Exhibit 10.1
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is made and entered into by and
between National Information Consortium, Inc., a Colorado corporation
("Company"), and ___________________ ___________________ ("Indemnitee") on
this ______ day of ________________, ______.
INTRODUCTION
Indemnitee is a director and/or officer of the Company. The parties
desire that the Company provide indemnification (including advancement of
expenses) to Indemnitee against any and all liabilities asserted against
Indemnitee to the fullest extent permitted by the Colorado Business
Corporation Act ("Act"), as the Act presently exists and may be expanded from
time to time. Based on such premise, and for certain good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
1. CONTINUED SERVICE. Indemnitee will serve at the will of the
Company or under separate contract, if such exists, as a director and/or
officer of the Company for so long as Indemnitee is duly elected and
qualified in accordance with the Bylaws of the Company or until Indemnitee
tenders his or her resignation to the Company.
2. INDEMNIFICATION. The Company shall indemnify Indemnitee as follows:
2.1 The Company shall indemnify Indemnitee when Indemnitee was,
is, or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative and whether formal or informal (other than an action by or
in the right of the Company), by reason of the fact that Indemnitee is or was
a director, officer, employee or agent of the Company or is or was serving at
the request of the Company as a director, officer, employee, associate,
fiduciary, manager, member, partner, promoter, trustee or agent of another
domestic or foreign corporation or other person or of an employee benefit
plan against reasonable expenses (including counsel fees) incurred by
Indemnitee in connection with such proceeding if Indemnitee conducted himself
or herself in good faith and Indemnitee reasonably believed that his or her
conduct was in or not opposed to the best interests of the Company, and, with
respect to any criminal proceeding, had no reasonable cause to believe that
his or her conduct was unlawful. The termination of any proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent is not, of itself, determinative that Indemnitee did not meet
the standard of conduct described in this Section 2.1.
2.2 The Company shall indemnify Indemnitee when Indemnitee was,
is, or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding by or in the right of the Company to
procure a judgment in its favor by reason of the fact that Indemnitee is or
was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee,
associate, fiduciary, manager, member, partner, promoter, trustee or agent of
another domestic or foreign corporation or other person or of an employee
benefit plan against reasonable expenses (including counsel fees) incurred by
Indemnitee in connection with such proceeding if Indemnitee conducted himself
or herself in good
faith and Indemnitee reasonably believed that his or her conduct was in or
not opposed to the best interests of the Company and except that no
indemnification pursuant to this Agreement shall be made in connection with a
proceeding (i) in which Indemnitee shall have been adjudged to be liable to
the Company, or (ii) charging that Indemnitee derived an improper personal
benefit, whether or not involving action in an official capacity, in which
proceeding Indemnitee was adjudged liable on the basis that he or she derived
an improper personal benefit, UNLESS and only to the extent that the court in
which such proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the proceeding, Indemnitee is fairly and reasonably entitled to indemnity for
such reasonable expenses which the court shall deem proper.
2.3 Any indemnification under Sections 2.1 and 2.2 (unless ordered
by a court) shall be made by the Company only as authorized in the specific
proceeding upon a determination, in accordance with the procedures set forth
in Section 3, that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of conduct
set forth in such Sections 2.1 and 2.2. Such determination shall be made (1)
by the board of directors of the Company by a majority vote of those present
at a meeting at which a quorum consisting of directors who were not parties
to such proceeding are present, (2) if a quorum cannot be obtained, by a
majority vote of a committee of the board of directors designated by the
board of directors, which committee shall consist of two or more directors
not parties to the proceeding, (3) if a quorum of the board cannot be
obtained nor a board committee established, or if a majority of the directors
constituting such quorum or such board committee so directs, by (a)
independent legal counsel selected by a vote of the board or the board
committee, or if a quorum of the full board cannot be obtained or a board
committee cannot be established, by independent legal counsel selected by a
majority vote of the full Board, or (b) by the stockholders of the Company.
