EXHIBIT 10.1
Schedule of Directors with whom the Company has executed Indemnification
Agreements, a form of which follows:
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INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, made and executed this ________ day of
___________, 2003, by and between CONCURRENT COMPUTER CORPORATION, Delaware
corporation (the "Company"), and __________________, an individual resident of
the State of ______________ (the "Indemnitee").
WHEREAS, the Company is aware that, in order to induce highly competent
persons to serve the Company as directors or officers or in other capacities,
the Company must provide such, persons with adequate protection through
insurance and indemnification against inordinate risks of claims and actions
against them arising out of their service to and activities on behalf of the
Company;
WHEREAS, the Company recognizes that the increasing difficulty in obtaining
directors' and officers' liability insurance, the increases in the cost of such
insurance and the general reductions in the coverage of such insurance have
increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board of Directors of the Company has determined that it is
essential to the best interests of the Company's stockholders that the Company
act to assure such persons that there will be increased certainty of such
protection in the future;
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 continue to serve the Company free
from undue concern that they will not be so indemnified; and
WHEREAS, the Indemnitee is willing to serve, continue to serve, and take on
additional service for or on behalf of the Company on the condition that he/she
be so indemnified.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and
Indemnitee do hereby agree as follows:
1. SERVICE BY THE INDEMNITEE. The Indemnitee agrees to serve
and/or continue to serve as a director or officer of the Company faithfully
and will discharge his/her duties and responsibilities to the best of
his/her ability so long as the Indemnitee is duly elected or qualified in
accordance with the provisions of the Restated Certificate of
Incorporation, as amended (the "Certificate"), and Amended and Restated
By-laws, as amended (the "By-laws") of the Company and the General
Corporation Law of the State of Delaware, as amended (the "DGCL"), or until
his/her earlier death, resignation or removal. The Indemnitee may at any
time and for any reason resign from such position (subject to any other
contractual obligation or other obligation imposed by operation by law), in
which event the Company shall have no obligation under this Agreement to
continue the Indemnitee in any such position. Nothing in this Agreement
shall confer upon the Indemnitee the right to continue in the employ of the
Company or as a director of the Company or affect the right of the Company
to terminate the Indemnitee's employment at any time in the sole discretion
of the Company, with or without cause, subject to any contract rights of
the Indemnitee created or existing otherwise than under this Agreement.
2. INDEMNIFICATION. The Company shall indemnify the Indemnitee
against all Expenses (as defined below), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the Indemnitee as
provided in this Agreement to the fullest extent permitted by the
Certificate, By-laws and DGCL or other applicable law in effect on the date
of this Agreement and to any greater extent that applicable law may in the
future from time to time permit. Without diminishing the scope of the
indemnification provided by this Section 2, the rights of indemnification
of the Indemnitee provided hereunder shall include, but shall not be
limited to, those rights hereinafter set forth, except that no
indemnification shall be paid to the Indemnitee:
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(a) on account of any suit in which judgment is rendered against
the Indemnitee for disgorgement of profits made from the purchase or sale
by the Indemnitee of securities of the Company pursuant to the provisions
of Section 16(b) of the Securities Exchange Act of 1934, as amended (the
"Act"), or similar provisions of any federal, state or local statutory law;
(b) on account of conduct of the Indemnitee which is finally
adjudged by a court of competent jurisdiction to have been knowingly
fraudulent or to constitute willful misconduct;
(c) in any circumstance where such indemnification is expressly
prohibited by applicable law;
(d) with respect to liability for which payment is actually made
to the Indemnitee under a valid and collectible insurance policy or under a
valid and enforceable indemnity clause, By-law or agreement (other than
this Agreement), except in respect of any liability in excess of payment
under such insurance, clause, By-law or agreement;
(e) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful (and, in
this respect, both the Company and the Indemnitee have been advised that it
is the position of the Securities and Exchange Commission that
indemnification for liabilities arising under the federal securities laws
is against public policy and is, therefore, unenforceable, and that claims
for indemnification should be submitted to the appropriate court for
adjudication); or
(f) in connection with any proceeding by the Indemnitee against
the Company or its directors, officers, employees or other Indemnitees, (i)
unless such indemnification is expressly required to be made by law, (ii)
unless the proceeding was authorized by the Board of Directors of the
Company, (iii) unless such indemnification is provided by the Company, in
its sole discretion, pursuant to the powers vested in the Company under
applicable law, or (iv) except as provided in Sections 11 and 13 hereof.
