Indemnification Agreement
This Agreement, made and entered into this ---- day of
----------, 2002 ("Agreement"), by and between Intergraph
Corporation, a Delaware corporation ("Company"), and
-------------------- ("Indemnitee"):
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 indemnification or similar arrangements protecting
against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of the
Company; and
Whereas, directors, officers and other persons in service to
corporations or business entities are being increasingly
subjected to expensive and time-consuming litigation relating to,
among other things, matters that traditionally would have been
asserted only against corporations and other entities; and
Whereas, the prohibitive cost and limited coverages
associated with such insurance and the uncertainties relating to
indemnification have increased the difficulty of attracting and
retaining qualified persons to serve as corporate directors; and
Whereas, the Board of Directors of the Company (the "Board")
has determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of
the Company's stockholders and that the Company should act to
assure such persons that there will be increased certainty of
indemnity protection in the future; and
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 qualified individuals will
agree to serve or continue to serve the Company free from undue
concern that they will not be so indemnified; and
Whereas, this Agreement is a supplement to and in
furtherance of the Certificate of Incorporation, as amended
and/or restated from time to time (the "Certificate of
Incorporation"), and Restated Bylaws of the Company and any
resolutions adopted pursuant thereto, and shall not be deemed a
substitute therefor, nor to diminish or abrogate any rights of
indemnification afforded thereunder; and
Whereas, each of Section 145 of the General Corporation Law
of the State of Delaware, the Company's Certificate of
Incorporation and the Company's Restated Bylaws is non-exclusive,
and therefore contemplates that contracts may be entered into
with respect to indemnification of directors, officers and
employees; and
Whereas, Indemnitee is willing to serve, continue to serve
or to take on additional service for or on behalf of the Company
on the condition that he be so indemnified;
Now, Therefore, in consideration of the premises and the
covenants contained herein, the Company and Indemnitee do hereby
covenant and agree as follows:
Section 1. Services by Indemnitee. Indemnitee agrees
to serve as a director and/or executive officer of the Company.
Indemnitee may at any time and for any reason resign from such
position (subject to any other contractual obligation or any
obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue
to permit Indemnitee to serve in such position. This Agreement
shall not be deemed an employment contract between the Company
(or any of its subsidiaries) and Indemnitee. Indemnitee
specifically acknowledges that Indemnitee's employment with the
Company (or any of its subsidiaries), if any, is at will, and
the Indemnitee may be discharged at any time for any reason, with
or without cause, except as may be otherwise provided in any
written employment contract between Indemnitee and the Company
(or any of its subsidiaries), other applicable formal severance
policies duly adopted by the Board, or, with respect to service
as a director of the Company, by the Company's Certificate
of Incorporation, the Company's Restated Bylaws, and the General
Corporation Law of the State of Delaware. The foregoing
notwithstanding, this Agreement shall continue in force after
Indemnitee has ceased to serve as a director and/or executive
officer of the Company in accordance with Section 13.
Section 2. Indemnification - General. The Company
shall indemnify, and advance Expenses (as hereinafter defined)
to, Indemnitee (a) as provided in this Agreement and (b) (subject
to the provisions of this Agreement) to the fullest extent
permitted by applicable law in effect on the date hereof and as
amended from time to time. The rights of Indemnitee provided under
the preceding sentence shall include, but shall not be limited to,
the rights set forth in the other Sections of this Agreement.
Section 3. Proceedings Other Than Proceedings by or
in the Right of the Company. Indemnitee shall be entitled to the
rights of indemnification provided in this Section 3 if, by reason
of his Corporate Status (as hereinafter defined), he is, or is
threatened to be made, a party to or a participant (as a witness
or otherwise) in any threatened, pending, or completed Proceeding
(as hereinafter defined), other than a Proceeding by or in the
right of the Company. Pursuant to this Section 3, Indemnitee
shall be indemnified against all Expenses, judgments, penalties,
fines and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with
or in respect of such Expenses, judgments, penalties, fines and
amounts paid in settlement) actually and reasonably incurred by
him or on his behalf in connection with such Proceeding, or any
claim, issue or matter therein, if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was
unlawful.
