1
Exhibit 10.11
AGREEMENT
This Agreement is made as of ____________ __, 1997 by and between
UBICS, Inc., a Delaware corporation (the "Corporation"), and the undersigned
director of the Corporation (the "Indemnitee");
WHEREAS, Indemnitee is a member of the Corporation's Board of
Directors and in that capacity is performing a valuable service for the
Corporation and its stockholders and the Corporation desires to retain the
continued service of Indemnitee in that capacity; and
WHEREAS, pursuant to Article VII of the Corporation's Amended and
Restated Certificate of Incorporation ("Certificate of Incorporation") and
Article III, Section 10 of the Corporation's Amended Bylaws ("Bylaws"),
Indemnitee is entitled to be indemnified by the Corporation to the full extent
permitted by law or a court, whichever is greater, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement incurred by
him in connection with any threatened, pending, or completed action, suit or
proceeding to which the Indemnitee was, is or is threatened to be made a party
by reason of the fact that he is or was a director, officer, incorporator,
employee, or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, incorporator, employee, or agent of
another corporation, partnership, joint venture, trust or other enterprise (the
"Indemnification Provisions"); and
WHEREAS, consistent with the Indemnification Provisions of the
Corporation's Certificate of Incorporation and Bylaws, and as permitted by
Section 145(e) of the Delaware General Corporation Law, as amended ("DGCL"),
and in order to retain the continued service of the Indemnitee as a director of
the Corporation, the Corporation desires to agree to pay the expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by Indemnitee in defending any civil,
criminal, administrative or investigative action, suit or proceeding for which
he may be indemnified pursuant to the Indemnification Provisions in advance of
the final disposition of such action, suit or proceeding; and
NOW, THEREFORE, in consideration of Indemnitee's continued service as
a director after the date of this Agreement, and intending to be legally bound,
the parties agree as follows:
1. Maintenance of Insurance.
(a) Subject only to the provisions of Subsection 1(b)
hereof, so long as the Indemnitee shall continue to serve as a director,
officer, incorporator, employee or agent of the Corporation (or shall
continue, at the request of the Corporation, to serve as a director,
officer, incorporator, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and thereafter so
long as the Indemnitee shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative by reason of the fact
that the Indemnitee was a director of the
2
Corporation or served in any of the above-described capacities, the Corporation
will purchase and maintain in effect for the benefit of the Indemnitee, one or
more valid, binding and enforceable policies of directors' and officers'
insurance ("D&O Insurance").
(b) The Corporation shall not be required to maintain D&O
Insurance in effect if such insurance is not reasonably available or if, in the
reasonable business judgment of the then directors of the Corporation, either
(i) the premium cost for such insurance is substantially disproportionate to the
amount of coverage or (ii) the coverage provided by such insurance is so limited
by exclusions that there is insufficient benefit from such insurance.
(c) In the event the Corporation does not purchase and
maintain in effect D&O Insurance pursuant to the provisions of Subsection 1(b)
hereof, the Corporation shall hold harmless and indemnify the Indemnitee to the
full extent of the coverage which would otherwise have been provided for the
benefit of the Indemnitee pursuant to such D&O Insurance.
2. Indemnification.
Notwithstanding Subsection 1(a) hereof, the Corporation shall
indemnify the Indemnitee to the fullest extent permitted by law and the
Certificate of Incorporation, whichever is greater, in effect on the date hereof
or as such laws or the Certificate of Incorporation may from time to time be
amended. The right to indemnification conferred in the Certificate of
Incorporation and the Bylaws shall be presumed to have been relied on by
Indemnitee in serving or continuing to serve the Corporation (or if the
Indemnitee shall continue, at the request of the Corporation, to serve as a
director, officer, incorporator, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and shall be enforceable
as a contract right.
3. Advancement of Expenses.
(a) The Corporation shall pay the expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred or estimated to be incurred by Indemnitee in connection with any civil,
criminal, administrative or investigative action, suit or proceeding for which
he would be entitled to be indemnified pursuant to the Indemnification
Provisions, the D&O Insurance, the DGCL or otherwise (in any capacity) in
advance of the final disposition thereof promptly after receipt by the
Corporation of a request therefor stating in reasonable detail the expenses
incurred or to be incurred by him. No security shall be required in connection
with any advancement of expenses to Indemnitee hereunder and such a request
shall be accepted without reference to the Indemnitee's ability to make a
repayment.
(b) If a claim under Subsection 3(a) hereof is not paid in full
by the Corporation within thirty (30) days after a written claim has been
received by the Corporation,
- 2 -
3
the Indemnitee may, at any time thereafter, bring suit against the Corporation
to recover the unpaid amount of the claim. The burden of proving that
advancement of expenses is not appropriate shall be on the Corporation. The
Corporation shall pay such fees and expenses in advance of the final disposition
of such action upon receipt of a written request therefor.
4. Undertaking to Repay Expenses.
(a) In the event it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified for the expenses paid by the
Corporation pursuant to the provisions of this Agreement or otherwise or was not
entitled to be fully indemnified, the Indemnitee shall repay to the Corporation
such amount of the expenses or the appropriate portion thereof, so paid or
advanced. This provision shall constitute the undertaking contemplated by
Section 145(e) of the DGCL and no further assurances shall be required of
Indemnitee before any expenses are advanced.
(b) Notwithstanding Subsection 4(a) hereof, the Corporation's
Board of Directors shall be deemed to have determined that the Indemnitee is
entitled to indemnification unless, within twenty (20) days, after submission of
Indemnitee's request pursuant to Subsection 3(a) hereof, the Corporation's Board
of Directors shall have notified the Indemnitee in writing that it has
determined, by a majority vote of directors, based on clear and convincing
evidence, that the Indemnitee is not entitled to indemnification under this
Agreement. The evidence shall be disclosed to the Indemnitee in such notice
which shall be sworn to by all directors who participated in the determination
and voted to deny indemnification.
5. Notice.
Any notice to the Corporation shall be directed to UBICS, Inc.,
100 Sainte Claire Plaza, 0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: President (or such other address as the Corporation shall designate
in writing to the Indemnitee).
6. Indemnification Under this Agreement Not Exclusive.
The rights provided to Indemnitee by this Agreement shall not be
exclusive of any other rights to which Indemnitee may be entitled under the
Corporation's Certificate of Incorporation, its Bylaws, any other agreement, any
vote of stockholders or directors, or otherwise, as to action in any capacity.
7. Miscellaneous.
(a) This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
- 3 -
4
(b) This Agreement shall be binding upon Indemnitee and upon the
Corporation, its successors and assigns, and shall inure to the benefit of
Indemnitee, his heirs, executors, personal representatives and assigns and to
the benefit of the Corporation, its successors and assigns. If the Corporation
shall merge or consolidate with another corporation or shall sell, lease,
transfer or otherwise dispose of all or substantially all of its assets to one
or more persons or groups (in one transaction or series of transactions), (i)
the Corporation shall cause the successor in the merger or consolidation or the
transferee of the assets that is receiving the greatest portion of the assets or
earning power transferred pursuant to the transfer of the assets, by agreement
in form and substance satisfactory to the Indemnitee, to expressly assume all of
the Corporation's obligations under and agree to perform this Agreement, and
(ii) the term "Corporation" whenever used in this Agreement shall mean and
include any such successor or transferee.
(c) No amendment, modification, termination or cancellation of
this Agreement shall be effective unless in writing signed by both of the
parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
UBICS, INC.
By:
--------------------------------
Name:
Title:
, Indemnitee
-------------------
--------------------------------
- 4 -
