INDEMNITY AGREEMENT
Exhibit 10.4
This
Indemnity Agreement, dated as of ___________________, 2007, is made by and between
AuthenTec, Inc., a Delaware corporation (the
“Company”), and ___________________ (the
“Indemnitee”).
RECITALS
A. The Company is aware that competent and experienced persons are increasingly reluctant to
serve as directors, officers or agents of corporations unless they are protected by comprehensive
liability insurance or indemnification, due to increased exposure to litigation costs and risks
resulting from their service to such corporations, and due to the fact that the exposure frequently
bears no reasonable relationship to the compensation of such directors, officers and other agents.
B. The statutes and judicial decisions regarding the duties of directors and officers are
often difficult to apply, ambiguous, or conflicting, and therefore fail to provide such directors,
officers and agents with adequate, reliable knowledge of legal risks to which they are exposed or
information regarding the proper course of action to take.
C. Plaintiffs often seek damages in such large amounts and the costs of litigation may be so
enormous (whether or not the case is meritorious), that the defense and/or settlement of such
litigation is often beyond the personal resources of directors, officers and other agents.
D. The Company believes that it is unfair for its directors, officers and agents and the
directors, officers and agents of its subsidiaries to assume the risk of huge judgments and other
expenses which may occur in cases in which the director, officer or agent received no personal
profit and in cases where the director, officer or agent was not culpable.
E. The Company recognizes that the issues in controversy in litigation against a director,
officer or agent of a corporation such as the Company or its subsidiaries are often related to the
knowledge, motives and intent of such director, officer or agent, that he is usually the only
witness with knowledge of the essential facts and exculpating circumstances regarding such matters,
and that the long period of time which usually elapses before the trial or other disposition of
such litigation often extends beyond the time that the director, officer or agent can reasonably
recall such matters and may extend beyond the normal time for retirement for such director, officer
or agent with the result that he, after retirement or in the event of his death, his spouse, heirs,
executors or administrators, may be faced with limited ability and undue hardship in maintaining an
adequate defense, which may discourage such a director, officer or agent from serving in that
position.
F. Based upon their experience as business managers, the Board of Directors of the Company
(the “Board”) has concluded that, to retain and attract talented and experienced
individuals to serve as directors, officers and agents of the Company and its subsidiaries and to
encourage such individuals to take the business risks necessary for the success of the Company and
its subsidiaries, it is necessary for the Company to contractually indemnify its directors,
officers and agents and the directors, officers and agents of its subsidiaries, and to assume for
1
itself maximum liability for expenses and damages in connection with claims against such
directors, officers and agents in connection with their service to the Company and its
subsidiaries, and has further concluded that the failure to provide such contractual
indemnification could result in great harm to the Company and its subsidiaries and the Company’s
stockholders.
G. Section 145 of the General Corporation Law of Delaware, under which the Company is
organized (“Section 145”), empowers the Company to indemnify its directors, officers,
employees and agents by agreement and to indemnify persons who serve, at the request of the
Company, as the directors, officers, employees or agents of other corporations or enterprises, and
expressly provides that the indemnification provided by Section 145 is not exclusive.
H. The Company desires and has requested the Indemnitee to serve or continue to serve as a
director, officer or agent of the Company and/or one or more subsidiaries of the Company free from
undue concern for claims for damages arising out of or related to such services to the Company
and/or one or more subsidiaries of the Company.
I. Indemnitee is willing to serve, or to continue to serve, the Company and/or one or more
subsidiaries of the Company, provided that he is furnished the indemnity provided for herein.
AGREEMENT
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions.
(a) Agent. For the purposes of this Agreement, “agent” of the Company means any
person who is or was a director, officer, employee or other agent of the Company or a subsidiary of
the Company; or is or was serving at the request of, for the convenience of, or to represent the
interests of the Company or a subsidiary of the Company as a director, officer, employee or agent
of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise;
or was a director, officer, employee or agent of a foreign or domestic corporation which was a
predecessor corporation of the Company or a subsidiary of the Company, or was a director, officer,
employee or agent of another enterprise at the request of, for the convenience of, or to represent
the interests of such predecessor corporation.