Section 4. Proceedings by or in the Right of the
Company. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 4 if, by reason of his Corporate Status,
he is, or is threatened to be made, a party to or a participant
(as a witness or otherwise) in any threatened, pending or
completed Proceeding brought by or in the right of the Company to
procure a judgment in its favor. Pursuant to this Section,
Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection with
such Proceeding, or any claim, issue or matter therein, if he
acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company; provided,
however, that, if applicable law so provides, no indemnification
against such Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall
have been adjudged to be liable to the Company unless and to the
extent that the Court of Chancery of the State of Delaware, or
the court in which such Proceeding shall have been brought or is
pending, shall determine that such indemnification may be made.
Section 5. Indemnification for Expenses of a Party Who
is Wholly or Partly Successful. Notwithstanding any other provision
of this Agreement, to the extent that Indemnitee is, by reason of
his Corporate Status, a party to (or a participant in) and is
successful, on the merits or otherwise, in any Proceeding or in
defense of any claim, issue or matter therein, in whole or in
part, he shall be indemnified to the maximum extent permitted by
law against all Expenses actually and reasonably incurred by him
or on his behalf in connection therewith. If Indemnitee is not
wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf in connection with each successfully
resolved claim, issue or matter. If the Indemnitee is not wholly
successful in such Proceeding, the Company also shall indemnify
Indemnitee against all Expenses reasonably incurred in connection
with a claim, issue or matter related to any claim, issue or
matter on which the Indemnitee was successful. For purposes of
this Section and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or
without prejudice, shall be deemed to be a successful result as
to such claim, issue or matter.
Section 6. Indemnification for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his Corporate Status, a
witness in any Proceeding to which Indemnitee is not a party, he
shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith.
Section 7. Advancement of Expenses. Notwithstanding
any provision of this Agreement to the contrary, the Company shall
advance all reasonable Expenses incurred by or on behalf of
Indemnitee in connection with any Proceeding in which Indemnitee
is involved by reason of Indemnitee's Corporate Status within ten
days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition of
such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by Indemnitee and shall include or
be preceded or accompanied by an undertaking by or on behalf of
Indemnitee to repay any Expenses advanced if it ultimately shall
be determined that Indemnitee is not entitled to be indemnified
against such Expenses. Advances shall be made without regard to
Indemnitee's ability to repay the Expenses and without regard to
Indemnitee's ultimate entitlement to indemnification under the
provisions of this Agreement. Any advances and undertakings to
repay pursuant to this Section 7 shall be unsecured and interest
free.
Section 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
therein or therewith such documentation and information as 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 such a request for indemnification, advise the
Board in writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for
indemnification pursuant to the first sentence of Section 8(a)
hereof, a determination, if required by applicable law, with
respect to Indemnitee's entitlement thereto shall be made in the
specific case: (i) if a Change in Control (as hereinafter defined)
shall have occurred, by Independent Counsel (as hereinafter defined)
in a written opinion to the Board of Directors, a copy of which
shall be delivered to Indemnitee; or (ii) if a Change in Control
shall not have occurred, (A) by a majority vote of the
Disinterested Directors (as hereinafter defined), even though
less than a quorum of the Board, or (B) if there are no such
Disinterested Directors or, if such Disinterested Directors so
direct, by Independent Counsel in a written opinion to the Board,
a copy of which shall be delivered to Indemnitee or (C) if so
directed by the Board, by the stockholders of the Company; and,
if it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten
(10) days after such determination. Indemnitee shall cooperate
with the person, persons or entity making such determination with
respect to Indemnitee's entitlement to indemnification, including
providing to such person, persons or entity upon reasonable
advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is
reasonably available to Indemnitee and reasonably necessary to
such determination. Any costs or expenses (including attorneys'
fees and disbursements) incurred by Indemnitee in so cooperating
with the person, persons or entity making such determination
shall be borne by the Company (irrespective of the determination
as to Indemnitee's entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
(c) In the event the determination of entitlement
to indemnification is to be made by Independent Counsel pursuant to
Section 8(b) hereof, the Independent Counsel shall be selected as
provided in this Section 8(c). If a Change in Control shall not
have occurred, the Independent Counsel shall be selected by the
Board of Directors, and the Company shall give written notice to
Indemnitee advising him of the identity of the Independent
