EXHIBIT 10.49
FORM OF INDEMNIFICATION AGREEMENT
This Agreement is made as of the ____ day of _______, 200__, by and
between NaviSite, Inc., a Delaware corporation (the "Corporation"), and
_____________("Indemnitee"), [a director]/[an officer] of the Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as
directors and officers the most capable persons available; and
WHEREAS, it is the express policy of the Corporation to indemnify its
directors and officers so as to provide them with the maximum possible
protection permitted by law; and
WHEREAS, Indemnitee does not regard the protection available under the
Corporation's Amended and Restated Certificate of Incorporation and insurance as
adequate in the present circumstances, and may not be willing to serve or remain
as [a director]/[an officer] without adequate protection; and
WHEREAS, the Corporation desires Indemnitee to serve, or continue to
serve, as [a director]/[an officer] of the Corporation.
NOW THEREFORE, the Corporation and Indemnitee do hereby agree as
follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to
serve as (a director)/(an officer) of the Corporation for so long as he is duly
elected or appointed or until such time as he tenders his resignation in
writing.
2. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened,
pending or completed action, suit or proceeding, whether brought by or in the
right of the Corporation or otherwise and whether of a civil, criminal,
administrative or investigative nature, and any appeal therefrom.
(b) The term "Corporate Status" shall mean the status of
a person who is or was (a director)/(an officer) of the Corporation, or is or
was serving, or has agreed to serve, at the request of the Corporation, as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
(c) The term "Expenses" shall include, without
limitation, attorneys' fees, retainers, court costs, transcript costs, fees of
experts, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees and other disbursements or
expenses of the types customarily incurred in connection with investigations,
judicial or administrative proceedings or appeals, but shall not include the
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amount of judgments, fines or penalties against Indemnitee or amounts paid in
settlement in connection with such matters.
(d) 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 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 a person who
acted in good faith and in a manner he reasonably believed to be in the
interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the Corporation" as referred to in this Agreement.
3. Indemnification in Third-Party Proceedings. The Corporation
shall indemnify Indemnitee in accordance with the provisions of the Paragraph 3
if Indemnitee was or is a party to or threatened to be made a party to or
otherwise involved in any Proceeding (other than a Proceeding by or in the right
of the Corporation to procure a judgment in its favor) by reason of Indemnitee's
Corporate Status or by reason of any action alleged to have been taken or
omitted in connection therewith, against all Expenses, judgments, fines,
penalties and amounts paid in settlement actually and reasonably incurred by
Indemnitee or on Indemnitee's behalf in connection with such Proceeding, if
Indemnitee acted in good faith and in a manner which Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation and,
with respect to any criminal Proceeding, had no reasonable cause to believe that
Indemnitee's conduct was unlawful. The termination of any Proceeding by
judgment, order, settlement, 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 Indemnitee reasonably believed to be
in, or not opposed to, the best interests of the Corporation and, with respect
to any criminal Proceeding, had reasonable cause to believe that Indemnitee's
conduct was unlawful.
4. Indemnification in Proceedings by or in the Right of the
Corporation. The Corporation shall indemnify Indemnitee in accordance with the
provisions of this Paragraph 4 if Indemnitee is a party to or threatened to be
made a party to or otherwise involved in any Proceeding by or in the right of
the Corporation to procure a judgment in its favor by reason of Indemnitee's
Corporate Status or by reason of any action alleged to have been taken or
omitted in connection therewith, against all Expenses and, to the extent
permitted by law, judgment, fines, penalties and amounts paid in settlement
actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection with such Proceeding, if Indemnitee acted in good faith and in a
manner which Indemnitee reasonably believed to be in, or not opposed to, the
best interests or the Corporation, except that no indemnification shall be made
under this Paragraph 4 in respect to any claim, issue or matter as to which
Indemnitee shall have been adjudged to be liable to the Corporation, unless and
only to the extent that the Court of Chancery of Delaware shall determine upon
application that, despite the adjudication of such liability but in view of all
the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such Expenses as the Court of Chancery shall deem proper.