(b) Expenses. For purposes of this Agreement, “expenses” include all out-of-pocket
costs of any type or nature whatsoever (including, without limitation, all attorneys’ fees and
related disbursements), actually and reasonably incurred by the Indemnitee in connection with
either the investigation, defense or appeal of a proceeding or establishing or enforcing a right to
indemnification under this Agreement or Section 145 or otherwise; provided, however, that
“expenses” shall not include any judgments, fines, ERISA excise taxes or penalties, or amounts paid
in settlement of a proceeding.
2
(c) Proceeding. For the purposes of this Agreement, “proceeding” means any
threatened, pending, or completed action, suit, investigation, arbitration, alternative dispute
resolution mechanism, hearing, or proceeding, and any appeal thereof, whether civil, criminal,
administrative or investigative and/or any inquiry or investigation, whether conducted by the
Company or any other party, that the Indemnitee in good faith believes might lead to the
institution of any such action.
(d) Subsidiary. For purposes of this Agreement, “subsidiary” means any corporation of
which more than 50% of the outstanding voting securities is owned directly or indirectly by the
Company, by the Company and one or more other subsidiaries, or by one or more other subsidiaries.
2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to serve as
agent of the Company, at its will (or under separate agreement, if such agreement exists), in the
capacity Indemnitee currently serves as an agent of the Company, so long as he is duly appointed or
elected and qualified in accordance with the applicable provisions of the Bylaws of the Company or
any subsidiary of the Company or until such time as he tenders his resignation in writing;
provided, however, that nothing contained in this Agreement is intended to create any right to
continued employment by Indemnitee.
3. Liability Insurance.
(a) Maintenance of D&O Insurance. The Company hereby covenants and agrees that, so
long as the Indemnitee shall continue to serve as an agent of the Company and thereafter so long as
the Indemnitee shall be subject to any possible proceeding by reason of the fact that the
Indemnitee was an agent of the Company, the Company, subject to Section 3(c), shall promptly obtain
and maintain in full force and effect directors’ and officers’ liability insurance (“D&O
Insurance”) in reasonable amounts from established and reputable insurers.
(b) Rights and Benefits. In all policies of D&O Insurance, the Indemnitee shall be
named as an insured in such a manner as to provide the Indemnitee the same rights and benefits as
are accorded to the most favorably insured of the Company’s directors, if the Indemnitee is a
director; or of the Company’s officers, if the Indemnitee is not a director of the Company but is
an officer; or of the Company’s key employees, if the Indemnitee is not a director or officer but
is a key employee.
(c) Limitation on Required Maintenance of D&O Insurance. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain D&O Insurance if the Company
determines in good faith that such insurance is not reasonably available, the premium costs for
such insurance are disproportionate to the amount of coverage provided, the coverage provided by
such insurance is limited by exclusions so as to provide an insufficient benefit, or the Indemnitee
is covered by similar insurance maintained by a subsidiary of the Company.
4. Mandatory Indemnification. Subject to Section 9 below, the Company shall indemnify
the Indemnitee as follows:
(a) Third Party Actions. If the Indemnitee is a person who was or is a party or is
threatened to be made a party to any proceeding (other than an action by or in the right of the
3
Company) by reason of the fact that he is or was an agent of the Company, or by reason of
anything done or not done by him in any such capacity, the Company shall indemnify the Indemnitee
against any and all expenses and liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes and penalties, and amounts paid in settlement) actually and
reasonably incurred by him in connection with the investigation, defense, settlement or appeal of
such proceeding, provided it shall not have been determined (as provided in Section 8(c) or, if
sought by the Indemnitee, by final, non-appealable judgment of a court of competent jurisdiction as
provided for in Sections 8(e) or 11) that such indemnification is not permitted under applicable
law.
(b) Derivative Actions. If the Indemnitee is a person who was or is a party or is
threatened to be made a party to any proceeding by or in the right of the Company by reason of the
fact that he is or was an agent of the Company, or by reason of anything done or not done by him in
any such capacity, the Company shall indemnify the Indemnitee against all expenses actually and
reasonably incurred by him in connection with the investigation, defense, settlement, or appeal of
such proceeding, provided it shall not have been determined (as provided in Section 8(c) or, if
sought by the Indemnitee, by final, non-appealable judgment of a court of competent jurisdiction as
provided for in Sections 8(e) or 11) that such indemnification is not permitted under applicable
law.
