FORM OF DIRECTOR INDEMNIFICATION AGREEMENT
Exhibit 10.35
This Director Indemnification Agreement (“Agreement”) is made as of March [___], 2010
by and between SS&C Technologies Holdings, Inc., a Delaware corporation (the “Company”),
and (“Indemnitee”).
RECITALS:
WHEREAS, directors, officers, and other persons in service to corporations or business
enterprises are being increasingly subjected to expensive and time-consuming litigation relating
to, among other things, matters that traditionally would have been brought only against the Company
or business enterprise itself;
WHEREAS, highly competent persons have become more reluctant to serve as directors or in other
capacities unless they are provided with adequate protection through insurance and adequate
indemnification against inordinate risks of claims and actions against them arising out of their
service to and activities on behalf of the corporation;
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 and its stockholders and that the Company should act to assure such persons that
there will be increased certainty of such protection in the future;
WHEREAS, (i) the Certificate of Incorporation of the Company requires indemnification of the
officers and directors of the Company, (ii) Indemnitee may also be entitled to indemnification
pursuant to the General Corporation Law of the State of Delaware (“DGCL”) and (iii) the
Certificate of Incorporation and the DGCL expressly provide that the indemnification provisions set
forth therein are not exclusive and thereby contemplate that contracts may be entered into between
the Company and members of the board of directors, officers and other persons with respect to
indemnification;
WHEREAS, this Agreement is a supplement to and in furtherance of the Certificate of
Incorporation and any resolutions adopted pursuant thereto, and shall not be deemed a substitute
therefore, nor to diminish or abrogate any rights of Indemnitee thereunder, and
WHEREAS, (i) Indemnitee does not regard the protection available under the Certificate of
Incorporation and insurance as adequate in the present circumstances, (ii) Indemnitee may not be
willing to serve or continue to serve as a director without adequate protection, (iii) the Company
desires Indemnitee to serve in such capacity, and (iv) Indemnitee is willing to serve, continue to
serve and to take on additional service for or on behalf of the Company on the condition that he be
so indemnified.
AGREEMENT:
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. Definitions. (a) As used in this Agreement:
“Affiliate” of any specified Person shall mean any other Person controlling,
controlled by or under common control with such specified Person.
“Corporate Status” describes the status of a person who is or was a director,
officer, employee or agent of (i) the Company or (ii) any other corporation, limited
liability company, partnership or joint venture, trust, employee benefit plan or other
enterprise which such person is or was serving at the request of the Company.
“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.
“Enterprise” shall mean the Company and any other corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the request of the Company as a director, officer,
employee, agent or fiduciary.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Expenses” shall mean all reasonable costs, expenses, fees and charges (including
without limitation) 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. Expenses also shall include, without limitation, (i)
expenses incurred in connection with any appeal resulting from, incurred by Indemnitee in
connection with, arising out of respect of or relating to, any Proceeding, including without
limitation, the premium, security for, and other costs relating to any cost bond, supersedes
bond, or other appeal bond or its equivalent, (ii) for purposes of Section 12(d) only,
expenses incurred by Indemnitee in connection with the interpretation, enforcement or
defense of Indemnitee’s rights under this Agreement, by litigation or otherwise, (iii) any
federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or
deemed receipt of any payments under this Agreement, and (iv) any interest, assessments or
other charges in respect of the foregoing. Expenses, however, shall not include amounts paid
in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
“Indemnity Obligations” shall mean all obligations of the Company to Indemnitee
under this Agreement, including the Company’s obligations to provide indemnification to
Indemnitee and advance Expenses to Indemnitee under this Agreement.
“Independent Counsel” shall mean 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;
provided, however, that 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.
“Liabilities” means all claims, liabilities, damages, losses, judgments, orders,
fines, penalties and other amounts payable in connection with, arising out of, or in respect
of or relating to any Proceeding, including, without limitation, amounts paid in settlement
in any Proceeding and all costs and expenses in complying with any judgment, order or decree
issued or entered in
-2-
connection with any Proceeding or any settlement agreement, stipulation
or consent decree entered into or issued in settlement of any Proceeding.
“Person” shall mean any individual, corporation, partnership, limited partnership,
limited liability company, trust, governmental agency or body or any other legal entity.