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5. Exceptions to Right of Indemnification. Notwithstanding
anything to the contrary in this Agreement, except as set forth in Paragraph 10,
the Corporation shall not indemnify Indemnitee in connection with a Proceeding
(or part thereof) initiated by Indemnitee unless the initiation thereof was
approved by the Board of Directors of the Corporation. Notwithstanding anything
to the contrary in this Agreement, the Corporation shall not indemnify
Indemnitee to the extent Indemnitee is reimbursed from the proceeds of
insurance, and in the event the Corporation makes any indemnification payments
to Indemnitee and Indemnitee is subsequently reimbursed from the proceeds of
insurance, Indemnitee shall promptly refund such indemnification payments to the
Corporation to the extent of such insurance reimbursement.
6. Indemnification of Expenses. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been successful,
on the merits or otherwise, in defense of any Proceeding or in defense of any
claim, issue or matter therein, Indemnitee shall be indemnified against all
Expenses incurred by Indemnitee or on Indemnitee's behalf in connection
therewith. Without limiting the foregoing, if any Proceeding or any claim, issue
or matter therein is disposed of, on the merits or otherwise (including a
disposition without prejudice), without (i) the disposition being adverse to the
Indemnitee, (ii) an adjudication that the Indemnitee was liable to the
Corporation, (iii) a plea of guilty or nolo contendere by the Indemnitee, (iv)
an adjudication that the Indemnitee did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and (v) with respect to any criminal proceeding, an adjudication
that the Indemnitee had reasonable cause to believe his conduct was unlawful,
Indemnitee shall be considered for the purposes hereof to have been wholly
successful with respect thereto. In addition, notwithstanding any other
provision contained in this Agreement, to the extent that Indemnitee is, by
reason of his Corporate Status, a witness to any Proceeding to which Indemnitee
is not a party, Indemnitee shall be indemnified and held harmless from all
Expenses actually and reasonable incurred by Indemnitee in connection therewith.
7. Notification and Defense of Claim. As a condition precedent to
Indemnitee's right to be indemnified, Indemnitee agrees to notify the
Corporation in writing as soon as reasonably practicable of any Proceeding for
which indemnity will or could be sought by Indemnitee and provide the
Corporation with a copy of any summons, citation, subpoena, complaint,
indictment, information or other document relating to such Proceeding with which
Indemnitee is served; provided, however, that the failure to give such notice
shall not relieve the Corporation of its obligations to Indemnitee under this
Agreement, except to the extent, if any, that the Corporation is actually
prejudiced by the failure to give such notice. With respect to any Proceeding of
which the Corporation is so notified, the Corporation will be entitled to
participate therein at its own expense and/or to assume the defense thereof at
its own expense, with legal counsel reasonably acceptable to Indemnitee. After
notice from the Corporation to Indemnitee of its election so to assume such
defense, the Corporation shall not be liable to the Indemnitee for any legal or
other expenses subsequently incurred by the Indemnitee in connection with such
Proceeding, other than as provided below in this Paragraph 7. Indemnitee shall
have the right to employ Indemnitee's own counsel in connection with such
Proceeding, but the fees and expenses of such counsel incurred after
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notice from the Corporation of its assumption of the defense thereof shall be at
the expense of Indemnitee unless (i) the employment of counsel by Indemnitee has
been authorized by the Corporation, (ii) counsel to Indemnitee shall have
reasonably concluded that there may be a conflict of interest or position on any
significant issue between the Corporation and Indemnitee in the conduct of the
defense of such Proceeding or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such Proceeding, in each of which
cases the fees and expenses of counsel for Indemnitee shall be at the expense of
the Corporation, except as otherwise expressly provided by this Agreement. The
Corporation shall not be entitled, without the consent of Indemnitee, to assume
the defense of any claim brought by or in the right of the Corporation or as to
which counsel for Indemnitee shall have reasonably made the conclusion provided
for in clause (ii) above. The Corporation shall not be required to indemnify
Indemnitee under this Agreement for any amounts paid in settlement of any
Proceeding effected without its written consent. The Corporation shall not
settle any Proceeding in any manner which would impose any penalty or limitation
on Indemnitee without Indemnitee's written consent. Neither the Corporation nor
the Indemnitee will unreasonably withhold its consent to any proposed
settlement.