3. ACTIONS OR PROCEEDINGS OTHER THAN AN ACTION BY OR IN THE RIGHT
OF THE COMPANY. The Indemnitee shall be entitled to the indemnification
rights provided in this Section 3 if the Indemnitee was or is a party or is
threatened to be a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative in nature, other than an action by or in the right of the
Company, by reason of the fact that the Indemnitee is or was a director,
officer, employee, agent or fiduciary of the Company, or is or was serving
at the request of the Company as a director, officer, employee, agent or
fiduciary of any other entity, including, but not limited to, another
corporation, partnership, limited liability company, employee benefit plan,
joint venture, trust or other enterprise, or by reason of any act or
omission by him/her in such capacity. Pursuant to this Section 3, the
Indemnitee shall be indemnified against all Expenses, judgments, penalties
(including excise and similar taxes), fines and amounts paid in settlement
which were actually and reasonably incurred by the Indemnitee in connection
with such action, suit or proceeding (including, but not limited to, the
investigation, defense or appeal thereof), if the Indemnitee acted in good
faith and in a manner the Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his/her
conduct was unlawful.
4. ACTIONS BY OR IN THE RIGHT OF THE COMPANY. The Indemnitee
shall be entitled to the indemnification rights provided in this Section 4
if the Indemnitee was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding brought by
or in the right of the Company to procure a judgment in its favor by reason
of the fact that the Indemnitee is or was a director, officer, employee,
agent or fiduciary of the Company, or is or was serving at the request of
the Company as a director, officer, employee, agent or fiduciary of another
entity, including, but not limited to, another corporation, partnership,
limited liability company, employee benefit plan, joint venture, trust or
other enterprise, or by reason of any act or omission by him/her in any
such capacity. Pursuant to this Section 4, the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by
him/her in connection with the defense or settlement of such action, suit
or proceeding (including, but not limited to the investigation, defense or
appeal thereof), if the Indemnitee acted in good faith and in a manner the
Indemnitee reasonably believed to
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be in or not opposed to the best interests of the Company; provided
however, that no such indemnification shall be made in respect of any
claim, issue, or matter as to which the Indemnitee shall have been adjudged
to be liable to the Company, unless and only to the extent that the Court
of Chancery of the State of Delaware or the court in which such action,
suit or proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances
of the case, the Indemnitee is fairly and reasonably entitled to be
indemnified against such Expenses actually and reasonably incurred by
him/her which such court shall deem proper.
5. GOOD FAITH DEFINITION. For purposes of this Agreement, the
Indemnitee shall be deemed to have acted in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, or, with respect to any criminal action or
proceeding to have had no reasonable cause to believe the Indemnitee's
conduct was unlawful, if such action was based on (i) the records or books
of the account of the Company or other enterprise, including financial
statements; (ii) information supplied to the Indemnitee by the officers of
the Company or other enterprise in the course of their duties; (iii) the
advice of legal counsel for the Company or other enterprise; or (iv)
information or records given in reports made to the Company or other
enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Company or other
enterprise.
6. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Agreement, to the extent that
the Indemnitee has served on behalf of the Company as a witness or other
participant in any class action or proceeding, or has been successful, on
the merits or otherwise, in defense of any action, suit or proceeding
referred to in Section 3 and 4 hereof, or in defense of any claim, issue or
matter therein, including, but not limited to, the dismissal of any action
without prejudice, the Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred by the Indemnitee in connection therewith,
regardless of whether or not the Indemnitee has met the applicable
standards of Section 3 or 4 and without any determination pursuant to
Section 8.
7. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under
any provision of this Agreement to indemnification by the Company for some
or a portion of the Expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by the Indemnitee in connection
with the investigation, defense, appeal or settlement of such suit, action,
investigation or proceeding described in Section 3 or 4 hereof, but is not
entitled to indemnification for the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for the portion of such Expenses,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by the Indemnitee to which the Indemnitee is entitled.
8. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) To obtain indemnification under this Agreement, Indemnitee shall submit
to the Company a written request, including documentation and information
which is reasonably available to Indemnitee and is reasonably necessary to
determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt
of a request for indemnification, advise the Board of Directors in writing
that Indemnitee has requested indemnification. Any Expenses incurred by the
Indemnitee in connection with the Indemnitee's request for indemnification
hereunder shall be borne by the Company. The Company hereby indemnifies and
agrees to hold the Indemnitee harmless for any Expenses incurred by
Indemnitee under the immediately preceding sentence irrespective of the
outcome of the determination of the Indemnitee's entitlement to
indemnification.
(b) Upon written request by the Indemnitee for indemnification pursuant
to Section 3 or 4 hereof, the entitlement of the Indemnitee to indemnification
pursuant to the terms of this Agreement shall be determined by the following
person or persons, who shall be empowered to make such determination: (i) if a
Change in Control (as hereinafter defined) shall have occurred, by Independent
Counsel (as hereinafter defined) (unless the Indemnitee shall request in writing
that such determination be made by the Board of Directors (or a committee
thereof) in the manner provided for in clause (ii) of this Section 8(b)) in a
written opinion to the Board of Directors, a copy of which shall be delivered to
the Indemnitee; or (ii) if a Change in Control shall not have occurred, (A)(1)
by the Board of Directors of the Company, by a majority vote of Disinterested
Directors (as hereinafter defined) even though less than a quorum, or (2) by a
committee of
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Disinterested Directors designated by majority vote of Disinterested Directors,
even though less than a quorum, or (B) if there are no such Disinterested
Directors or, even if there are such Disinterested Directors, if the Board of
Directors, by the majority vote of Disinterested Directors, so directs, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to the Indemnitee. Such Independent Counsel shall be
selected by the Board of Directors and approved by the Indemnitee. Upon failure
of the Board of Directors to so select, or upon failure of the Indemnitee to so
approve, such Independent Counsel shall be selected by the Chancellor of the
State of Delaware or such other person as the Chancellor shall designate to make
such selection. Such determination of entitlement to indemnification shall be
made not later than 45 days after receipt by the Company of a written request
for indemnification. If the person making such determination shall determine
that the Indemnitee is entitled to indemnification as to part (but not all) of
the application for indemnification, such person shall reasonably prorate such
part of indemnification among such claims, issues or matters. If it is so
determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within ten days after such determination.
9. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. (a) In making
a determination with respect to entitlement to indemnification, the
Indemnitee shall be presumed to be entitled to indemnification hereunder
and the Company shall have the burden of proof in the making of any
determination contrary to such presumption.
(b) If the Board of Directors, or such other person or persons
empowered pursuant to Section 8 to make the determination of whether Indemnitee
is entitled to indemnification, shall have failed to make a determination as to
entitlement to indemnification within 45 days after receipt by the Company of
such request, the requisite determination of entitlement to indemnification
shall be deemed to have been made and the Indemnitee shall be absolutely
entitled to such indemnification, absent actual and material fraud in the
request for indemnification or a prohibition of indemnification under applicable
law. The termination of any action, suit, investigation or proceeding described
in Section 3 or 4 hereof by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself: (a) create a
presumption that the Indemnitee did not act in good faith and in a manner which
he/she reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, that the
Indemnitee has reasonable cause to believe that the Indemnitee's conduct was
unlawful; or (b) otherwise adversely affect the rights of the Indemnitee to
indemnification, except as may be provided herein.