“Proceeding” shall mean any threatened, pending or completed action, claim, suit,
arbitration, alternate dispute resolution mechanism, formal or informal hearing, inquiry or
investigation, litigation, inquiry, administrative hearing or any other actual, threatened
or completed judicial, administrative or arbitration proceeding (including, without
limitation, any such proceeding under the Securities Act of 1933, as amended, or the
Exchange Act or any other federal law, state law, statute or regulation), whether brought in
the right of the Company or otherwise, and whether of a civil, criminal, administrative or
investigative nature, in each case, in which Indemnitee was, is or will be, or is threatened
to be, involved as a party, witness or otherwise by reason of the fact that Indemnitee is or
was a director or officer of the Company, by reason of any actual or alleged action taken by
Indemnitee or of any action on Indemnitee’s 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, limited liability company,
partnership, joint venture, trust or other enterprise, in each case whether or not serving
in such capacity at the time any liability or expense is incurred for which indemnification,
reimbursement, or advancement of expenses can be provided under this Agreement.
[“Sponsor Entities” means TC Group, LLC, a Delaware limited liability company (“TC
Group”), and any Affiliate of TC Group.] 1
(b) For the purpose hereof, 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, its participants or beneficiaries; and a Person who acted in good faith and in a
manner he reasonably believed to be in the best interests of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in manner “not opposed to the best interests
of the Company” as referred to in this Agreement.
Section 2. Indemnity in Third-Party Proceedings. The Company shall
indemnify and hold harmless Indemnitee, to the fullest extent permitted by applicable law, from and
against all Liabilities and Expenses suffered or incurred by Indemnitee or on Indemnitee’s behalf
in connection with any Proceeding (other than any Proceeding brought by or in the right of the
Company to procure a judgment in its favor), or any claim, issue or matter therein, if Indemnitee
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, in the case of a criminal proceeding, had no reasonable cause to
believe that Indemnitee’s conduct was unlawful.
Section 3. Indemnity in Proceedings by or in the Right of the Company. The
Company shall indemnify and hold harmless Indemnitee, to the fullest extent permitted by applicable
law, from and against all Liabilities and Expenses suffered or incurred by Indemnitee or on
Indemnitee’s behalf in connection with such Proceeding brought by or in the right of the Company to
procure a judgment in its favor, or any claim, issue or matter therein, if Indemnitee acted in good
faith and in a manner he
| 1 | Bracketed provisions throughout agreement are applicable only to the three Carlyle directors. |
-3-
reasonably believed to be in or not opposed to the best interests of the
Company. No indemnification for Liabilities and Expenses shall be made under this Section 3 in
respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged by a
court to be liable to the Company, unless and only to the extent that the Delaware Court of
Chancery or any court in which the Proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee
is fairly and reasonably entitled to indemnification.
Section 4. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provisions of this Agreement, and without limiting the
rights of Indemnitee under any other provision hereof, to the fullest extent permitted by
applicable law, to the extent that (i) Indemnitee is a party to (or a participant in) or any
Proceeding, (ii) the Company is not permitted by applicable law to indemnify Indemnitee with
respect to any claim brought in such Proceeding if such claim is asserted successfully against
Indemnitee and (iii) Indemnitee is not wholly successful in such Proceeding but is successful, on
the merits or otherwise (including settlement thereof), as to one or more but less than all claims,
issues or matters in such Proceeding, then the Company shall indemnify Indemnitee against all
Liabilities and Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection with each successfully resolved claim, issue or matter. 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 5. Indemnification For Expenses of a Witness. Notwithstanding any
other provision of this Agreement, to the fullest extent permitted by applicable law and to the
extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a witness in any Proceeding
to which Indemnitee is not a party, he shall be indemnified against all Liabilities and Expenses
suffered or incurred by him or on his behalf in connection therewith.
Section 6. Additional Indemnification. Notwithstanding any limitation in
Sections 2, 3, or 4, the Company shall indemnify Indemnitee to the fullest extent permitted by
applicable law if Indemnitee is a party to or threatened to be made a party to any Proceeding
(including a Proceeding by or in the right of the Company to procure a judgment in its favor)
against all Liabilities and Expenses suffered or incurred by Indemnitee in connection with such
Proceeding:
(a) to the fullest extent permitted by the provision of the DGCL that authorizes or
contemplates additional indemnification by agreement, or the corresponding provision of any
amendment to or replacement of the DGCL, and
(b) to the fullest extent authorized or permitted by any amendments to or replacements of the
DGCL adopted after the date of this Agreement that increase the extent to which a corporation may
indemnify its officers and directors.
