified Person.
10. Liability Insurance. To the extent Double-Take maintains liability insurance
applicable to Board Members, officers, employees, agents or fiduciaries, Indemnified Person shall
be covered by such policies in such a manner as to provide Indemnified Person the same rights and
benefits as are provided to the most favorably insured of Double-Take’s Board Members, if
Indemnified Person is a Board Member; or of Double-Take’s officers, if Indemnified Person is not a
Board Member of Double-Take but is an officer; or of Double-Take’s key employees, agents or
fiduciaries, if Indemnified Person is not an officer or Board
Member but is a key employee, agent or fiduciary. Upon any Change in Control, Double-Take
shall obtain continuation and/or “tail” coverage for Indemnified Person to the maximum extent
obtainable at such time.
11. Exceptions. Notwithstanding any other provision of this Agreement, Double-Take
shall not be obligated pursuant to the terms of this Agreement:
-8-
(a) Excluded Action or Omissions. To indemnify or make Expense Advances to
Indemnified Person with respect to Claims arising out of acts, omissions or transactions for which
Indemnified Person is prohibited from receiving indemnification under the Delaware General
Corporation Law.
(b) Claims Initiated by Indemnified Person. To indemnify or make Expense Advances to
Indemnified Person with respect to Claims initiated or brought voluntarily by Indemnified Person
and not by way of defense, counterclaim or crossclaim, except (i) with respect to actions or
proceedings brought to establish or enforce a right to indemnification under this Agreement or any
other agreement or insurance policy or under Double-Take’s Certificate of Incorporation now or
hereafter in effect relating to Claims for Covered Events, (ii) in specific cases if the Board of
Directors has approved the initiation or bringing of such Claim, or (iii) as otherwise required
under Section 145 of the Delaware General Corporation Law, regardless of whether Indemnified Person
ultimately is determined to be entitled to such indemnification, Expense Advances, or insurance
recovery, as the case may be.
(c) Lack of Good Faith. To indemnify Indemnified Person for any Expenses incurred by
the Indemnified Person with respect to any action instituted (i) by Indemnified Person to enforce
or interpret this Agreement, if a court having jurisdiction over such action determines as provided
in Section 14 that each of the material assertions made by the Indemnified Person as a basis for
such action was not made in good faith or was frivolous, or (ii) by or in the name of Double-Take
to enforce or interpret this Agreement, if a court having jurisdiction over such action determines
as provided in Section 14 that each of the material defenses asserted by Indemnified Person in such
action was made in bad faith or was frivolous.
(d) Claims Under Section 16(b). To indemnify Indemnified Person for Expenses and the
payment of profits arising from the purchase and sale by Indemnified Person of securities in
violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar
successor statute.
12. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall constitute an original.
13. Binding Effect; Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their respective successors,
assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise
to all or substantially all of the business or assets of Double-Take), spouses, heirs and personal
and legal representatives. Double-Take shall require and cause any successor
(whether direct or indirect, and whether by purchase, merger, consolidation or otherwise) to
all, substantially all, or a substantial part, of the business or assets of Double-Take, by written
agreement in form and substance satisfactory to Indemnified Person, expressly to assume and agree
to perform this Agreement in the same manner and to the same extent that Double-Take would be
required to perform if no such succession had taken place. This Agreement shall continue in effect
regardless of whether Indemnified Person continues to serve as a Board Member, director, officer,
employee, agent or fiduciary (as applicable) of Double-Take or of any other enterprise at
Double-Take’s request.