10. ADVANCEMENT OF EXPENSES. All reasonable Expenses actually
incurred by the Indemnitee in connection with any threatened or pending
action, suit or proceeding shall be paid by the Company in advance of the
final disposition of such action, suit or proceeding, if so requested by
the Indemnitee, within 20 days after the receipt by the Company of a
statement or statements from the Indemnitee requesting such advance or
advances. The Indemnitee may submit such statements from time to time. The
Indemnitee's entitlement to such Expenses shall include those incurred in
connection with any proceeding by the Indemnitee seeking an adjudication or
award in arbitration pursuant to this Agreement. Such statement or
statements shall reasonably evidence the Expenses incurred by the
Indemnitee in connection therewith and shall include or be accompanied by a
written affirmation by Indemnitee of Indemnitee's good faith belief that
Indemnitee has met the standard of conduct necessary for indemnification
under this Agreement and an undertaking by or on behalf of the Indemnitee
to repay such amount if it is ultimately determined that the Indemnitee is
not entitled to be indemnified against such Expenses by the Company
pursuant to this Agreement or otherwise. Each written undertaking to pay
amounts advanced must be an unlimited general obligation but need not be
secured, and shall be accepted without reference to financial ability to
make repayment.
11. REMEDIES OF THE INDEMNITEE IN CASES OF DETERMINATION NOT TO
INDEMNIFY OR TO ADVANCE EXPENSES. In the event that a determination is made
that the Indemnitee is not entitled to indemnification hereunder or if the
payment has not been timely made following a determination of entitlement
to indemnification pursuant to Sections 8 and 9, or if Expenses are not
advanced pursuant to Section 10, the Indemnitee shall be entitled to a
final adjudication in an appropriate court of the State of Delaware or any
other court of competent jurisdiction of the Indemnitee's entitlement to
such indemnification or advance. Alternatively, the Indemnitee may, at the
Indemnitee's option, seek an award in arbitration to be conducted by a
single arbitrator pursuant to the rules of the American Arbitration
Association, such award to be made within 60 days following the filing of
the demand for arbitration. The Company shall not oppose the Indemnitee's
right to seek any such adjudication or
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award in arbitration or any other claim. Such judicial proceeding or
arbitration shall be made de novo, and the Indemnitee shall not be
prejudiced by reason of a determination (if so made) that the Indemnitee is
not entitled to indemnification. If a determination is made or deemed to
have been made pursuant to the terms of Section 8 or Section 9 hereof that
the Indemnitee is entitled to indemnification, the Company shall be bound
by such determination and shall be precluded from asserting that such
determination has not been made or that the procedure by which such
determination was made is not valid, binding and enforceable. The Company
further agrees to stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement and is
precluded from making any assertions to the contrary. If the court or
arbitrator shall determine that the Indemnitee is entitled to any
indemnification hereunder, the Company shall pay all reasonable Expenses
actually incurred by the Indemnitee in connection with such adjudication or
award in arbitration (including, but not limited to, any appellate
proceedings).
12. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by
the Indemnitee of notice of the commencement of any action, suit or
proceeding, the Indemnitee will, if a claim in respect thereof is to be
made against the Company under this Agreement, notify the Company in
writing of the commencement thereof; but the omission to so notify the
Company will not relieve the Company from any liability that it may have to
the Indemnitee otherwise than under this Agreement or otherwise, except to
the extent that the Company may suffer material prejudice by reason of such
failure. Notwithstanding any other provision of this Agreement, with
respect to any such action, suit or proceeding as to which the Indemnitee
gives notice to the Company of the commencement thereof:
(a) The Company will be entitled to participate therein at its own
expense.