Section 7. Exclusions. Notwithstanding any provision in this Agreement,
the Company shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee:
(a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or
similar provisions of state statutory law or common law or (ii) any claim made against Indemnitee
for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or
equity-based compensation or of any profits realized by Indemnitee from the sale of securities of
the
-4-
Company, as required in each case under the Exchange Act (including any such reimbursements
that arise from an accounting restatement of the Company pursuant to Section 304 of the
Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits
arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the
Xxxxxxxx-Xxxxx Act); or
(b) except as provided in Section 12(d) of this Agreement, in connection with any Proceeding
(or any part of any Proceeding) initiated by Indemnitee [or any Sponsor Entity], including any
Proceeding (or any part of any Proceeding) initiated by Indemnitee [or any Sponsor Entity] against
the Company or its directors, officers, employees or other indemnitees, unless (i) the Board of
Directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its
initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to
the powers vested in the Company under applicable law.
Section 8. Advances of Expenses. In accordance with the pre-existing
requirement of Article EIGHTH of the Certificate of Incorporation, and notwithstanding any
provision of this Agreement to the contrary, the Company shall advance, to the extent not
prohibited by law, the Expenses incurred by Indemnitee in connection with any Proceeding, and such
advancement shall be made within thirty (30) days after the receipt by the Company of a statement
or statements requesting such advances from time to time, whether prior to or after final
disposition of any Proceeding. Advances shall be unsecured and interest free. 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 other provisions of this Agreement.
Advances shall include any and all Expenses incurred pursuing a Proceeding to enforce this right of
advancement, including Expenses incurred preparing and forwarding statements to the Company to
support the advances claimed. The Indemnitee shall qualify for advances upon the execution and
delivery to the Company of this Agreement, which shall constitute an undertaking providing that the
Indemnitee undertakes to repay the advance to the extent that it is ultimately determined that
Indemnitee is not entitled to be indemnified by the Company. This Section 8 shall not apply to any
claim made by Indemnitee for which indemnity is excluded pursuant to Section 7.
Section 9. Procedure for Notification and Defense of Claim.
(a) Indemnitee shall notify the Company in writing of any Proceeding with respect to which
Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as
reasonably practicable following the receipt by Indemnitee of written notice thereof. The written
notification to the Company shall include a description of the nature of the Proceeding and the
facts underlying the Proceeding. 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 following the final
disposition of such action, suit or proceeding. Any delay or failure by Indemnitee to notify the
Company hereunder will not relieve the Company from any liability which it may have to Indemnitee
hereunder or otherwise than under this Agreement, and any delay or failure in so notifying the
Company shall not constitute a waiver by Indemnitee of any rights
under this Agreement. 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) In the event Indemnitee is entitled to indemnifications and/or advancement of Expenses
with respect to any Proceeding, Indemnitee may, at Indemnitee’s option, (i) retain counsel selected
by Indemnitee and approved by the Company (which approval shall not to be unreasonably withheld,
conditioned or delayed) to defend Indemnitee in such Proceeding, at the sole expense of the
-5-
Company, or (ii) have the Company assume the defense of Indemnitee in such Proceeding, in which
case the Company shall assume the defense of such Proceeding with counsel selected by the Company
and approved by Indemnitee (which approval shall not be unreasonably withheld, conditioned or
delayed) within ten (10) days of the Company’s receipt of written notice of Indemnitee’s election
to cause the Company to do so. If the Company is required to assume the defense of any such
Proceeding, it shall engage legal counsel for such defense, and the Company shall be solely
responsible for all fees and expenses of such legal counsel and otherwise of such defense. Such
legal counsel may represent both Indemnitee and the Company (and/or any other party or parties
entitled to be indemnified by the Company with respect to such matter) unless, in the reasonable
opinion of legal counsel to Indemnitee, there is a conflict of interest between Indemnitee and the
Company (or any other such party or parties) or there are legal defenses available to Indemnitee
that are not available to the Company (or any such other party or parties). Notwithstanding either
party’s assumption of responsibility for defense of a Proceeding, each party shall have the right
to engage separate counsel at its own expense. The party having responsibility for defense of a
Proceeding shall provide the other party and its counsel with all copies of pleadings and material
correspondence relating to the proceeding. Indemnitee and the Company shall reasonably cooperate
in the defense of any Proceeding with respect to which indemnification is sought hereunder,
regardless of whether the Company or Indemnitee assumes the defense thereof. Indemnitee may not
settle or compromise any Proceeding without the prior written consent of the Company, which consent
shall not be unreasonably withheld, conditioned or delayed. The Company may not settle or
compromise any proceeding in any manner which would impose any penalty or limitation on Indemnitee
without the prior written consent of Indemnitee, which consent shall not be unreasonably withheld,
conditioned or delayed.