Counsel so selected. If a Change in Control shall have occurred,
the Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board
of Directors, in which event the preceding sentence shall apply),
and Indemnitee shall give written notice to the Company advising
it of the identity of the Independent Counsel so selected. In
either event, Indemnitee or the Company, as the case may be, may,
within 10 days after such written notice of selection shall have
been given, deliver to the Company or to Indemnitee, as the case
may be, a written objection to such selection; provided, however,
that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in Section 18 of this Agreement,
and the objection shall set forth with particularity the factual
basis of such assertion. Absent a proper and timely objection,
the person so selected shall act as Independent Counsel. If such
written objection is so made and substantiated, the Independent
Counsel so selected may not serve as Independent Counsel unless
and until such objection is withdrawn or a court has determined
that such objection is without merit. If, within 20 days after
submission by Indemnitee of a written request for indemnification
pursuant to Section 8(a) hereof, no Independent Counsel shall
have been selected and not objected to, either the Company or
Indemnitee may petition the Court of Chancery of the State of
Delaware or other court of competent jurisdiction for resolution
of any objection which shall have been made by the Company or
Indemnitee to the other's selection of Independent Counsel and/or
for the appointment as Independent Counsel of a person selected
by the Court or by such other person as the Court shall
designate, and the person with respect to whom all objections are
so resolved or the person so appointed shall act as Independent
Counsel under Section 8(b) hereof. Upon the due commencement of
any judicial proceeding or arbitration pursuant to Section 10(a)
of this Agreement, Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject
to the applicable standards of professional conduct then
prevailing).
(d) The Company shall not be required to obtain
the consent of the Indemnitee to the settlement of any Proceeding
which the Company has undertaken to defend if the Company assumes
full and sole responsibility for such settlement and the settlement
grants the Indemnitee a complete and unqualified release in respect
of the potential liability; provided, however, that the Company
shall not settle any Proceeding in any manner that would require
admission of personal wrongdoing by Indemnitee, or impose any
penalty or limitation on Indemnitee, without Indemnitee's written
consent. The Company shall not be liable for any amount paid by
the Indemnitee in settlement of any Proceeding that is not
defended by the Company, unless the Company has consented to such
settlement, which consent shall not be unreasonably withheld or
delayed.
Section 9. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to
entitlement to indemnification hereunder, the person or persons or
entity making such determination shall presume that Indemnitee is
entitled to indemnification under this Agreement if Indemnitee has
submitted a request for indemnification in accordance with Section
8(a) of this Agreement, and the Company shall have the burden of
proof to overcome that presumption in connection with the making
by any person, persons or entity of any determination contrary to
that presumption. Neither the failure of the Company (including by
its directors or independent legal counsel) to have made
a determination prior to the commencement of any action pursuant to
this Agreement that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard
of conduct, nor an actual determination by the Company (including
by its directors or independent legal counsel) that Indemnitee
has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that Indemnitee has
not met the applicable standard of conduct.
(b) If the person, persons or entity empowered or
selected under Section 8 of this Agreement to determine whether
Indemnitee is entitled to indemnification shall not have made a
determination within sixty (60) days after receipt by the Company
of the request therefor, the requisite determination of entitlement
to indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of
a material fact necessary to make Indemnitee's statement not
materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification
under applicable law; provided, however, that such 60-day period
may be extended for a reasonable time, not to exceed an
additional thirty (30) days, if the person, persons or entity
making the determination with respect to entitlement to
indemnification in good faith requires such additional time for
the obtaining or evaluating of documentation and/or information
relating thereto; and provided, further, that the foregoing
provisions of this Section 9(b) shall not apply if the
determination of entitlement to indemnification is to be made by
the stockholders pursuant to Section 8(b) of this Agreement and
if (A) within fifteen (15) days after receipt by the Company of
the request for such determination the Board of Directors has
resolved to submit such determination to the stockholders for
their consideration at an annual meeting thereof to be held
within seventy five (75) days after such receipt and such
determination is made thereafter, or (B) a special meeting of
stockholders is called within fifteen (15) days after such
receipt for the purpose of making such determination, such
meeting is held for such purpose within sixty (60) days after
having been so called and such determination is made thereat.