-9-
14. Expenses Incurred in Action Relating to Enforcement or Interpretation. In the
event that any action is instituted by Indemnified Person under this Agreement or under any
liability insurance policies maintained by Double-Take to enforce or interpret any of the terms
hereof or thereof, Indemnified Person shall be entitled to be indemnified for all Expenses incurred
by Indemnified Person with respect to such action (including, without limitation, attorneys’ fees),
regardless of whether Indemnified Person is ultimately successful in such action, unless as a part
of such action a court having jurisdiction over such action makes a final judicial determination
(as to which all rights of appeal therefrom have been exhausted or lapsed) that each of the
material assertions made by Indemnified Person as a basis for such action was not made in good
faith or was frivolous; provided, however, that until such final judicial
determination is made, Indemnified Person shall be entitled under Section 3 to receive payment of
Expense Advances hereunder with respect to such action. In the event of an action instituted by or
in the name of Double-Take under this Agreement to enforce or interpret any of the terms of this
Agreement, Indemnified Person shall be entitled to be indemnified for all Expenses incurred by
Indemnified Person in defense of such action (including without limitation costs and expenses
incurred with respect to Indemnified Person’s counterclaims and cross-claims made in such action),
unless as a part of such action a court having jurisdiction over such action makes a final judicial
determination (as to which all rights of appeal therefrom have been exhausted or lapsed) that each
of the material defenses asserted by Indemnified Person in such action was made in bad faith or was
frivolous; provided, however, that until such final judicial determination is made,
Indemnified Person shall be entitled under Section 3 to receive payment of Expense Advances
hereunder with respect to such action.
15. Period of Limitations. No legal action shall be brought and no cause of action
shall be asserted by or in the right of Double-Take against Indemnified Person, Indemnified
Person’s estate, spouse, heirs, executors or personal or legal representatives after the expiration
of two years from the date of accrual of such cause of action, and any claim or cause of action of
Double-Take shall be extinguished and deemed released unless asserted by the timely filing of a
legal action within such two year period; provided, however, that if any shorter
period of limitations is otherwise applicable to any such cause of action, such shorter period
shall govern.
16. Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and signed
for by the party addressed, on the date of such delivery, or (ii) if mailed by domestic certified
or registered mail with postage prepaid, on the third business day after the date postmarked.
Addresses for notice to either party are as shown on the signature page of this Agreement, or
as subsequently modified by written notice.
17. Consent to Jurisdiction. Double-Take and Indemnified Person each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware for all purposes in
connection with any action or proceeding which arises out of or relates to this Agreement and agree
that any action instituted under this Agreement shall be commenced, prosecuted and continued only
in the Court of Chancery of the State of Delaware in and for New Castle County, which shall be the
exclusive and only proper forum for adjudicating such a claim.
-10-
18. Severability. The provisions of this Agreement shall be severable in the event
that any of the provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, and the remaining provisions shall remain enforceable to the fullest extent
permitted by law. Furthermore, to the fullest extent possible, the provisions of this Agreement
(including without limitation each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or unenforceable) shall
be construed so as to give effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
19. Choice of Law. This Agreement, and all rights, remedies, liabilities, powers and
duties of the parties to this Agreement, shall be governed by and construed in accordance with the
laws of the State of Delaware as applied to contracts between Delaware residents entered into and
to be performed entirely in the State of Delaware without regard to principles of conflicts of
laws.
20. Subrogation. In the event of payment under this Agreement, Double-Take shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnified Person,
who shall execute all documents required and shall do all acts that may be necessary to secure such
rights and to enable Double-Take effectively to bring suit to enforce such rights.
21. Amendment and Termination. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed by both the
parties hereto. No waiver of any of the provisions of this Agreement shall be deemed to be or
shall constitute a waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver.
22. Integration and Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous written and oral
negotiations, commitments, understandings and agreements relating to the subject matter hereof
between the parties hereto.
23. No Construction as Employment Agreement. Nothing contained in this Agreement
shall be construed as giving Indemnified Person any right to be retained in the employ of
Double-Take or any of its subsidiaries or affiliated entities.
-11-
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement as of the
date first above written.
| DOUBLE-TAKE, INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: | ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ |
|||
| ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||||
| AGREED TO AND ACCEPTED | ||||
| INDEMNIFIED PERSON: | ||||
| By: | ||||
| (Signature) | ||||
| Name: | ||||
| (Print Name) | ||||
| Address: | ||||
-12-