Section 10. Procedure Upon Application for Indemnification.
(a) Upon written request by Indemnitee for indemnification pursuant to Section 9(a), if any
determination by the Company is required by applicable law with respect to Indemnitee’s entitlement
thereto, such determination shall be made (i) if Indemnitee shall request such determination be
made by Independent Counsel, by Independent Counsel, and (ii) in all other circumstances (A) by a
majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a
committee of Disinterested Directors designated by a majority vote of the Disinterested Directors,
even though less than a quorum of the Board, (C) 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 (D) 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. The Company will not
deny any written request for indemnification hereunder made in good faith by Indemnitee unless a
determination as to Indemnitee’s entitlement to such indemnification described in this Section
10(a) has been made. 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.
-6-
(b) In the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 10(a) hereof, (i) the Independent Counsel shall be selected
by the Company within ten (10) days of the Submission Date (the cost of each such counsel to be
paid by the Company), (ii) shall give written notice to Indemnitee advising it of the identity of
the Independent Counsel so selected and (iii) Indemnitee may, within ten (10) days after such
written notice of selection shall have been given, deliver to the Company Indemnitee’s written
objection to such selection. Absent a timely objection, the person so selected shall act as
Independent Counsel. If a written objection is so made by Indemnitee, the Independent Counsel so
selected may not serve as Independent Counsel unless and until such objection is withdrawn. If no
Independent Counsel shall have been selected and not objected to before the later of (i) thirty
(30) days after the later of submission by Indemnitee of a written request for indemnification
pursuant to Section 10(a) hereof (the “Submission Date”) and (ii) ten (10) days after the
final disposition of the Proceeding, each of the Company and Indemnitee shall select a law firm or
member of a law firm meeting the qualifications to serve as Independent Counsel, and such law firms
or members of law firms shall select the Independent Counsel. Upon the due commencement of any
judicial proceeding or arbitration pursuant to Section 12(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).
Section 11. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the
person, persons or entity making such determination shall, to the fullest extent not prohibited by
law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has
submitted a request for indemnification in accordance with Section 9(a) of this Agreement, and the
Company shall, to the fullest extent not prohibited by law, 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) Subject to Section 12(e), if the person, persons or entity empowered or selected under
Section 10 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
therefore, the requisite determination of entitlement to indemnification shall, to the fullest
extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent 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
(i) the determination is to be made by Independent Counsel and Indemnitee objects to the Company’s
selection of Independent Counsel and (ii) the Independent Counsel ultimately selected requires such
additional time for the obtaining or evaluating of documentation and/or information relating
thereto.
(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) 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
-7-
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 Indemnitee’s conduct was unlawful.
(d) To the greatest extent permitted by law, settlement of any Proceeding without any finding
of responsibility, wrongdoing or guilt on the part of the Indemnitee with respect to claims
asserted in such Proceeding shall constitute a presumption that Indemnitee has been successful on
the merits with respect to such Proceeding. Anyone seeking to overcome this presumption shall have
the burden of proof and the burden of persuasion by clear and convincing evidence.
(e) 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 11(e) 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.
(f) The knowledge and/or actions, or failure to act, of any other 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 12. Remedies of Indemnitee.