(c) Actions where Indemnitee is Deceased. If the Indemnitee is a person who was or is
a party or is threatened to be made a party to any proceeding by reason of the fact that he is or
was an agent of the Company, or by reason of anything done or not done by him in any such capacity,
and if prior to, during the pendency of after completion of such proceeding Indemnitee becomes
deceased, the Company shall indemnify the Indemnitee’s heirs, executors and administrators against
any and all expenses and liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes and penalties, and amounts paid in settlement) actually and
reasonably incurred to the extent Indemnitee would have been entitled to indemnification pursuant
to Sections 4(a) or 4(b) above were Indemnitee still alive.
(d) Limitations. Notwithstanding the foregoing, the Company shall not be obligated to
indemnify the Indemnitee for expenses or liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes and penalties, and amounts paid in settlement) for
which payment is actually made to or on behalf of Indemnitee under a valid and collectible
insurance policy of D&O Insurance, or under a valid and enforceable indemnity clause, by-law or
agreement.
5. Partial Indemnification. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of any expenses or liabilities of
any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes and
penalties, and amounts paid in settlement) incurred by him in the investigation, defense,
settlement or appeal of a proceeding, but not entitled, however, to indemnification for all of the
total amount hereof, the Company shall nevertheless indemnify the Indemnitee for such total amount
except as to the portion hereof to which the Indemnitee is not entitled.
4
6. Mandatory Advancement of Expenses. Subject to Section 9(a) below, the Company
shall advance all expenses incurred by the Indemnitee in connection with the
investigation, defense, settlement or appeal of any proceeding to which the Indemnitee is a
party or is threatened to be made a party by reason of the fact that the Indemnitee is or was an
agent of the Company. Indemnitee hereby undertakes to repay such amounts advanced only if, and to
the extent that, it shall be determined (as provided in Section 8(c) or, if sought by the
Indemnitee, by final, non-appealable judgment of a court of competent jurisdiction as provided for
in Sections 8(e) or 11) that the Indemnitee is not entitled to be indemnified by the Company as
authorized hereby. The Indemnitee’s obligation to reimburse the Company pursuant to this Section 6
shall be unsecured and no interest shall be charged thereon. The advances to be made hereunder
shall be paid by the Company to the Indemnitee within twenty (20) days following delivery of a
written request therefor by the Indemnitee to the Company.
7. Notice and Other Indemnification Procedures.
(a) Notice by Indemnitee. Promptly after receipt by the Indemnitee of notice of the
commencement of or the threat of commencement of any proceeding, the Indemnitee shall, if the
Indemnitee believes that indemnification with respect thereto may be sought from the Company under
this Agreement, notify the Company of the commencement or threat of commencement thereof. The
failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation
which it may have to Indemnitee under this Agreement or otherwise except to the extent that the
Company is materially prejudiced thereby.
(b) Notice by Company. If, at the time of the receipt of a notice of the commencement
of a proceeding pursuant to Section 7(a) hereof, the Company has D&O Insurance in effect, the
Company shall give prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such proceeding in accordance with the terms of such policies.
(c) Defense. In the event the Company shall be obligated to pay the expenses of any
proceeding against the Indemnitee, the Company, if appropriate, shall be entitled to assume the
defense of such proceeding, with counsel approved by the Indemnitee, upon the delivery to the
Indemnitee of written notice of its election so to do. After delivery of such notice, approval of
such counsel by the Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to the Indemnitee under this Agreement for any fees of counsel subsequently incurred
by the Indemnitee with respect to the same proceeding, provided that (i) the Indemnitee shall have
the right to employ his counsel in any such proceeding at the Indemnitee’s expense; and (ii) if (A)
the employment of counsel by the Indemnitee has been previously authorized by the Company, (B) the
Indemnitee shall have reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of any such defense, or (C) the Company shall not, in
fact, have employed counsel to assume the defense of such proceeding, then the fees and expenses of
Indemnitee’s counsel shall be at the expense of the Company.
5
8. Determination of Right to Indemnification.
(a) Successful Defense. To the extent the Indemnitee has been successful on the
merits or otherwise in defense of any proceeding (including, without limitation, an action by or in
the right of the Company) to which the Indemnitee was a party by reason of the fact that he is or
was an agent of the Company at any time, the Company shall indemnify the Indemnitee against all
expenses of any type whatsoever actually and reasonably incurred by him in connection with the
investigation, defense or appeal of such proceeding.