(c) The termination of any Proceeding or of any
claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Agreement)
of itself adversely affect the right of Indemnitee to
indemnification or 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 or,
with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
(d) Reliance as Safe Harbor. For purposes of any
determination of Good Faith, Indemnitee shall be deemed to have acted
in Good Faith if Indemnitee's action is based on the records or
books of account of the Enterprise, including financial statements,
or on information supplied to Indemnitee by the officers of the
Enterprise in the course of their duties, or on the advice of
legal counsel for the Enterprise or on information or records
given or reports made to the Enterprise by an independent
certified public accountant or by an appraiser or other expert
selected with the reasonable care by the Enterprise. The
provisions of this Section 9(d) shall not be deemed to be
exclusive or to limit in any way the other circumstances in which
the Indemnitee may be deemed to have met the applicable standard
of conduct set forth in this Agreement.
(e) Actions of Others. The knowledge and/or actions,
or failure to act, of any director, officer, agent or employee of the
Enterprise shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.
Section 10. Remedies of Indemnitee.
(a) In the event that (i) a determination is made
pursuant to Section 8 of this Agreement that Indemnitee is not
entitled to indemnification under this Agreement, (ii) advancement
of Expenses is not timely made pursuant to Section 7 of this
Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 8(b) of
this Agreement within 90 days after receipt by the Company of the
request for indemnification, (iv) payment of indemnification is
not made pursuant to Section 5, Section 6, the last sentence of
Section 8(b), or the last sentence of Section 18(h) of this
Agreement within ten (10) days after receipt by the Company of a
written request therefor, or (v) payment of indemnification
pursuant to Section 3 or Section 4 of this Agreement is not made
within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification, Indemnitee shall be
entitled to an adjudication by the Court of Chancery of the State
of Delaware of his entitlement to such indemnification or
advancement of Expenses. Alternatively, Indemnitee, at his
option, may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the Commercial Arbitration Rules of
the American Arbitration Association. Indemnitee shall commence
such proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which
Indemnitee first has the right to commence such proceeding
pursuant to this Section 10(a); provided, however, that the
foregoing clause shall not apply in respect of a proceeding
brought by Indemnitee to enforce his rights under Section 5 of
this Agreement. The Company shall not oppose Indemnitee's right
to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have
been made pursuant to Section 8(b) of this Agreement that Indemnitee
is not entitled to indemnification, any judicial proceeding
or arbitration commenced pursuant to this Section 10 shall
be conducted in all respects as a de novo trial, or arbitration,
on the merits and Indemnitee shall not be prejudiced by reason
of that adverse determination. In any judicial proceeding
or arbitration commenced pursuant to this Section 10, Indemnitee
shall be presumed to be entitled to indemnification under this
Agreement and the Company shall have the burden of proving
Indemnitee is not entitled to indemnification or advancement of
Expenses, as the case may be, and the Company may not refer to or
introduce into evidence any determination pursuant to Section
8(b) of this Agreement adverse to Indemnitee for any purpose. If
Indemnitee commences a judicial proceeding or arbitration
pursuant to this Section 10, Indemnitee shall not be required to
reimburse the Company for any advances pursuant to Section 7
until a final determination is made with respect to Indemnitee's
entitlement to indemnification (as to which all rights of appeal
have been exhausted or lapsed).
(c) If a determination shall have been made pursuant
to Section 8(b) of this Agreement that Indemnitee is entitled to
indemnification, the Company shall be bound by such determination
in any judicial proceeding or arbitration commenced pursuant to
this Section 10, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to
make Indemnitee's statement not materially misleading, in
connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable law.
(d) The Company shall indemnify and hold harmless
Indemnitee to the fullest extent permitted by law against all Expenses
and, if requested by Indemnitee, shall (within ten (10) days after
the Company's receipt of such written request) advance such Expenses
to Indemnitee, which are incurred by Indemnitee in connection
with any judicial proceeding or arbitration brought by Indemnitee
(i) to enforce his rights under, or to recover damages for breach
of, this Agreement or any other indemnification, advancement or
contribution agreement or provision of the Charter or the
Company's Bylaws now or hereafter in effect; or (ii) for recovery
or advances under any insurance policy maintained by any person
for the benefit of Indemnitee, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance, contribution or insurance recovery, as the case may be.
(e) The Company shall be precluded from asserting
in any judicial proceeding or arbitration commenced pursuant to this
Section 10 that the procedures and presumptions of this Agreement
are not valid, binding and enforceable and shall stipulate in any
such court or before any such arbitrator that the Company is
bound by all the provisions of this Agreement.
