EXHIBIT 10.19
FORM OF INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of the __th day of _______, 200_, by and
between Acacia Research Corporation, a Delaware corporation (the "Company"), and
__________, a [Director and Officer] of the Company (the "Indemnitee"), with
reference to the following facts:
R E C I T A L S :
The Indemnitee is currently serving as a [Director and Officer] of the
Company and the Company wishes the Indemnitee to continue in such capacity. The
Indemnitee is willing, under certain circumstances, to continue serving as a
[Director and Officer] of the Company.
Section 145 of the General Corporation Law of the State of Delaware,
under which Law the Company is organized, empowers corporations to indemnify a
person serving as a director, officer, employee or agent of the corporation and
a person who serves at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust, or
other enterprise, and said Section 145 specifies that the indemnification set
forth in said Section 145 shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any By-Law, agreement,
vote of stockholders or disinterested directors or otherwise.
In order to induce the Indemnitee to continue to serve as a [Director
and Officer] of the Company and in consideration of his continued service, the
Company has determined and agreed to enter into this agreement with the
Indemnitee.
NOW, THEREFORE, in consideration of Indemnitee's continued service as a
[Director and Officer] of the Company, the parties hereto agree as follows:
INDEMNITY. The Company will indemnify the Indemnitee, his executors,
administrators or assigns, for any Damages or Expenses (as defined below) which
the Indemnitee is or becomes legally obligated to pay in connection with any
Proceeding. As used in this Agreement the term "Proceeding" shall include any
threatened, pending or completed claim, action, suit or proceeding, whether
brought by or in the right of the Company or otherwise and whether of a civil,
criminal, administrative or investigative nature, in which the Indemnitee may be
or may have been involved as a party or otherwise, by reason of the fact that
Indemnitee is or was a director or officer of the Company, by reason of any
actual or alleged error or misstatement or misleading statement or omission made
or suffered by the Indemnitee, by reason of any action taken by him or of any
inaction on his part while acting as such director or officer, or by reason of
the fact that he was serving at the request of the Company as a director,
trustee, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise; provided, that in each such case Indemnitee
acted in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Company, and, in the case of a criminal
proceeding, in addition had no reasonable cause to believe that his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that Indemnitee did not act in good
faith and in a manner which he 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 reasonable cause to believe that his conduct was unlawful. As
used in this Agreement, the term "other enterprise" shall include (without
limitation) employee benefit plans and administrative committees thereof, and
the term "fines" shall include (without limitation) any excise tax assessed with
respect to any employee benefit plan. References to "serving at the request of
the Corporation" shall include any service as a director, officer, employee or
agent of the Corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries, and if Indemnitee acted in good faith and in
a manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan he shall be deemed to have acted in a
manner "not opposed to the best interests of the Company" as referred to above.
EXPENSES. As used in this Agreement, the term "Expenses" shall include,
without limitation, damages, judgments, fines, penalties, settlements and costs,
attorneys' fees and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement and the term "Damages" shall include damages, judgments,
fines, penalties and settlements.
ENFORCEMENT. If a claim or request under this Agreement is not paid by
the Company, or on its behalf, within thirty days after a written claim or
request has been received by the Company, the Indemnitee may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim or request and if successful in whole or in part, the Indemnitee shall be
entitled to be paid also the Expenses of prosecuting such suit. The Company
shall have the right to recoup from the Indemnitee the amount of any item or
items of Expenses (other than Damages) theretofore paid by the Company pursuant
to this Agreement, to the extent such Expenses are not reasonable in nature or
amount; provided, however, that the Company shall have the burden of proving
such Expenses to be unreasonable. The burden of proving that the Indemnitee is
not entitled to indemnification for any other reason shall be upon the Company.
SUBROGATION. In the event that the Company pays any Expenses under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of the 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.
