Exhibit 10.7
EXECUTIVE OFFICERS AND DIRECTORS PARTIES TO AN INDEMNIFICATION AGREEMENT
1. Y. Xxxxx Xxxxxxxx
2. Xxxxxxxx Xxxxx
3. Xxxxx Xxxxxx
4. Xxxxxxx Xxxxxx
5. Xxxxx Xxxx
6. Ita Geva
7. Xxxx Xxxxxxxxxx
8. Xxxxx Xxxxx
9. Xxx X. Xx
INDEMNIFICATION AGREEMENT
AGREEMENT, made this ____ day of ___________, 200__,
between HPL Technologies, Inc., a Delaware corporation (the "Company"), and
____________ (the "Indemnitee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Indemnitee is a director and/or officer of the
Company.
WHEREAS, highly competent persons have become more reluctant
to serve publicly-held corporations as directors or in other capacities unless
they are provided with adequate protection through insurance or adequate
indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of the corporation.
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to enhance Indemnitee's continued
service to the Company in an effective manner and Indemnitee's reliance on the
provisions of the Company's Certificate of Incorporation ("Certificate of
Incorporation") and the Company's Bylaws (the "Bylaws") requiring
indemnification of the Indemnitee to the fullest extent permitted by law, and in
part to provide Indemnitee with specific contractual assurance that the
protection promised by such Certificate of Incorporation and Bylaws will be
available to Indemnitee (regardless of, among other things, any amendment to or
revocation of such Certificate of Incorporation or Bylaws or any change in the
composition of the Company's Board of Directors or acquisition transaction
relating to the Company), the Company wishes to provide in this Agreement for
the indemnification of and the advancing of expenses to Indemnitee to the full
extent (whether partial or complete) permitted by law and as set forth in this
Agreement.
WHEREAS, the Certificate of Incorporation, the Bylaws and the
General Corporation Law of the State of Delaware ("DGCL") expressly provide that
the indemnification provisions set forth therein are not exclusive and thereby
contemplate that contracts may be entered into between the Company and members
of the board of directors, officers and other persons with respect to
indemnification.
WHEREAS, it is reasonable, prudent and necessary for the
Company contractually to obligate itself to indemnify, and to advance expenses
on behalf of, such persons to the fullest extent permitted by applicable law so
that they will serve or continue to serve the Company free from undue concern
that they will not be so indemnified.
WHEREAS, this Agreement is a supplement to and in furtherance
of the Certificate of Incorporation and Bylaws and any resolutions adopted
pursuant thereto and shall not be deemed a substitute therefor, nor to diminish
or abrogate any rights of Indemnitee thereunder.
NOW, THEREFORE, in consideration of the premises and of
Indemnitee agreeing to serve or continuing to serve the Company directly or, at
its request, with another enterprise, and intending to be legally bound hereby,
the parties hereto agree as follows:
SECTION 1. BASIS INDEMNIFICATION AGREEMENT. (a) In the
event Indemnitee was, 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,
a Claim by reason of (or arising in part out of) an Indemnifiable Event, the
Company shall indemnify Indemnitee to the fullest extent permitted by law as
soon as practicable but in any event no later than 30 days after written demand
is presented to the Company, against any and all Expenses, judgments, fines,
penalties and amounts paid in settlement (including all interest, assessments
and other charges paid or payable in connection therewith) of such Claim
actually and reasonably incurred by or on behalf of Indemnitee in connection
with such Claim and any federal, state, local or foreign taxes imposed on
Indemnitee as a result of the actual or deemed receipt of any payments under
this Agreement. If requested by Indemnitee in writing, the Company shall advance
(within ten business days of such written request) any and all Expenses to
Indemnitee (an "Expense Advance"). Notwithstanding anything in this Agreement to
the contrary, and except as provided in Section 3, prior to a Change of Control,
Indemnitee shall not be entitled to indemnification pursuant to this Agreement
in connection with any Claim (i) initiated by Indemnitee against the Company or
any director or officer of the Company unless the Company has joined in or
consented to the initiation of such Claim; or (ii) made on account of
Indemnitee's conduct which constitutes a breach of Indemnitee's duty of loyalty
to the Company or its stockholders or is an act or omission not in good faith or
which involves intentional misconduct or a knowing violation of the law.