(b) Other Situations. In the event that Section 8(a) is inapplicable, the Company
shall also indemnify the Indemnitee unless, and except to the extent that, the Company shall prove
by clear and convincing evidence in a forum listed in Section 8(c) below that the Indemnitee has
not met the applicable standard of conduct required to entitle the Indemnitee to such
indemnification.
(c) Selection of Forum. The Indemnitee shall be entitled to select the forum in which
the validity of the Company’s claim under Section 8(b) hereof that the Indemnitee is not entitled
to indemnification will be heard from among the following:
(i) A quorum of the Board consisting of directors who are not parties to the proceeding for
which indemnification is being sought;
(ii) The stockholders of the Company;
(iii) Legal counsel selected by the Indemnitee, and reasonably approved by the Board, which
counsel shall make such determination in a written opinion; or
(iv) A panel of three arbitrators, one of whom is selected by the Company, another of whom is
selected by the Indemnitee and the last of whom is selected by the first two arbitrators so
selected.
(d) Submission to Forum. As soon as practicable, and in no event later than thirty
(30) days after written notice of the Indemnitee’s choice of forum pursuant to Section 8(c) above,
the Company shall, at its own expense, submit to the selected forum in such manner as the
Indemnitee or the Indemnitee’s counsel may reasonably request, its claim that the Indemnitee is not
entitled to indemnification; and the Company shall act in the utmost good faith to assure the
Indemnitee a complete opportunity to defend against such claim. In connection with any such
determination as to whether Indemnitee is entitled to be indemnified pursuant to this Agreement or
any proceeding seeking enforcement of Indemnitee’s rights to indemnification or advancement
pursuant to this Agreement or otherwise, the burden of proof shall be on the Company to establish
that Indemnitee is not so entitled.
(e) Application to Court of Chancery. Notwithstanding a determination by any forum
listed in Section 8(c) hereof that Indemnitee is not entitled to indemnification with respect to a
specific proceeding, the Indemnitee shall have the right to apply to the Court of Chancery of
Delaware, the court in which that proceeding is or was pending or any other court of competent
jurisdiction, for the purpose of enforcing the Indemnitee’s right to indemnification pursuant to
this Agreement. In connection with any such determination as to whether
6
Indemnitee is entitled to be indemnified pursuant to this Agreement or any proceeding seeking
enforcement of Indemnitee’s rights to indemnification or advancement pursuant to this Agreement or
otherwise, the burden of proof shall be on the Company to establish that Indemnitee is not so
entitled. Neither the failure of the Company (including its Board of Directors or its
stockholders) to have made a determination prior to the commencement of such enforcement action
that indemnification of Indemnitee is proper in the circumstances, nor an actual determination by
the Company (including its Board of Directors or its stockholders) that such indemnification is
improper, shall be a defense to the action or create a presumption that Indemnitee is not entitled
to indemnification under this Agreement or otherwise.
(f) Expenses Related to this Agreement. Notwithstanding any other provision in this
Agreement to the contrary, the Company shall indemnify the Indemnitee against all expenses incurred
by the Indemnitee in connection with any hearing or proceeding under this Section 8 involving the
Indemnitee and against all expenses incurred by the Indemnitee in connection with any other
proceeding between the Company and the Indemnitee involving the interpretation or enforcement of
the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds
that each of the claims and/or defenses of the Indemnitee in any such proceeding was frivolous or
made in bad faith.
9. Exceptions. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses to the
Indemnitee with respect to proceedings or claims initiated or brought voluntarily by the Indemnitee
and not by way of defense, unless (i) such indemnification is expressly required to be made by law,
(ii) the proceeding was authorized by the Board, (iii) such indemnification is provided by the
Company, in its sole discretion, pursuant to the powers vested in the Company under the General
Corporation Law of Delaware or (iv) the proceeding is brought to establish or enforce a right to
indemnification under this Agreement, the Company’s Certificate of Incorporation or Bylaws, or any
other statute or law or otherwise as required under Section 145;
(b) Lack of Good Faith. To indemnify the Indemnitee for any expenses incurred by the
Indemnitee with respect to any proceeding instituted by the Indemnitee to enforce or interpret this
Agreement, if a court of competent jurisdiction determines that each of the material assertions
made by the Indemnitee in such proceeding was not made in good faith or was frivolous; or
(c) Unauthorized Settlements. To indemnify the Indemnitee under this Agreement for
any amounts paid in settlement of a proceeding unless the Company consents to such settlement,
which consent shall not be unreasonably withheld.