(b) Except as otherwise provided in this Section 12(b), to the
extent that it may wish, the Company, jointly with any other indemnifying
party similarly notified, shall be entitled to assume the defense thereof
with counsel reasonably satisfactory to the Indemnitee. After notice from
the Company to the Indemnitee of its election to so assume the defense
thereof, the Company shall not be liable to the Indemnitee under this
Agreement for any legal or other Expenses subsequently incurred by the
Indemnitee in connection with the defense thereof other than reasonable
costs of investigation or as otherwise provided below. The Indemnitee shall
have the right to employ the Indemnitee's own counsel in such action or
lawsuit, but the fees and Expenses of such counsel incurred after notice
from the Company of its assumption of the defense thereof shall be at the
expense of the Indemnitee unless (i) the employment of counsel by the
Indemnitee has been authorized by the Company, (ii) the Indemnitee shall
have reasonably concluded that there may be a conflict of interest between
the Company and the Indemnitee in the conduct of the defense of such action
and such determination by the Indemnitee shall be supported by an opinion
of counsel, which opinion shall be reasonably acceptable to the Company, or
(iii) the Company shall not in fact have employed counsel to assume the
defense of the action, in each of which cases the fees and Expenses of
counsel shall be at the expense of the Company. The Company shall not be
entitled to assume the defense of any action, suit or proceeding brought by
or on behalf of the Company or as to which the Indemnitee shall have
reached the conclusion provided for in clause (ii) above.
(c) The Company shall not be liable to indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of any action or
claim effected without its written consent, which consent shall not be
unreasonably withheld. The Company shall not be required to obtain the
consent of Indemnitee to settle any action or claim which the Company has
undertaken to defend if the Company assumes full and sole responsibility
for such settlement and such settlement grants Indemnitee a complete and
unqualified release in respect of potential liability.
(d) If, at the time of the receipt of a notice of a claim pursuant
to this Section 12, the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to
pay, on behalf of the Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of the policies.
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13. OTHER RIGHT TO INDEMNIFICATION. The indemnification and
advancement of Expenses provided by this Agreement are cumulative, and not
exclusive, and are in addition to any other rights to which the Indemnitee
may now or in the future be entitled under any provision of the By-laws or
Certificate of the Company, any vote of stockholders or Disinterested
Directors, any provision of law or otherwise. Except as required by
applicable law, the Company shall not adopt any amendment to its By-laws or
Certificate the effect of which would be to deny, diminish or encumber the
Indemnitee's right to indemnification under this Agreement.
14. DIRECTOR AND OFFICER LIABILITY INSURANCE. The Company shall
maintain directors' and officers' liability insurance for so long as
Indemnitee's services are covered hereunder, provided and to the extent
that such insurance is available on a commercially reasonable basis. In the
event the Company maintains directors' and officers' liability insurance,
the Indemnitee shall be named as an insured in such manner as to provide
the Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company's officers or directors. However, the
Company agrees that the provisions hereof shall remain in effect regardless
of whether liability or other insurance coverage is at any time obtained or
retained by the Company; except that any payments made to, or on behalf of,
the Indemnitee under an insurance policy shall reduce the obligations of
the Company hereunder.
15. SPOUSAL INDEMNIFICATION. The Company will indemnify the
Indemnitee's spouse to whom the Indemnitee is legally married at any time
the Indemnitee is covered under the indemnification provided in this
Agreement (even if Indemnitee did not remain married to him or her during
the entire period of coverage) against any pending or threatened action,
suit, proceeding or investigation for the same period, to the same extent
and subject to the same standards, limitations, obligations and conditions
under which the Indemnitee is provided indemnification herein, if the
Indemnitee's spouse (or former spouse) becomes involved in a pending or
threatened action, suit, proceeding or investigation solely by reason of
his or her status as Indemnitee's spouse, including, without limitation,
any pending or threatened action, suit, proceeding or investigation that
seeks damages recoverable from marital community property, jointly-owned
property or property purported to have been transferred from the Indemnitee
to his/her spouse (or former spouse). The Indemnitee's spouse or former
spouse also may be entitled to advancement of Expenses to the same extent
that Indemnitee is entitled to advancement of Expenses herein. The Company
may maintain insurance to cover its obligation hereunder with respect to
Indemnitee's spouse (or former spouse) or set aside assets in a trust or
escrow fund for that purpose.