(b) Notwithstanding the foregoing, (i) the indemnification
obligations of the Company under Section 1(a) shall be subject to the condition
that the Reviewing Party shall not have determined (in a written opinion, in any
case in which the special independent counsel referred to in Section 2 hereof is
involved) that Indemnitee would not be permitted to be indemnified under
applicable law, and (ii) the obligation of the Company to make an Expense
Advance pursuant to Section 1(a) shall be subject to the condition that the
Company receives an undertaking that, if, when and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be reimbursed
by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if Indemnitee has commenced legal
proceedings in the Court of Chancery of the State of Delaware (the "Delaware
Court") to secure a determination that Indemnitee should be indemnified under
applicable law, any determination made by the Reviewing Party that Indemnitee
would not be permitted to be indemnified under applicable law shall not be
binding and Indemnitee shall not be required to reimburse the Company for any
Expense Advance until a final judicial determination is made with respect
thereto (as to which all rights of appeal therefrom have been exhausted or
lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances
shall be unsecured and no interest shall be charged thereon. If there has not
been a Change in Control, the Reviewing Party shall be selected by the Board of
Directors, and if there has been such a Change in Control, the
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Reviewing Party shall be the special independent counsel referred to in
Section 2 hereof. If there has been no determination by the Reviewing Party or
if the Reviewing Party determines that Indemnitee substantively would not be
permitted to be indemnified in whole or in part under applicable law, Indemnitee
shall have the right to commence litigation in the Delaware Court seeking an
initial determination by the court or challenging any such determination by the
Reviewing Party or any aspect thereof and the Company hereby consents to service
of process and to appear in any such proceeding. Any determination by the
Reviewing Party otherwise shall be conclusive and binding on the Company and
Indemnitee.
SECTION 2. CHANGE IN CONTROL. The Company agrees that if
there is a Change in Control of the Company (other than a Change in Control
which has been approved by two thirds or more of the Company's Board of
Directors who were directors immediately prior to such Change in Control) then
with respect to all matters thereafter arising concerning the rights of
Indemnitee to indemnity payments and Expense Advances under this Agreement or
any other agreement, the Bylaws or Certificate of Incorporation now or hereafter
in effect relating to Claims for Indemnifiable Events, the Company shall seek
legal advice only from special independent counsel selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably withheld or
delayed) and who has not otherwise performed services for the Company within the
last five years (other than in connection with such matters) or for Indemnitee.
In the event that Indemnitee and the Company are unable to agree on the
selection of the special independent counsel, such special independent counsel
shall be selected by lot from among at least five law firms with offices in the
State of Delaware having more than fifty attorneys, having a rating of "av" or
better in the then current Martindale Xxxxxxx Law Directory and having attorneys
which specialize in corporate law. Such selection shall be made in the presence
of Indemnitee (and his legal counsel or either of them, as Indemnitee may
elect). Such counsel, among other things, shall, within 90 days of its
retention, render its written opinion to the Company and Indemnitee as to
whether and to what extent Indemnitee would be permitted to be indemnified under
applicable law. The Company agrees to pay the reasonable fees of the special
independent counsel referred to above and to fully indemnify 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.
SECTION 3. INDEMNIFICATION FOR ADDITIONAL EXPENSES. The
Company shall indemnify Indemnitee against any and all expenses (including
attorneys' fees) and, if requested by Indemnitee in writing, shall (within ten
business days of such written request) advance such expenses to Indemnitee,
which are incurred by Indemnitee in connection with any Claim asserted against
or action brought by Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under this Agreement or any other agreement, the Bylaws
or Certificate of Incorporation now or hereafter in effect relating to Claims
for Indemnifiable Events and/or (ii) recovery under any directors' and officers'
liability insurance policies maintained by the Company, regardless of whether
Indemnitee ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be. The
Indemnitee shall qualify for advances solely upon the execution and delivery to
the Company of an undertaking providing that the Indemnitee undertakes to repay
the advance to the extent that it is ultimately determined that the Indemnitee
is not entitled to be indemnified by the Company.
