INDEMNIFICATION AGREEMENT
EXHIBIT
10(f)
THIS INDEMNIFICATION AGREEMENT made and entered into this 31st day of July, 2010
(“Agreement”), by and between DeVRY INC., a Delaware corporation, and its wholly owned subsidiaries
(“Company”), and (“Indemnitee”).
WHEREAS, highly competent persons are reluctant to serve publicly-held corporations as
directors or in other capacities unless they are provided with adequate protection through
insurance and indemnification against inordinate risks of claims and actions against them arising
out of their service to and activities on behalf of the corporation; and
WHEREAS, the difficulties from time to time in obtaining adequate insurance on a cost
effective basis and uncertainties relating to indemnification increase the difficulty of attracting
and retaining such persons; and
WHEREAS, the Board of Directors has determined that the inability to attract and retain 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 such protection in the
future; and
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify such persons to the fullest extent permitted by applicable law so they will
serve or continue to serve the Company free from undue concern that they will not be so
indemnified; and
WHEREAS, this Agreement is being entered into as part of the Indemnitee’s total compensation
for serving as a director; and
WHEREAS, Indemnitee is willing to serve or to continue to serve and to take on additional
service for or on behalf of the Company on the condition that Indemnitee be so indemnified;
NOW THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and the Indemnitee do hereby covenant and agree as follows:
Section 1. Services by Indemnitee. Indemnitee agrees to serve as a director of the Company
and agrees to the indemnification provisions provided for herein. Indemnitee may at any time and
for any reason resign from such position (subject to any other contractual obligation or other
obligation imposed by operation of law), in which event the Company shall have no obligation under
this Agreement to continue Indemnitee in any such position.
Section 2. Indemnification. The Company shall indemnify Indemnitee to the fullest extent
permitted by applicable law in effect on the date hereof or as such laws may from time to time be
amended. Without diminishing the scope of the indemnification provided by this Section 2, the
rights of indemnification of Indemnitee provided hereunder shall include but shall not be limited
to those rights set forth hereinafter, except to the extent expressly prohibited by applicable law.
Section 3. Action or Proceeding Other Than an Action by or in the Right of the Company.
Indemnitee shall be entitled to the indemnification rights provided in this Section if Indemnitee
was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an
action by or in the right of the Company, by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company or 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. Pursuant to this Section, Indemnitee shall be indemnified
against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by
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Indemnitee in connection with such action, suit or proceeding (including, but not limited to,
the investigation, defense or appeal thereof), if Indemnitee 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 action or proceeding, had no reasonable cause to believe the conduct
was unlawful; provided, however, the Company shall not be obligated to indemnify the Indemnitee in
connection with any actions, suits or proceedings if the indemnification relates to any
“short-swing” disgorgement or similar liability arising under Section 16(b) or 16(c) of the
Securities Exchange Act of 1934, as amended, or any rules or regulations promulgated thereunder.
Section 4. Actions by or in the Right of the Company. Indemnitee shall be entitled to the
indemnification rights provided in this Section if Indemnitee is a person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the Company to procure a judgment in its favor by reason of the fact that Indemnitee
is or was a director, officer, employee or agent of the Company or 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. Pursuant to this Section, Indemnitee shall be indemnified
against expenses (including attorneys’ fees) actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of such action or suit if Indemnitee acted in good faith
and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company; provided, however, that no such indemnification shall be made in respect of any claim,
issue or matter as to which Indemnitee shall have been adjudged to be liable to the Company,
unless, and only to the extent that, the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon application that, despite such
adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnification for such expenses as such court shall deem proper. The
Company shall not be obligated to indemnify the Indemnitee in connection with any actions, suits or
proceedings if the indemnification relates to any “short-swing” disgorgement or similar liability
arising under Section 16(b) or 16(c) of the Securities Exchange Act of 1934, as amended, or any
rules or regulations promulgated thereunder.
Section 5. Indemnification for Costs, Charges and Expenses of Successful Party.
Notwithstanding the other provisions of this Agreement, to the extent that Indemnitee has served as
a witness on behalf of the Company or has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Sections 3 and 4 hereof, or in defense of any claim,
issue or matter therein, Indemnitee shall be indemnified against all expenses (including attorneys’
fees) actually and reasonably incurred by Indemnitee in connection therewith.