10. Non-exclusivity. The provisions for indemnification and advancement of expenses
set forth in this Agreement shall not be deemed exclusive of any other rights which the Indemnitee
may have under any provision of law, the Company’s Certificate of Incorporation or Bylaws, the vote
of the Company’s stockholders or disinterested directors, other agreements, or otherwise, both as
to action in his official capacity and to action in another capacity while occupying his position
as an agent of the Company, and the Indemnitee’s rights hereunder shall
7
continue after the Indemnitee has ceased acting as an agent of the Company and shall inure to
the benefit of the heirs, executors and administrators of the Indemnitee.
11. Enforcement. Any right to indemnification or advances granted by this Agreement
to Indemnitee shall be enforceable by or on behalf of Indemnitee in any court of competent
jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or
(ii) no disposition of such claim is made within sixty (60) days of request therefor. Indemnitee,
in such enforcement action, if successful in whole or in part, shall be entitled to be paid also
the expense of prosecuting his claim. It shall be a defense to any action for which a claim for
indemnification is made under this Agreement (other than an action brought to enforce a claim for
expenses pursuant to Section 6 hereof, provided that the required undertaking has been tendered to
the Company) that Indemnitee is not entitled to indemnification because of the limitations set
forth in Sections 4 and 9 hereof. Neither the failure of the Company (including its Board of
Directors or its stockholders) to have made a determination prior to the commencement of such
enforcement action that indemnification of Indemnitee is proper in the circumstances, nor an actual
determination by the Company (including its Board of Directors or its stockholders) that such
indemnification is improper, shall be a defense to the action or create a presumption that
Indemnitee is not entitled to indemnification under this Agreement or otherwise.
12. Subrogation. In the event the Company is obligated to make a payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of
recovery under an insurance policy or any other indemnity agreement covering the Indemnitee, who
shall execute all documents required and shall do all acts that may be necessary to secure such
rights and to enable the Company effectively to bring suit to enforce such rights.
13. Survival of Rights.
(a) All agreements and obligations of the Company contained herein shall continue during the
period Indemnitee is an agent of the Company and shall continue thereafter so long as Indemnitee
shall be subject to any possible claim or threatened, pending or completed action, suit or
proceeding, whether civil, criminal, arbitrational, administrative or investigative, by reason of
the fact that Indemnitee was serving in the capacity referred to herein.
(b) The Company shall require any successor to the Company (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets
of the Company, 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.
14. Interpretation of Agreement. It is understood that the parties hereto intend this
Agreement to be interpreted and enforced so as to provide indemnification to the Indemnitee to the
fullest extent permitted by law including those circumstances in which indemnification would
otherwise be discretionary. 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 or her corporate status prior to such
amendment, alteration or repeal. To the extent that a change in applicable law, whether by
8
statute or judicial decision, permits greater indemnification or advancement of expenses than
would be afforded currently under the Company’s Certificate of Incorporation, 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.
15. Severability. If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of the Agreement (including without limitation, all
portions of any paragraphs of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in
any way be affected or impaired thereby, and (ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, all portions of any paragraph of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable and to give effect to Section 14 hereof.
16. 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.
17. Notice. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and receipted
for by the party addressee or (ii) if mailed by certified or registered mail with postage prepaid,
on the third business day after the mailing date. Addresses for notice to either party are as
shown on the signature page of this Agreement, or as subsequently modified by written notice.
18. Governing Law. This Agreement shall be governed exclusively by and construed
according to the laws of the State of Delaware as applied to contracts between Delaware residents
entered into and to be performed entirely within Delaware.
The parties hereto have entered into this Indemnity Agreement effective as of the date first
above written.
| THE COMPANY: AUTHENTEC, INC. |
||||
| By | ||||
Title |
||||
| Address | ||||
| INDEMNITEE: | ||||
| [Name] | ||||
| Address | ||||
9