(f) Interest shall be paid by the Company to
Indemnitee at the legal rate under Delaware law for amounts which
the Company indemnifies or is obliged to indemnify for the period
commencing with the date on which Indemnitee requests indemnification,
contribution, reimbursement or advancement of any Expenses and
ending with the date on which such payment is made to Indemnitee
by the Company.
Section 11. Security. Notwithstanding anything herein
to the contrary, to the extent requested by the Indemnitee and
approved by the Board, the Company may at any time and from time to
time provide security to the Indemnitee for the Company's obligations
hereunder through an irrevocable bank line of credit, funded
trust or other collateral. Any such security, once provided to
the Indemnitee, may not be revoked or released without the prior
written consent of the Indemnitee.
Section 12. Non-Exclusivity; Survival of Rights; Insurance;
Subrogation.
(a) The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may at
any time be entitled under applicable law, the Company's Certificate
of Incorporation, the Company's Restated Bylaws, any agreement, a
vote of stockholders or 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 in his Corporate Status prior to such amendment,
alteration or repeal. To the extent that a change in the General
Corporation Law of the State of Delaware, whether by statute or
judicial decision, permits greater indemnification or advancement
of Expenses than would be afforded currently under the Company's
Certificate of Incorporation, Restated 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.
(b) To the extent (if any) that the Company
maintains an insurance policy or policies providing liability
insurance for directors, officers, employees, or agents of the
Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise
which such person serves at the request of the Company, 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 such director, officer, employee or agent under such
policy or policies. If, at the time the Company receives notice
from any source of a Proceeding 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 Proceeding in accordance with
the terms of such policies.
(c) In the event of any 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 take all action necessary to secure
such rights, including execution of such documents as are necessary
to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable
(or for which advancement is provided hereunder) hereunder if and
to the extent that Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.
(e) The Company's obligation to indemnify or
advance Expenses hereunder to Indemnitee who is or was serving at
the request of the Company as a director, officer, employee or
agent of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise shall be reduced by any
amount Indemnitee has actually received as indemnification or
advancement of Expenses from such other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise.
Section 13. Duration of Agreement. This Agreement
shall continue until and terminate upon the later of: (a) 10
years after the date that Indemnitee shall have ceased to serve
as a director or executive officer of the Company or of any
other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee served at the
request of the Company; or (b) the final termination of any
Proceeding pending at the end of such 10-year period in respect
of which Indemnitee is granted rights of indemnification or
advancement of Expenses hereunder and of any proceeding commenced
by Indemnitee pursuant to Section 10 of this Agreement relating
thereto. This Agreement shall be binding upon the Company and
its successors and assigns and shall inure to the benefit of
Indemnitee and his heirs, executors and administrators.
Section 14. Severability. If any provision or
provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this
Agreement (including without limitation, each portion of any
Section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall not in any way be affected or
impaired thereby and shall remain enforceable to the fullest
extent permitted by law; (b) such provision or provisions shall
be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of
the parties hereto; and (c) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is
not itself invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested thereby.
Section 15. Exception to Right of Indemnification or
Advancement of Expenses. Notwithstanding any other provision of
this Agreement, but subject to Section 10(d) hereof, Indemnitee
shall not be entitled to indemnification or advancement of
Expenses under this Agreement with respect to any Proceeding
brought by Indemnitee, or any claim therein, unless the bringing
of such Proceeding or making of such claim shall have been
approved by the Board of Directors.
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.
Section 17. Headings. The headings of the paragraphs
of this Agreement are inserted for convenience only and shall not
be deemed to constitute part of this Agreement or to affect the
construction thereof.