Section 6. Partial Indemnification. If Indemnitee is only partially successful in the
defense, investigation, settlement or appeal of any action, suit, investigation or proceeding
described in Section 3 or 4 hereof, and as a result is not entitled under Section 5 hereof to
indemnification by the Company for the total amount of the expenses (including attorneys’ fees),
costs, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred
by him, the Company shall nevertheless indemnify Indemnitee, as a matter of right pursuant to
Section 5 hereof, to the extent Indemnitee has been partially successful.
Section 7. Determination of Entitlement to Indemnification. Upon written request by
Indemnitee for indemnification pursuant to Section 3 or 4 hereof, the entitlement of Indemnitee to
indemnification pursuant to the terms of this Agreement shall be determined by the following person
or persons who shall be empowered to make such determination: (a) the Board of Directors of the
Company by a majority vote of the Disinterested Directors (as hereinafter defined), even though
less than a quorum; or (b) by a committee of Disinterested Directors designated by a majority vote
of such Directors, even though less than a quorum; or (c) if there are no Disinterested Directors,
or if the Disinterested Directors direct by majority vote, 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 (d) by the stockholders. Such Independent Counsel shall be selected by the
Disinterested Directors by majority vote and approved by Indemnitee. Upon failure of the Board of
Directors to so select
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such Independent Counsel or upon failure of Indemnitee to so approve, such Independent Counsel
shall be selected by the Chancellor of the State of Delaware or such other person as the Chancellor
shall designate to make such selection. Such determination of entitlement to indemnification shall
be made no later than 60 days after receipt by the Company of a written request for
indemnification. Such request shall include documentation or information which is necessary for
such determination and which is reasonably available to Indemnitee. Any costs or expenses
(including attorneys’ fees) incurred by Indemnitee in connection with Indemnitee’s request for
indemnification hereunder shall be borne by the Company. The Company hereby indemnifies and agrees
to hold Indemnitee harmless therefore irrespective of the outcome of the determination of
Indemnitee’s entitlement to indemnification. If the person making such determination shall
determine that Indemnitee is entitled to indemnification as to part (but not all) of the
application for indemnification, such person shall reasonably prorate such partial indemnification
among such claims, issues or matters.
Section 8. Presumptions and Effect of Certain Proceedings. The Secretary of the Company
shall, promptly upon receipt of Indemnitee’s request for indemnification, advise in writing the
Board of Directors or such other person or persons empowered to make the determination as provided
in Section 7 that Indemnitee has made such request for indemnification. Upon making such request
for indemnification, Indemnitee shall be presumed to be entitled to indemnification hereunder and
the Company shall have the burden of proof in the making of any determination contrary to such
presumption. If the person or persons so empowered to make such determination shall have failed to
make the requested indemnification within 60 days after receipt by the Company of such request, the
requisite determination of entitlement to indemnification shall be deemed to have been made and
Indemnitee shall be absolutely entitled to such indemnification, absent actual and material fraud
in the request for indemnification. The termination of any action, suit, investigation or
proceeding described in Section 3 or 4 hereof by judgment, order, settlement or conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself (a) 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 Company, and, with respect to any criminal action or
proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful
or (b) otherwise adversely affect the rights of Indemnitee to indemnification except as may be
provided herein.
Section 9. Advancement of Expenses and Costs. All reasonable expenses and costs incurred by
Indemnitee (including attorneys’ fees, retainers and advances of disbursements required of
Indemnitee) shall be paid by the Company in advance of the final disposition of such action, suit
or proceeding at the request of Indemnitee within twenty days after the receipt by the Company of a
statement or statements from Indemnitee requesting such advance or advances from time to time.
Indemnitee’s entitlement to such expenses shall include those incurred in connection with any
proceeding by Indemnitee seeking an adjudication pursuant to this Agreement. Such statement or
statements shall reasonably evidence the expenses and costs incurred by him in connection therewith
and shall include or be accompanied by an undertaking by or on behalf of Indemnitee to repay such
amount if it is ultimately determined that Indemnitee is not entitled to be indemnified against
such expenses and costs by the Company as provided by this Agreement or otherwise.