(a) Subject to Section 12(e), in the event that (i) a determination is made pursuant to
Section 10 of this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 of this Agreement,
(iii) no determination of entitlement to indemnification shall have been made pursuant to Section
10(a) of this Agreement within ninety (90) days after receipt by the Company of the request for
indemnification, (iv) payment of indemnification is not made pursuant to Section 4 or 5 or the last
sentence of Section 10(a) of this Agreement within ten (10) days after receipt by the Company of a
written request therefore, (v) payment of indemnification pursuant to Section 2, 3 or 6 of this
Agreement is not made within ten (10) days after a determination has been made that Indemnitee is
entitled to indemnification, or (vi) in the event that the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable, or institutes any
litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the
benefits provided or intended to be provided to the Indemnitee hereunder, Indemnitee shall be
entitled to an adjudication by a court of Indemnitee’s entitlement to such indemnification and/or
advancement of Expenses. Alternatively, Indemnitee, at
Indemnitee’s 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. 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 10(a) of this
Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 12 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 12 the Company shall have the
-8-
burden of proving Indemnitee is not entitled
to indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to Section 10(a) 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 12, absent a prohibition of
such indemnification under applicable law.
(d) The Company shall, to the fullest extent not prohibited by law, be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 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. It is the intent of the Company that the Indemnitee not be required
to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of
Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and expense
thereof would substantially detract from the benefits intended to be extended to the Indemnitee
hereunder. The Company shall indemnify Indemnitee against any and all Expenses and, if requested
by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request
therefore) advance, to the extent not prohibited by law, such Expenses to Indemnitee, which are
incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or
advance of Expenses from the Company under this Agreement or under any directors’ and officers’
liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately
is determined to be entitled to such indemnification, advancement of Expenses or insurance
recovery, as the case may be.
(e) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding; provided that, in absence of any such determination with respect to
such Proceeding, the Company shall pay Liabilities and advance Expenses with respect to such
Proceeding if the Company has determined the Indemnitee to be entitled to indemnification and
advancement of Expenses with respect to such Proceeding.
Section 13. 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 Certificate of Incorporation, 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 Indemnitee’s
Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in
Delaware law, whether by statute or
judicial decision, permits greater indemnification or advancement of Expenses than would be
afforded currently under the Certificate of Incorporation and/or 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.
-9-
(b) [The Company hereby acknowledges that Indemnitee may have certain rights to
indemnification, advancement of Expenses and/or insurance provided by one or more Persons with whom
or which Indemnitee may be associated (including, without limitation, any Sponsor Entity). The
Company hereby acknowledges and agrees that (i) the Company shall be the indemnitor of first resort
with respect to any Proceeding, Expense, Liability or matter that is the subject of the Indemnity
Obligations, (ii) the Company shall be primarily liable for all Indemnification Obligations and any
indemnification afforded to Indemnitee in respect of any Proceeding, Expense, Liability or matter
that is the subject of Indemnity Obligations, whether created by law, organizational or constituent
documents, contract (including this Agreement) or otherwise, (iii) any obligation of any other
Persons with whom or which Indemnitee may be associated (including, without limitation, any Sponsor
Entity) to indemnify Indemnitee and/or advance Expenses to Indemnitee in respect of any proceeding
shall be secondary to the obligations of the Company hereunder, (iv) the Company shall be required
to indemnify Indemnitee and advance Expenses to Indemnitee hereunder to the fullest extent provided
herein without regard to any rights Indemnitee may have against any other Person with whom or which
Indemnitee may be associated (including, any Sponsor Entity) or insurer of any such Person and (v)
the Company irrevocably waives, relinquishes and releases any other Person with whom or which
Indemnitee may be for associated (including, without limitation, any Sponsor Entity) from any claim
of contribution, subrogation or any other recovery of any kind in respect of amounts paid by the
Company hereunder. In the event any other Person with whom or which Indemnitee may be associated
(including, without limitation, any Sponsor Entity) or their insurers advances or extinguishes any
liability or loss which is the subject of any Indemnity Obligation owed by the Company or payable
under any insurance policy provided under this Agreement, the payor shall have a right of
subrogation against the Company or its insurer or insurers for all amounts so paid which would
otherwise be payable by the Company or its insurer or insurers under this Agreement. In no event
will payment of an Indemnity Obligation by any other Person with whom or which Indemnitee may be
associated (including, without limitation, any Sponsor Entity) or their insurers affect the
obligations of the Company hereunder or shift primary liability for any Indemnity Obligation to any
other Person with whom or which Indemnitee may be associated (including, without limitation, any
Sponsor Entity). Any indemnification and/or insurance or advancement of Expenses provided by any
other Person with whom or which Indemnitee may be associated (including, without limitation, any
Sponsor Entity) with respect to any liability arising as a result of Indemnitee’s Corporate Status
or capacity as an officer or director of any Person is specifically in excess over any Indemnity
Obligation of the Company or valid and any collectible insurance (including but not limited to any
malpractice insurance or professional errors and omissions insurance) provided by the Company under
this Agreement, and any obligation to provide indemnification and/or insurance or advance Expenses
provided by any other Person with whom or which Indemnitee may be associated (including, without
limitation, any Sponsor Entity) shall be reduced by any amount that Indemnitee collects from
the Company as an indemnification payment or advancement of Expenses pursuant to this Agreement.] 2
(c) To the extent 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
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 of the receipt of a notice of a claim pursuant to the terms hereof, the Company has
director and officer liability 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
| 2 | Applicable only to the three Carlyle directors. |
-10-
thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding
in accordance with the terms of such policies.