Section 18. Definitions. For purposes of this Agreement:
(a) "Change in Control" means a change in control
of the Company occurring after the Effective Date 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 Securities
Exchange Act of 1934 (the "Act"), whether or not the Company is
then subject to such reporting requirement; provided, however,
that, without limitation, such a Change in Control shall be
deemed to have occurred if after the Effective Date (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Act) other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation
owned directly or indirectly by the stockholders of the Company
in substantially the same proportions as their ownership of stock
of the Company is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Act), directly or indirectly, of
securities of the Company representing 15% or more of the
combined voting power of the Company's then outstanding
securities without the prior approval of at least two-thirds of
the members of the Board in office immediately prior to such
person attaining such percentage interest; (ii) there occurs a
proxy contest, or the Company is a party to a merger,
consolidation, sale of assets, plan of liquidation or other
reorganization not approved by at least two-thirds of the members
of the Board then in office, as a consequence of which members of
the Board in office immediately prior to such transaction or
event constitute less than a majority of the Board thereafter; or
(iii) during any period of two consecutive years, other than as a
result of an event described in clause (a)(ii) of this Section
18, individuals who at the beginning of such period constituted
the Board (including for this purpose any new director whose
election or nomination for election by the Company's stockholders
was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of
the Board.
(b) "Corporate Status" describes the status of a
person who is or was a director, officer, employee or agent of the
Company or of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise which such person is
or was serving at the request of the Company.
(c) "Disinterested Director" means a director of the
Company who is not and was not a party to the Proceeding in respect of
which indemnification is sought by Indemnitee.
(d) "Effective Date" means the date upon which this
agreement was executed by the Company.
(e) "Enterprise" shall mean the Company and any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise of which Indemnitee is or was serving at
the express written request of the Company as a director,
officer, employee, agent or fiduciary.
(f) "Expenses" shall include all reasonable 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 of the types customarily
incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a
witness in, or otherwise participating in, a Proceeding.
(g) "Good Faith" shall mean Indemnitee having acted
in good faith and in a manner Indemnitee reasonably believed to be in
or not opposed to the best interests of the Company, and, with
respect to any criminal Proceeding, having had no reasonable
cause to believe Indemnitee's conduct was unlawful.
(h) "Independent Counsel" means a law firm, or a
member of a law firm, that is experienced in matters of corporation
law and neither presently is, nor in the past five years has been,
retained to represent: (i) the Company or Indemnitee in any
matter material to either such party (other than with respect to
matters concerning the Indemnitee under this Agreement, or of
other indemnitees under similar indemnification agreements), or
(ii) any other party to the 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 Indemnitee in an action to determine
Indemnitee's rights under this Agreement. The Company agrees to
pay the reasonable fees and expenses of the Independent Counsel
referred to above and to fully indemnify such counsel against any
and all Expenses, claims, liabilities and damages arising out of
or relating to this Agreement or its engagement pursuant hereto.
(i) "Proceeding" includes any threatened, pending
or completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, inquiry, administrative hearing or any
other actual, threatened or completed proceeding, whether brought
by or in the right of the Company or otherwise and whether civil,
criminal, administrative or investigative, in which Indemnitee
was, is or will be 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 action taken by him or of any inaction
on his part while acting as director or officer of the Company,
or by reason of the fact that he is or was serving at the request
of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, in each case whether or not he is acting or serving
in any such capacity at the time any liability or expense is
incurred for which indemnification or advancement of Expenses can
be provided under this Agreement; except one initiated by an
Indemnitee pursuant to Section 10 of this Agreement to enforce
his rights under this Agreement.
(j) References to "other enterprise" shall include
employee benefit plans; references to "fines" shall include any excise
tax assessed with respect to any employee benefit plan; references to
"serving at the request of the Company" shall include any service
as a director, officer, employee or agent of the Company which
imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit
plan, as participants or beneficiaries; and a person who acted in
good faith and in the manner he reasonably believed to be in the
interests of the participants and beneficiaries of an employee
benefit plan shall not be deemed to have acted in manner "not
opposed to the best interests of the Company" as referred to in
this Agreement.
Section 19. Enforcement.
(a) The Company expressly confirms and agrees that
it has entered into this Agreement and assumed the obligations
imposed on it hereby in order to induce Indemnitee to continue to
serve as a director or executive officer of the Company, and
the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as such.
(b) This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, oral, written
and implied, between the parties hereto with respect to the
subject matter hereof.
(c) The indemnification and advancement of expenses
provided by, or granted pursuant to this Agreement shall be binding upon
and be enforceable by the parties hereto and their respective
successors and assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all
or substantially all of the business or assets of the Company),
shall continue as to an Indemnitee who has ceased to be a
director, officer, employee or agent of the Company or of any
other Enterprise at the Company's request, and shall inure to the
benefit of Indemnitee and his or her spouse, assigns, heirs,
devisees, executors and administrators and other legal
representatives.