Section 10. Remedies of Indemnitee in Cases of Determination not to Indemnify or to Advance
Expenses. In the event that a determination is made that Indemnitee is not entitled to
indemnification hereunder or if payment has not been timely made following a determination of
entitlement to indemnification pursuant to Sections 7 and 8, or if expenses are not advanced
pursuant to Section 9, Indemnitee shall be entitled to a final adjudication in an appropriate court
of the State of Delaware or any other court of competent jurisdiction of Indemnitee’s entitlement
to such indemnification or advance. The Company shall not oppose Indemnitee’s right to seek any
such adjudication. Such judicial proceeding shall made de novo and Indemnitee shall not be
prejudiced by reason of a determination (if so made) that Indemnitee is not entitled to
indemnification. If a determination is made or deemed to have been made pursuant to the terms of
Section 7 or Section 8 hereof that Indemnitee is entitled to indemnification, the Company shall be
bound by such determination and is precluded from asserting that such determination has not been
made or that the procedure by which such determination
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was made is valid, binding and enforceable. The Company further agrees to stipulate in any
such court that the Company is bound by all the provisions of this Agreement and is precluded from
making any assertion to the contrary. If the court shall determine that Indemnitee is entitled to
any indemnification hereunder, the Company shall pay all reasonable expenses (including attorneys’
fees) and costs actually incurred by Indemnitee in connection with such adjudication (including,
but not limited to, any appellate proceedings).
Section 11. Other Rights to Indemnification. The indemnification and advancement of expenses
(including attorneys’ fees) provided by this Agreement shall not be deemed exclusive of any other
rights to which Indemnitee may now or in the future be entitled under any provision of the
Company’s Certificate of Incorporation or By-Laws, any agreement, a vote of stockholders or of the
Disinterested Directors, any provision of law or otherwise.
Section 12. Attorneys’ Fees and Other Expenses to Enforce Agreement. In the event that
Indemnitee is subject to or intervenes in any proceeding in which the validity or enforceability of
this Agreement is at issue or seeks an adjudication or award in arbitration to enforce Indemnitee’s
rights under, or to recover damages for breach of, this Agreement, Indemnitee, if Indemnitee
prevails in whole or in part in such action, shall be entitled to recover from the Company, and
shall be indemnified by the Company against, any actual expenses for attorneys’ fees and
disbursements reasonably incurred by him.
Section 13. Duration of Agreement. This Agreement shall continue until and terminate upon the
later of (a) 10 years after Indemnitee has ceased to occupy any of the positions or have any of the
relationships described in Section 3 or 4 of this Agreement or (b) the final termination of all
pending or threatened actions, suits, proceedings or investigations with respect to Indemnitee.
This Agreement shall be binding upon the Company and its successors and assigns and shall inure to
the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors,
administrators or other legal representatives.
Section 14. Supersedes Prior Agreements. This Agreement replaces and supersedes any other
agreement or agreements, oral or written, that the Company may have with Indemnitee with respect to
the subject matter covered by this Agreement.
Section 15. 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, 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 (b) 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.
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:
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(a) “Disinterested Director” shall mean a director of the Company who is not or was not a
party to the action, suit, investigation or proceeding in respect of which indemnification is being
sought by Indemnitee.
(b) “Independent Counsel” shall mean a law firm or a member of a law firm that neither is
presently nor in the past five years has been retained to represent (i) the Company or Indemnitee
in any matter material to either such party or (ii) any other party to the action, suit,
investigation or 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 right to
indemnification under this Agreement.
(c) “other entity” shall include employee benefit plans, references to “fines” shall include
any excise taxes assessed on a person with respect to any employee benefit plan; and 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, agent or fiduciary with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in manner such person reasonably believed
to be in the interest 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 Company”.
Section 19. 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 20. 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 matter which may be subject to indemnification covered hereunder, either
civil, criminal or investigative.
Section 21. Notices. Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given (a) upon personal
delivery to the party to be notified, (b) on the fifth business day after deposit with the United
States Post Office, by registered or certified mail, postage prepaid, (c) on the next business day
after dispatch via nationally recognized overnight courier or (d) upon confirmation by the party to
be put on notice of receipt of transmission by facsimile, all addressed to the party to be notified
at the address indicated for such party below, or at such other address as such party may designate
by ten (10) days’ advance written notice to the other parties. Notices should be provided in
accordance with this Section at the following addresses:
| (a) | if to Indemnitee, to: |
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| (b) | if to the Company, to: |
||
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Section 22. Governing Law. The parties agree that this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first
above written.
| DEVRY INC. |
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| By: | ||||
| INDEMNITEE |
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