8. Advancement of Expenses. Any Expenses incurred by Indemnitee
in connection with any such Proceeding to which Indemnitee was or is a witness
or a party or is threatened to be a party by reason of his Corporate Status or
by reason of any action alleged to have been taken or omitted in connection
therewith shall be paid by the Corporation in advance of the final disposition
of such matter; provided, however, that the payment of such Expenses incurred by
the Indemnitee in advance of the final disposition of such matter shall be made
only upon receipt of an undertaking by or on behalf of the Indemnitee to repay
all amounts so advanced in the event that it shall ultimately be determined that
the Indemnitee is not entitled to be indemnified by the Corporation as
authorized in this Agreement; and further provided that no such advancement of
Expenses shall be made if it is determined that (i) Indemnitee did not act in
good faith and in a manner Indemnitee reasonably believes to be in, or not
opposed to, the best interests of the Corporation, or (ii) with respect to any
criminal action or proceeding, the Indemnitee had reasonable cause to believe
Indemnitee's conduct was unlawful. Such undertaking shall be accepted without
reference to the financial ability of Indemnitee to make such repayment. If,
pursuant to the terms of this Agreement, Indemnitee is not entitled to be
indemnified with respect to such Proceeding, then such Expenses shall be paid
within 60 days after the receipt by Indemnitee of the written request by the
Corporation for the Indemnitee to make payments to the Corporation.
9. Procedure for Indemnification. In order to obtain
indemnification pursuant to Paragraphs 3, 4 or 6 of this Agreement, Indemnitee
shall submit to the Corporation a written request, including in such request
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 or advancement of Expenses. Any such indemnification
or advancement of Expenses shall be made promptly, and in any event within 60
days after receipt by the Corporation of the written request of the Indemnitee,
unless with respect to requests under Paragraphs 3 or 4 the Corporation
determines within such 60-day period that such Indemnitee did not meet the
applicable standard of conduct set forth in Paragraphs 3 or 4, as the case may
be. Such determination, and any determination
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pursuant to Section 8 that advanced Expenses must be repaid to the Corporation,
shall be made in each instance (a) by a majority vote of the directors of the
Corporation consisting of persons who are not at that time parties to the
Proceeding ("Disinterested Directors"), whether or not a quorum, (b) by a
committee of Disinterested Directors designated by majority vote of
Disinterested Directors, whether or not a quorum, (c) if there are no
Disinterested Directors, or if Disinterested Directors so direct, by independent
legal counsel (who may, to the extent permitted by applicable law, be regular
legal counsel to the Corporation ) in a written opinion or (d) by the
stockholders.
10. Remedies. The right to indemnification and immediate
advancement of Expenses as provided by this Agreement shall be enforceable by
the Indemnitee in any court of competent jurisdiction. Unless otherwise required
by law, the burden of proving that indemnification is not appropriate shall be
on the Corporation. Neither the failure of the Corporation to have made a
determination prior to the commencement of such action that indemnification is
proper in the circumstances because Indemnitee has met the applicable standard
of conduct, nor an actual determination by the Corporation pursuant to Paragraph
9 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. Indemnitee's expenses (of the type described in
the definition of "Expenses" in Paragraph 2 (c)) reasonably incurred in
connection with successfully establishing Indemnitee's right to indemnification,
in whole or in part, in any such Proceeding also shall be indemnified by the
Corporation.
11. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or a
portion of the Expenses, judgments, fines penalties or amounts paid in
settlement actually and reasonably incurred by Indemnitee or on Indemnitee's
behalf in connection with any Proceeding but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion
of such Expenses, judgments, fines, penalties or amounts paid in settlement to
which Indemnitee is entitled.
12. Subrogation. In the event of any payment under this Agreement,
the Corporation 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 Corporation to bring suit to enforce
such rights.
13. Term of Agreement. This Agreement shall continue until and
terminate upon the later of (a) six years after the date that Indemnitee shall
have ceased to serve as [a director]/[an officer] of the Corporation or, at the
request of the Corporation, as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise; (b) the
expiration of all applicable statute of limitations periods for any claim which
may be brought against Indemnitee in a Proceeding as a result of his Corporate
Status; or (c) the final termination of all Proceedings pending on the date set
forth in clauses (a) or (b) in respect of which Indemnitee is granted rights of
indemnification or advancement of
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Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to
Paragraph 10 of this Agreement relating thereto.
14. Indemnification Hereunder Not Exclusive. The indemnification
and advancement of Expenses provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may be entitled under the
Certification of Incorporation, the By-Laws, any agreement, any vote of
stockholders or disinterested directors, the General Corporation law of the
State of Delaware, any other law (common or statutory) or otherwise, both as to
action in Indemnitee's official corporate capacity and as to action in another
capacity while holding office for the Corporation. Nothing contained in this
Agreement shall be deemed to prohibit the Corporation from purchasing and
maintaining insurance, at its expense, to protect itself or the Indemnitee
against any expense, liability or loss incurred by it or Indemnitee in any such
capacity, or arising out of Indemnitee's status as such, whether or not
Indemnitee would be indemnified against such expense, liability or loss under
this Agreement; provided that the Corporation shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise, including as
provided in Section 5 hereof.
15. No Special Rights. Nothing herein shall confer upon Indemnitee
any right to continue to serve as [a director]/[an officer] of the Corporation
for any period of time or, except as expressly provided herein, at any
particular rate of compensation.
16. Savings Clause. If this Agreement or any portion thereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify Indemnitee as to Expenses, judgments,
fines, penalties and amounts paid in settlement with respect to any Proceeding
to the full extent permitted by any applicable portion of this Agreement that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
17. Counterparts; Facsimile Signatures. This Agreement maybe
executed in two counterparts, both of which together shall constitute the
original instrument. This Agreement may be executed by facsimile signatures.
18. Successors and Assigns. This Agreement shall be binding upon
the Corporation and its successors and assigns and shall inure to the benefit of
the estate, heirs, executors, administrators and personal representatives of
Indemnitee.
19. 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.
20. Modification and Waiver. This Agreement may be amended from
time to time to reflect changes in Delaware law or for other reasons. 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
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constitute a waiver of any other provision hereof nor shall any such waiver
constitute a continuing waiver.
21. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
given (i) when delivered by hand or (ii) if mailed by certified or registered
mail with postage prepaid, on the third day after the date on which it is so
mailed:
(a) if to the Indemnitee, to:
__________________
__________________
__________________
(b) if to the Corporation, to:
NaviSite, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxx Xxxxx
General Counsel and Secretary
or to such other address as may have been furnished to Indemnitee by the
Corporation or to the Corporation by Indemnitee, as the case may be.
22. Applicable Law. This Agreement shall be governed by and
constructed in accordance with the laws of the State of Delaware.
23. Enforcement. The Corporation expressly confirms and agrees
that it has entered into this Agreement in order to induce Indemnitee to
continue to serve as [a director]/[an officer] of the Corporation and
acknowledges that Indemnitee is relying upon this Agreement in continuing in
such capacity.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
NAVISITE, INC.
By_______________________
Name:
Title:
______________________
[Name of Indemnitee]
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