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SECTION 4. PARTIAL INDEMNITY, ETC. If Indemnitee is
entitled under any provisions of this Agreement to indemnification by the
Company of some or a portion of the Expenses, liabilities, judgments, fines,
penalties and amounts paid in settlement of a Claim but not, however, for all of
the total amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion thereof to which Indemnitee is entitled. Moreover,
notwithstanding any other provision of this Agreement, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any or
all Claims relating in whole or in part to an Indemnifiable Event or in defense
of any issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith. In connection with any determination by the Reviewing Party or
otherwise as to whether Indemnitee is entitled to be indemnified hereunder the
burden of proof shall be on the Company to establish that Indemnitee is not so
entitled.
SECTION 5. NO PRESUMPTION. For purposes of this Agreement,
the termination of any action, suit or proceeding 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 Indemnitee
did not meet any particular standard of conduct or have any particular belief.
SECTION 6. NOTIFICATION AND DEFENSE OF CLAIM. Within
30 days after receipt by Indemnitee of notice of the commencement of a Claim
which may involve an Indemnifiable Event, Indemnitee will, if a claim in respect
thereof is to be made against the Company under this Agreement, submit to the
Company a written notice identifying the proceeding, but the omission so to
notify the Company will not relieve it from any liability which it may have to
Indemnitee under this Agreement unless the Company is materially prejudiced by
such lack of notice. With respect to any such Claim as to which Indemnitee
notifies the Company of the commencement thereof:
(a) the Company will be entitled to participate therein at
its own expense;
(b) except as otherwise provided below, to the extent that
it may wish, the Company jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
satisfactory to Indemnitee. After notice from the Company to Indemnitee of its
election to assume the defense thereof, the Company will not be liable to
Indemnitee under this Agreement for any legal or other expenses subsequently
incurred by Indemnitee in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Indemnitee
shall have the right to employ its own counsel in such action, suit or
proceeding, 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
Indemnitee unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) 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, or (iii) the Company shall not in
fact have employed counsel to assume the defense of such action, in each
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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 claim
brought by or on behalf of the Company or as to which Indemnitee shall have made
the conclusion provided for in clause (ii) above; and
(c) the Company shall not be liable to indemnify Indemnitee
under this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company shall not settle any action or
claim in any manner which would impose any penalty or limitation on Indemnitee
without Indemnitee's written consent. Neither the Company nor Indemnitee will
unreasonably withhold or delay their consent to any proposed settlement.
SECTION 7. NON-EXCLUSIVITY, ETC. The rights of Indemnitee
hereunder shall be in addition to any other rights Indemnitee may have under the
Certificate of Incorporation, the Bylaws, the DGCL, any agreement, a vote of the
stockholders, a resolution of directors or otherwise. No amendment, alteration
or repeal of this Agreement or of any provision hereof shall limit or restrict
any right of Indemnitee under this Agreement in respect of any action taken or
omitted by such Indemnitee acting on behalf of the Company and at the request of
the Company prior to such amendment, alteration or repeal. To the extent that a
change in the DGCL (whether by statute or judicial decision), the Certificate of
Incorporation or the Bylaws permits greater indemnification by agreement than
would be afforded currently under the Certificate of Incorporation, the Bylaws
and this Agreement, it is the intent of the parties hereto that Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change. No
right or remedy herein conferred is intended to be exclusive of any other right
or remedy, and every other right and remedy shall be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other right or remedy.
SECTION 8. LIABILITY INSURANCE. To the extent the Company
maintains an insurance policy or policies providing directors' and officers'
liability insurance, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage
available for any Company director or officer. If, at the time the Company
receives notice from any source of a Claim as to which Indemnitee is a party or
a participant (as a witness or otherwise), the Company has director and officer
liability insurance in effect, the Company shall give prompt notice 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 Claim in accordance with the terms of such
policies.
SECTION 9. CERTAIN DEFINITIONS.