16. INTENT. This Agreement is intended to be broader than any
statutory indemnification rights applicable in the State of Delaware and
shall be in addition to any other rights Indemnitee may have under the
Company's Certificate, By-laws, applicable law or otherwise. To the extent
that a change in applicable law (whether by statute or judicial decision)
permits greater indemnification by agreement than would be afforded
currently under the Company's Certificate, By-laws, applicable law or this
Agreement, it is the intent of the parties that Indemnitee enjoy by this
Agreement the greater benefits so afforded by such change.
17. ATTORNEY'S FEES AND OTHER EXPENSES TO ENFORCE AGREEMENT. In
the event that the Indemnitee is subject to or intervenes in any proceeding
in which the validity or enforceability of this Agreement is at issue or
seeks an adjudication or award in arbitration to enforce the Indemnitee's
rights under, or to recover damages for breach of, this Agreement the
Indemnitee, if he/she prevails in whole or in part in such action, shall be
entitled to recover from the Company and shall be indemnified by the
Company against any actual expenses for attorneys' fees and disbursements
reasonably incurred by the Indemnitee.
18. EFFECTIVE DATE. The provisions of this Agreement shall cover
claims, actions, suits or proceedings whether now pending or hereafter
commenced and shall be retroactive to cover acts or omissions or alleged
acts or omissions which heretofore have taken place. The Company shall be
liable under this Agreement, pursuant to Sections 3 and 4 hereof, for all
acts of the Indemnitee while serving as a director and/or officer,
notwithstanding the termination of the Indemnitee's service, if such act
was performed or omitted to be performed during the term of the
Indemnitee's service to the Company.
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19. DURATION OF AGREEMENT. This Agreement shall survive and
continue even though the Indemnitee may have terminated his/her service as
a director, officer, employee, agent or fiduciary of the Company or as a
director, officer, employee, agent or fiduciary of any other entity,
including, but not limited to another corporation, partnership, limited
liability company, employee benefit plan, joint venture, trust or other
enterprise or by reason of any act or omission by the Indemnitee in any
such capacity. This Agreement shall be binding upon the Company and its
successors and assigns, including, without limitation, any corporation or
other entity which may have acquired all or substantially all of the
Company's assets or business or into which the Company may be consolidated
or merged, and shall inure to the benefit of the Indemnitee and his/her
spouse, successors, assigns, heirs, devisees, executors, administrators or
other legal representations. The Company shall require any successor or
assignee (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by written agreement in form and substance reasonably satisfactory
to the Company and the Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company
would be required to perform if no such succession or assignment had taken
place.
20. DISCLOSURE OF PAYMENTS. Except as expressly required by any
Federal or state securities laws or other Federal or state law, neither
party shall disclose any payments under this Agreement unless prior
approval of the other party is obtained.
21. SEVERABILITY. If any provision or provisions of this
Agreement shall be held invalid, illegal or unenforceable for any reason
whatsoever, (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, but not limited to, all portions
of any Sections of this Agreement containing any such provision held to be
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, but not limited to, all portions of any
paragraph of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal
or unenforceable) shall be construed so as to give effect to the intent
manifest by the provision held invalid, illegal or unenforceable.
22. COUNTERPARTS. This Agreement may be executed by 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 shall be required to be produced to evidence the
existence of this Agreement.
23. CAPTIONS. The captions and headings used in this Agreement
are inserted for convenience only and shall not be deemed to constitute
part of this Agreement or to affect the construction thereof.