EXCLUSIONS. Notwithstanding the foregoing, the Company shall not be
liable under this Agreement to pay any Expenses in connection with any
Proceeding:
to the extent that payment of such Expenses is actually made
to the Indemnitee under a valid, enforceable and collectible insurance policy;
to the extent that the Indemnitee is indemnified and actually
paid otherwise than pursuant to this Agreement;
in connection with a judicial action by or in the right of the
Company, 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 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 indemnity for such Expenses as
such court shall deem proper;
if it is proved by final judgment in a court of law or other
final adjudication that the Indemnitee had in fact gained any personal profit or
advantage to which he was not legally entitled;
for a disgorgement of profits made from the purchase and sale
by the Indemnitee of securities pursuant to Section 16(b) of the Securities
Exchange Act of 1934 and amendments thereto or similar provisions of any state
statutory law or common law;
brought about or contributed to by the dishonesty of the
Indemnitee seeking payment hereunder; however, notwithstanding the foregoing,
the Indemnitee shall be protected under this Agreement as to any Proceeding
brought against him by reason of any alleged dishonesty on his part, unless a
judgment or other final adjudication thereof adverse to the Indemnitee shall
establish that he committed (i) acts of active and deliberate dishonesty, (ii)
with actual dishonest purpose and intent and (iii) such acts were material to
the cause of action so adjudicated; or
for any Damages which the Company is prohibited by applicable
law from paying as indemnity.
INDEMNIFICATION OF EXPENSES OF SUCCESSFUL PARTY. Notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding or in defense
of any claim, issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against any and all Expenses actually and
reasonably incurred in connection therewith.
PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of Expenses, but not, however, for the total amount thereof, the Company
shall nevertheless indemnify the Indemnitee for the portion of such Expenses to
which the Indemnitee is entitled.
ADVANCE OF EXPENSES. Expenses incurred by the Indemnitee in connection
with any Proceeding, except the amount of any Damages, shall be paid by the
Company in advance of the final disposition thereof upon request of the
Indemnitee that the Company pay such Expenses. The Indemnitee hereby undertakes
to repay to the Company the amount of any Expenses theretofore paid by the
Company to the extent that it is ultimately determined that such Expenses were
not reasonable or that the Indemnitee is not entitled to indemnification
therefor.
APPROVAL OF PAYMENT OF DAMAGES. No payment of Damages for which
indemnity shall be sought under this Agreement, other than those in respect of
judgments and verdicts actually rendered, shall be incurred without the prior
consent of the Company, which consent shall not be unreasonably withheld.
NOTICE OF CLAIM. The Indemnitee, as a condition precedent to his right
to be indemnified under this Agreement, shall give to the Company notice in
writing as soon as reasonably practicable of any Proceeding against him for
which indemnity will or could be sought under this Agreement. Notice to the
Company shall be given at its principal office and shall be directed to the
Corporate Secretary (or such other address as the Company shall designate in
writing to the Indemnitee); notice shall be deemed given on the earlier of the
date of receipt or the seventh day after it is sent by properly addressed,
prepaid registered or certified mail, return receipt requested. In addition, the
Indemnitee shall give the Company such information and cooperation as it may
reasonably require and as shall be within the Indemnitee's power.
COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one instrument.
INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. Nothing herein shall be deemed
to diminish or otherwise restrict the Indemnitee's right to indemnification
under any provision of the Certificate of Incorporation or By-Laws of the
Company and amendments thereto or under law.
GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with Delaware law.
SAVING CLAUSE. Wherever there is conflict between any provision of this
Agreement and any applicable present or future statute, law or regulation
contrary to which the Company and the Indemnitee have no legal right to
contract, the latter shall prevail, but in such event the affected provisions of
this Agreement shall be curtailed and restricted only to the extent necessary to
bring them within applicable legal requirements.
COVERAGE. The provisions of this Agreement shall apply with respect to
the Indemnitee's service as a [Director and Officer] of the Company prior to the
date of this Agreement and with respect to all periods of such service after the
date of this Agreement, even though the Indemnitee may have ceased to be a
[Director and/or Officer] of the Company and shall inure to the benefit of the
heirs, executors and administrators of Indemnitee.
SURVIVAL OF AGREEMENT. For purposes of this Agreement, any reference to
the "Company" shall include, in addition to the resulting or surviving
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Agreement with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
ACACIA RESEARCH CORPORATION
A DELAWARE CORPORATION
By:
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Indemnitee