(a) Change in Control: shall be deemed to have occurred if:
(i) before the Company has a class of securities
registered under Section 12 of the Securities Exchange Act of 1934 (the
"Exchange Act"):
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(A) the Company, or any material subsidiary
of the Company, is merged, consolidated or
reorganized into or with another corporation or other
legal person (an "Acquiring Person") or securities of
the Company are exchanged for securities of an
Acquiring Person, and as a result of such merger,
consolidation, reorganization or exchange less than a
majority of the combined voting power of the then
outstanding securities of the Acquiring Person
immediately after such transaction are held, directly
or indirectly, in the aggregate by the holders of
Voting Securities immediately prior to such
transaction;
(B) the Company, or any material subsidiary
of the Company, in any transaction or series of
related transactions, sells or otherwise transfers
all or substantially all of its assets to an
Acquiring Person, and less than a majority of the
combined voting power of the then outstanding
securities of the Acquiring Person immediately after
such sale or transfer are held, directly or
indirectly, in the aggregate by the holders of Voting
Securities immediately prior to such sale or
transfer;
(C) during any period of two consecutive
years, individuals who at the beginning of any such
period constitute the directors of the Company cease
for any reason to constitute at least a majority
thereof, unless the election, or the nomination for
election by the Company's stockholders, of each
director of the Company first elected during such
period was approved by a unanimous vote of the
directors of the Company then still in office who
were directors of the Company at the beginning of any
such period;
(D) the Company and its subsidiaries, in any
transaction or series of related transactions, sells
or otherwise transfers business operations that
generated two thirds or more of the consolidated
revenues (determined on the basis of the Company's
four most recently completed fiscal quarters) of the
Company and its subsidiaries immediately prior
thereto; or
(E) any other transaction or series of
related transactions occur that have substantially
the effect of the transactions specified in any of
the preceding clauses in this paragraph (i); or
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(ii) after the Company has a class of securities
registered under Section 12 of the Exchange Act:
(A) any person, as that term is used in
Section 13(d) and Section 14(d)(2) of the Exchange
Act, becomes, is discovered to be, or files a report
on Schedule 13D or 14D-1 (or any successor schedule,
form or report) disclosing that such person is a
beneficial owner (as defined in Rule 13d-3 under the
Exchange Act or any successor rule or regulation),
directly or indirectly, of securities of the Company
representing 20% or more of the total voting power of
the Company's then outstanding Voting Securities
(unless such person becomes such a beneficial owner
in connection with the initial public offering of the
Company);
(B) individuals who, as of the consummation
date of the Company's initial public offering,
constitute the Board of Directors of the Company
cease for any reason to constitute at least a
majority of the Board of Directors of the Company,
unless any such change is approved by a unanimous
vote of the members of the Board of Directors of the
Company in office immediately prior to such
cessation;
(C) the Company, or any material subsidiary
of the Company, is merged, consolidated or
reorganized into or with an Acquiring Person or
securities of the Company are exchanged for
securities of an Acquiring Person, and immediately
after such merger, consolidation, reorganization or
exchange less than a majority of the combined voting
power of the then outstanding securities of the
Acquiring Person immediately after such transaction
are held, directly or indirectly, in the aggregate by
the holders of Voting Securities immediately prior to
such transaction;
(D) the Company, or any material subsidiary
of the Company, in any transaction or series of
related transactions, sells or otherwise transfers
all or substantially all of its assets to an
Acquiring Person, and less than a majority of the
combined voting power of the then outstanding
securities of the Acquiring Person immediately after
such sale or transfer is held, directly or
indirectly, in the aggregate by the holders of Voting
Securities immediately prior to such sale or
transfer;
(E) the Company and its subsidiaries, in any
transaction or series of related transactions, sells
or otherwise transfers business operations that
generated two thirds or more of the
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consolidated revenues (determined on the basis of the
Company's four most recently completed fiscal
quarters) of the Company and its subsidiaries
immediately prior thereto;
(F) the Company files a report or proxy
statement with the Securities and Exchange Commission
pursuant to the Exchange Act disclosing that a change
in control of the Company has or may have occurred or
will or may occur in the future pursuant to any then
existing contract or transaction; or
(G) any other transaction or series of
related transactions occur that have substantially
the effect of the transactions specified in any of
the preceding clauses in this paragraph (ii).
Notwithstanding the provisions of Section 9(a)(ii)(A) or
9(a)(ii)(D), unless otherwise determined in a specific case by majority vote of
the Board of Directors of the Company, a Change of Control shall not be deemed
to have occurred for purposes of this Agreement solely because (i) the Company,
(ii) an entity in which the Company directly or indirectly beneficially owns 50%
or more of the voting securities or (iii) any Company sponsored employee stock
ownership plan, or any other employee benefit plan of the Company, either files
or becomes obligated to file a report or a proxy statement under or in response
to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor
schedule, form or report or item therein) under the Exchange Act, disclosing
beneficial ownership by it of shares of stock of the Company, or because the
Company reports that a Change in Control of the Company has or may have occurred
or will or may occur in the future by reason of such beneficial ownership.