24. DEFINITIONS. For purposes of this Agreement:
(a) "Change in Control" shall mean a change in control of the
Company occurring after the date hereof of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
(or in response to any similar item on any similar schedule or form)
promulgated under the Act, whether or not the Company is then subject to
such reporting requirement; provided, however, that, without limitation, a
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Change in Control shall include: (i) the acquisition (other than from the
Company) by any person, entity or "group" within the meaning of Section
13(d)(3) or 14(d)(2) of the Act (excluding, for this purpose, the Company
or its subsidiaries, any employee benefit plan of the Company or its
subsidiaries which acquires beneficial ownership of voting securities of
the Company, and any qualified institutional investor who meets the
requirements of Rule 13d-1(b)(1) promulgated under the Act) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Act), of
20% or more of either the then-outstanding shares of common stock or the
combined voting power of the Company's then-outstanding capital stock
entitled to vote generally in the election of directors; (ii) individuals
who, as of the date hereof, constitute the Board of Directors (the
"Incumbent Board") ceasing for any reason to constitute at least a majority
of the Board of Directors, provided that any person becoming a director
subsequent to the date hereof whose election, or nomination for election by
the Company's stockholders was approved by a vote of at least a majority of
the directors then
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comprising the Incumbent Board (other than an election or nomination of an
individual whose initial assumption of office is in connection with an
actual or threatened election contest relating to the election of the
directors of the Company) shall be, for purposes of this Agreement,
considered as though such person were a member of the Incumbent Board; or
(iii) approval by the stockholders of the Company of (A) a reorganization,
merger, or consolidation, in each case, with respect to which persons who
were the stockholders of the Company immediately prior to such
reorganization, merger, or consolidation do not, immediately thereafter,
own more than 75% of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged, consolidated or
other surviving corporation's then-outstanding voting securities, (B) a
liquidation or dissolution of the Company, or (C) the sale of all or
substantially all of the assets of the Company.
(b) "Disinterested Director" shall mean a director of the Company
who is not or was not a party to the action, suit, investigation or
proceeding in respect of which indemnification is being sought by the
Indemnitee.
(c) "Expenses" shall include all 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 incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating or being or preparing to be a witness in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative in nature.
(d) "Independent Counsel" shall mean a law firm or a member of a
law firm that neither is presently nor in the past five years has been
retained to represent (i) the Company or the Indemnitee in any matter
material to either such party or (ii) any other party to the action, suit,
investigation or proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel"
shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or the Indemnitee in an action to determine
the Indemnitee's right to indemnification under this Agreement.
25. ENTIRE AGREEMENT, MODIFICATION AND WAIVER. This Agreement
constitutes the entire agreement and understanding of the parties hereto
regarding the subject matter hereof, and no supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by
both parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing
waiver. No supplement, modification or amendment of this Agreement shall
limit or restrict any right of the Indemnitee under this Agreement in
respect of any act or omission of the Indemnitee prior to the effective
date of such supplement, modification or amendment unless expressly
provided therein.
26. NOTICES. All notices, requests, demands or other
communications hereunder shall be in writing and shall be deemed to have
been duly given if (i) delivered by hand with receipt acknowledged by the
party to whom said notice or other communication shall have been directed
or if (ii) mailed by certified or registered mail, return receipt requested
with postage prepaid, on the date shown on the return receipt:
(a) If to the Indemnitee to:
______________________________________
______________________________________
______________________________________
(b) If to the Company, to:
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Concurrent Computer Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
with a copy to:
King & Spalding LLP
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as may be furnished to the Indemnitee by the Company or
to the Company by the Indemnitee, as the case may be.
27. GOVERNING LAW. The parties hereto agree that this Agreement
shall be governed by, and construed and enforced in accordance with, the
laws of the State of Delaware, applied without giving effect to any
conflicts-of-law principles.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
CONCURRENT COMPUTER CORPORATION
By_________________________________
Name:______________________________
Title:_______________________________
INDEMNITEE:
By_________________________________
Name:______________________________
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