2.4 Reasonable expenses (including counsel fees) incurred by
Indemnitee who is a party to any threatened, pending or completed civil,
criminal, administrative, or investigative action, suit or proceeding shall
be paid by the Company in advance of the final disposition of such
proceeding, as authorized in the manner provided in Section 2.3, within 14
days after the receipt by the Company from Indemnitee of a Statement of
Undertaking in substantially the form set forth in EXHIBIT A, in which
Indemnitee undertakes to repay such amount if it is ultimately determined
that Indemnitee did not meet the standard of conduct. Those people making
the determination must also determine that based upon the facts then known to
them, indemnification would not be precluded.
2.5 The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 2 shall not be deemed exclusive of any
other rights to which Indemnitee may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to
action in Indemnitee's official capacity and as to action in another capacity
while holding such office, shall continue after Indemnitee has ceased to be a
director, officer, employee or agent of the Company, and shall inure to the
benefit of the heirs, executors and administrators of Indemnitee.
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3. DETERMINATION OF RIGHT TO INDEMNIFICATION. For the purpose of
making the determination of whether to indemnify Indemnitee in a specific
case under Section 2.3, the board of directors of the Company, board
committee, independent legal counsel or stockholders, as the case may be,
shall make the determination in accordance with the following procedures:
3.1 Indemnitee shall submit to the board of directors a Statement
of Request for Indemnification in substantially the form set forth in EXHIBIT
B, in which Indemnitee states that Indemnitee has met the applicable standard
of conduct set forth in Sections 2.1 and 2.2.
3.2 Indemnitee's submission of a Statement of Request for
Indemnification to the board of directors shall create a rebuttable
presumption that Indemnitee has met the applicable standard of conduct set
forth in sections 2.1 and 2.2 and, therefore, is entitled to indemnification
under Section 2. The board of directors, board committee, independent legal
counsel or stockholders, as the case may be, shall determine, within 30 days
after submission of the Statement of Request for Indemnification,
specifically, that Indemnitee is so entitled, unless it or they shall possess
clear and convincing evidence to rebut the foregoing presumption, which
evidence shall be disclosed to Indemnitee with particularity in a sworn
written statement signed by all persons who participated in the determination
and voted to deny indemnification.
4. MERGER, CONSOLIDATION OR CHANGE IN CONTROL. If the Company is a
constituent corporation in a merger or consolidation, whether the Company is
the resulting or surviving corporation or is absorbed as a result thereof, or
if there is a change in control of the Company, Indemnitee shall stand in the
same position under this agreement with respect to the resulting, surviving
or changed corporation as Indemnitee would have with respect to the Company
if its separate existence had continued or if there had been no change in
control of the Company.
5. CERTAIN DEFINITIONS. For the purposes of this Agreement, the
following terms shall have the indicated meanings and understandings:
5.1 The term "change in control" shall include any change in the
ownership of a majority of the outstanding voting securities of the Company
or in the composition of a majority of the members of the board of directors
of the Company.
5.2 The term "corporation" shall include any domestic or foreign
entity that is a predecessor of a corporation by reason of a merger or other
transaction in which the predecessor's existence leased upon consummation of
the transaction.
5.3 The term "director" means an individual who is or was a
director of the Company or an individual who, while a director of the
Company, is or was surviving at the Company's request as a director, an
officer, an agent, an associate, an employee, a fiduciary, a manager, a
member, a partner, a promoter or a trustee of, or to hold any similar
position with, another domestic or foreign corporation or other person or of
an employee benefit plan. A director is considered to be serving an employee
benefit plan at the Company's request if the director's duties
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to the Company also impose duties on, or otherwise involve services by, the
director to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate or
personal representative of a director.
5.4 The term "liability" means the obligation incurred with
respect to a proceeding to pay a judgment, settlement, penalty, fine,
including an excise tax assessed with respect to an employee benefit plan, or
reasonable expenses.
5.5 The term "official capacity" means, when used with respect to
a director, the office of director in the Company and, when used with respect
to a person other than a director, the office in the Company held by the
officer or the employment, fiduciary or agency relationship undertaken by the
employee, fiduciary or agent on behalf of the Company. "Official capacity"
does not include service for any other domestic or foreign corporation or
other person or employee benefit plan.
5.6 The term "party" includes a person who was, is, or is
threatened to be made a named defendant or respondent in a proceeding.