(d) The Company shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or
otherwise) to all, substantially all or a substantial part, of
the business and/or assets of the Company, by written agreement
in form and substance satisfactory to 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 had taken place.
(e) The Company and Indemnitee agree herein that a
monetary remedy for breach of this Agreement, at some later date, may
be inadequate, impracticable and difficult of proof, and further
agree that such breach may cause Indemnitee irreparable harm.
Accordingly, the parties hereto agree that Indemnitee may enforce
this Agreement by seeking injunctive relief and/or specific
performance hereof, without any necessity of showing actual
damage or irreparable harm and that by seeking injunctive relief
and/or specific performance, Indemnitee shall not be precluded
from seeking or obtaining any other relief to which he may be
entitled. The Company and Indemnitee further agree that
Indemnitee shall be entitled to such specific performance and
injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, without the
necessity of posting bonds or other undertaking in connection
therewith. The Company acknowledges that in the absence of a
waiver, a bond or undertaking may be required of Indemnitee by
the Court, and the Company hereby waives any such requirement of
such a bond or undertaking.
Section 20. Modification and Waiver. No supplement,
modification or amendment 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 21. Notice by Indemnitee. Indemnitee agrees
promptly to notify the Company in writing upon being served with
any summons, citation, subpoena, complaint, indictment, information
or other document relating to any Proceeding or matter which may
be subject to indemnification or advancement of Expenses covered
hereunder. The failure of Indemnitee to so notify the Company
shall not relieve the Company of any obligation which it may have
to the Indemnitee under this Agreement or otherwise, except to
the extent the Company is materially prejudiced by such failure.
Section 22. Notices. All notices, requests, demands
and other communications hereunder shall be in writing and shall be
deemed to have been duly given if (i) delivered by hand and receipted
for by the party to whom said notice or other communication shall
have been directed, or (ii) mailed by certified or registered
mail with postage prepaid, on the third business day after the
date on which it is so mailed:
(a) If to Indemnitee, to:
Indemnitee
Mailing address
City, State Zip Code
(b) If to the Company, to:
Intergraph Corporation
Attention: Xxxxx Xxxxxxxxxx
XX000
Xxxxxxxxxx, Xxxxxxx 00000
or to such other address as may have been furnished to Indemnitee
by the Company or to the Company by Indemnitee, as the case may
be.
Section 23. Contribution; Joint Liability.
(a) To the fullest extent permissible under
applicable law, if the indemnification and hold harmless rights
provided for in this Agreement are unavailable to Indemnitee in
whole or in part for any reason whatsoever, the Company, in
lieu of indemnifying and holding harmless Indemnitee, shall pay,
in the first instance, the entire amount incurred by Indemnitee,
whether for judgments, liabilities, fines, penalties, amounts paid
or to be paid in settlement and/or for Expenses, in connection
with any Proceeding without requiring Indemnitee to contribute to
such payment, and the Company hereby waives and relinquishes
any right of contribution it may have at any time against Indemnitee.
(b) The Company shall not enter into any settlement
of any Proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such Proceeding) unless such settlement
provides for a full and final release of all claims asserted
against Indemnitee.
(c) The Company hereby agrees to fully indemnify
and hold harmless Indemnitee from any claims for contribution which
may be brought by officers, directors or employees of the Company other
than Indemnitee who may be jointly liable with Indemnitee.
Section 24. Applicable Law and Consent to Jurisdiction.
This Agreement and the legal relations among the parties shall
be governed by, and construed and enforced in accordance with, the
laws of the State of Delaware, without regard to its conflict of
laws rules. Except with respect to any arbitration commenced by
Indemnitee pursuant to Section 10(a) of this Agreement, 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
Chancery Court of the State of Delaware (the "Chancery 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 Chancery 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 Chancery Court, and (v) waive, and agree not to plead or
to make, any claim that any such action or proceeding brought in
the Chancery Court has been brought in an improper or
inconvenient forum, or is subject (in whole or in part) to a jury
trial.
Section 25. Miscellaneous. Use of the masculine pronoun
shall be deemed to include usage of the feminine pronoun where
appropriate.
In Witness Whereof, the parties hereto have executed this
Agreement on the day and year first above written.
INTERGRAPH CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Indemnitee:
------------------------
Address:
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