(b) Claim: any threatened, pending or completed action, suit,
proceeding or alternative dispute resolution mechanism, or any inquiry, hearing
or investigation whether conducted by the Company or any other party, whether
civil, criminal, administrative, investigative or other.
(c) Expenses: include attorneys' fees and all other costs,
fees, expenses and obligations of any nature whatsoever paid or incurred in
connection with investigating, defending, being a witness in or participating in
(including appeal), or preparing to defend, be a witness in or participate in
any Claim relating to any Indemnifiable Event.
(d) Indemnifiable Event: any event or occurrence (whether
before or after the date hereof) related to the fact that Indemnitee is or was a
director, officer, employee, consultant, agent or fiduciary of or to the
Company, or is or was serving at the request of the Board of Directors as a
director, officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, or
by reason of anything done or not done by Indemnitee in any such capacity.
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(e) Reviewing Party: (i) the Company's Board of Directors
(provided that a majority of directors are not parties to the particular Claim
for which Indemnitee is seeking indemnification) or (ii) any other person or
body appointed by the Company's Board of Directors, who is not a party to the
particular Claim for which Indemnitee is seeking indemnification, or (iii) if
there has been a Change in Control, the special independent counsel referred to
in Section 2 hereof.
(f) Voting Securities: any securities of the Company which
vote generally in the election of directors.
SECTION 10. AMENDMENTS, TERMINATION AND WAIVER. No
supplement, modification, amendment or termination of this Agreement shall be
binding unless executed in writing by both of the 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.
SECTION 11. SUBROGATION. In the event of payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee, who shall execute all papers required
and shall do everything that may be necessary to secure such rights, including
the execution of such documents necessary to enable the Company effectively to
bring suit to enforce such rights.
SECTION 12. NO DUPLICATION OF PAYMENTS. The Company shall
not be liable under this Agreement to make any payment in connection with any
Claim made against Indemnitee to the extent Indemnitee has otherwise actually
received payment (under insurance policy, Certificate of Incorporation or
otherwise) of the amounts otherwise indemnifiable hereunder.
SECTION 13. BINDING EFFECT, ETC. 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 and/or assets of the Company, spouse, heirs,
and personal and legal representatives. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as a director or officer (or
in one of the capacities enumerated in Section 9(d) hereof) of the Company or of
any other enterprise at the Board of Directors' request.
SECTION 14. 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.
SECTION 15. APPLICABLE LAW AND CONSENT TO JURISDICTION. This
Agreement and the legal relations among the parties shall be governed by, and
construed and enforced in
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accordance with, the laws of the State of Delaware, without regard to its
conflict of laws rules. The Company and Indemnitee hereby irrevocably and
unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the Delaware Court and
not in any other state or federal court in the United States of America or any
court in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action or proceeding arising out of or
in connection with this Agreement, (iii) appoint, to the extent such party is
not a resident of the State of Delaware, irrevocably RL&F Service Corp., One
Xxxxxx Square, 10th Floor, 10th and King Streets, Wilmington, Delaware 19801 as
its agent in the State of Delaware as such party's agent for acceptance of legal
process in connection with any such action or proceeding against such party with
the same legal force and validity as if served upon such party personally within
the State of Delaware, (iv) waive any objection to the laying of venue of any
such action or proceeding in the Delaware Court, and (v) waive, and agree not to
plead or to make, any claim that any such action or proceeding brought in the
Delaware Court has been brought in an improper or inconvenient forum.
SECTION 16. IDENTICAL COUNTERPARTS. This Agreement may be
executed in one or more counterparts, each of which shall for all purposes be
deemed to be an original but all of which together shall constitute one and the
same Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.
Executed this ______ day of _____________, 200__.
HPL Technologies, Inc.
By:
-----------------------------------
Xxxxx Xxxxxxxx
President
By:
-----------------------------------
Indemnitee
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