5.7 The term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal.
6. COUNSEL FEES. If Indemnitee institutes any legal action to enforce
Indemnitee's rights under this Agreement, or to recover damages for breach of
this Agreement, Indemnitee, if Indemnitee prevails in whole or in part, shall
be entitled to recover from the Company all fees and expenses (including
counsel fees) incurred by Indemnitee in connection therewith.
7. DEPOSIT OF FUNDS IN TRUST. If the Company voluntarily decides to
dissolve or to file a petition for relief under the applicable bankruptcy,
moratorium or similar laws, then not later than 10 days prior to such
dissolution or filing, the Company shall deposit in trust for the sole and
exclusive benefit of Indemnitee a cash amount equal to all amounts previously
authorized to be paid to Indemnitee hereunder, such amounts to be used to
discharge the Company's obligations to Indemnitee hereunder. Any amounts in
such trust not required for such purpose shall be returned to the Company.
This Section 7 shall not apply to the dissolution of the Company in
connection with a transaction as to which Section 4 applies.
8. AMENDMENTS TO ACT. This Agreement is intended to provide indemnity
to Indemnitee to the fullest extent allowed under Colorado law. Accordingly,
to the extent permitted by law, if the Act permits greater indemnity than the
indemnity set forth herein, or if any amendment is made to the Act expanding
the indemnity permissible under Colorado law, the indemnity obligations
contained herein automatically shall be expanded, without the necessity of
action on the part of any party, to the extent necessary to provide to
Indemnitee the fullest indemnity permissible under Colorado law.
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9. MISCELLANEOUS PROVISIONS.
9.1 SURVIVAL. The provisions of this Agreement shall survive the
termination of Indemnitee's service as a director or officer of the Company.
9.2 ENTIRE AGREEMENT. This Agreement constitutes the full
understanding of the parties and a complete and exclusive statement of the
terms and conditions of their agreement relating to the subject matter hereof
and supersedes all prior negotiations, understandings and agreements, whether
written or oral, between the parties, their affiliates, and their respective
principals, shareholders, directors, officers, employees, consultants and
agents with respect thereto.
INDEMNITEE:
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NATIONAL INFORMATION CONSORTIUM, INC.
By:
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Title:
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EXHIBIT A
STATEMENT OF UNDERTAKING
STATE OF _______________________ )
) ss:
COUNTY OF _____________________ )
I, _______________________, being first duly sworn, depose and say as
follows:
10. This Statement of Undertaking is submitted pursuant to the
Indemnity Agreement dated ___________, 1999, between National Information
Consortium, Inc., a Colorado corporation ("Company"), and me.
11. I am requesting the advancement of certain reasonable expenses
which I have incurred in defending a civil, criminal, investigative or
administrative action, suit or proceeding by reason of the fact that I am or
was a director and/or officer of the Company.
12. I hereby undertake to repay this advancement of expenses if it is
ultimately determined that I did not meet the applicable standard of conduct
to be indemnified by the Company.
13. I am requesting the advancement of reasonable expenses in
connection with the following proceeding:
I have executed this Statement of Undertaking on ________________________.
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Signature
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Print Name
Subscribed and sworn to before me on ______________________.
My commission expires: ________________________
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Notary Public in and for said state and county
EXHIBIT B
STATEMENT OF REQUEST FOR INDEMNIFICATION
STATE OF _______________________ )
) ss:
COUNTY OF _____________________ )
I, _____________________________, being first duly sworn, depose and say as
follows:
14. This Statement of Request for Indemnification is submitted pursuant
to the Indemnity Agreement dated ________________, 1999, between National
Information Consortium, Inc., a Colorado corporation ("Company"), and me.
15. I am requesting indemnification against reasonable expenses
(including counsel fees) incurred by me in connection with a certain
proceeding to which I am a party or am threatened to be made a party by
reason of the fact that I am or was a director and/or officer of the Company.
16. With respect to all matters related to any such proceeding, I
conducted myself in good faith and I reasonably believed that my conduct was
in or not opposed to the best interests of the Company, and, with respect to
any criminal proceeding, I had no reasonable cause to believe that my conduct
was unlawful.
17. I am requesting indemnification in connection with the following
proceeding:
I have executed this Statement of Request for Indemnification on
___________________.
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Signature
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Print Name
Subscribed and sworn to before me on ______________________.
My commission expires: ________________________
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Notary Public in and for said state and county