(d) In the event of any payment under this Agreement, the Company shall not be subrogated to
the rights of recovery of Indemnitee, [including rights of indemnification provided to Indemnitee
from any other person or entity with whom Indemnitee may be associated (including, without
limitation, any Sponsor Entity)]; provided, however, that the Company shall be
subrogated to the extent of any such payment of all rights of recovery of Indemnitee under
insurance policies of the Company or any of its subsidiaries, and Indemnitee shall use commercially
reasonable efforts to take all action necessary as reasonably requested by the Company to secure
such rights.
(e) [Except as provided in Section 13(b),] 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.
(f) The indemnification and contribution provided for in this Agreement will remain in full
force and effect regardless of any investigation made by or on behalf of Indemnitee.
Section 14. Duration of Agreement; Not Employment Contract. This Agreement
shall continue until and terminate upon the latest of: (i) ten (10) years after the date that
Indemnitee shall have ceased to serve as a director of the Company or any other Enterprise and (ii)
one (1) year after the final termination of any Proceeding then pending 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 12 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 Indemnitee’s heirs, executors and administrators. This Agreement shall
not be deemed an employment contract between the Company (or any of its subsidiaries or any
Enterprise) and Indemnitee. Indemnitee specifically acknowledges that Indemnitee’s employment with
the Company (or any of its subsidiaries or any Enterprise), 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 or any Enterprise), other applicable formal severance policies duly adopted by the
Board, or, with respect to service as a director of the Company, by the Certificate of
Incorporation and the DGCL.
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, 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 16. Enforcement.
-11-
(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 serve as a director
or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as a director or officer of the Company.
(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; provided, however,
that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation and
applicable law, and shall not be deemed a substitute therefore, nor to diminish or abrogate any
rights of Indemnitee thereunder.
Section 17. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by the parties thereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions of this Agreement nor shall any waiver constitute a continuing waiver.
Section 18. Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to have been duly given
if (a) delivered by hand and receipted for by the party to whom said notice or other communication
shall have been directed, (b) mailed by certified or registered mail with postage prepaid, on the
third business day after the date on which it is so mailed, (c) mailed by reputable overnight
courier and receipted for by the party to whom said notice or other communication shall have been
directed or (d) sent by facsimile transmission, with receipt of oral confirmation that such
transmission has been received:
(a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or
such other address as Indemnitee shall provide to the Company.
(b) If to the Company to
SS&C Technologies Holdings, Inc.
00 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
00 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
or to any other address as may have been furnished to Indemnitee by the Company.
Section 19. Contribution. To the fullest extent permissible under
applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee
for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the
amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid
or to be paid in settlement and/or for Expenses, in connection with any claim relating to an
indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in
light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits
received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving
cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors,
officers, employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).
-12-
Section 20. 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 12(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 “Delaware 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 Delaware Court for purposes of any action or
proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the
laying of venue of any such action or proceeding in the Delaware Court, and (iv) waive, and agree
not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court
has been brought in an improper or inconvenient forum.
Section 21. 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 22. [Third-Party Beneficiaries. The Sponsor Entities are intended
third-party beneficiaries of this Agreement and shall have all of the rights afforded to Indemnitee
under this Agreement.]
Section 23. Miscellaneous. Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate. 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.
-13-
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year
first above written.
| SS&C TECHNOLOGIES HOLDINGS, INC. | INDEMNITEE | |||||||||
By:
|
||||||||||
Name:
|
Name: | |||||||||
Office:
|
Address: | |||||||||
-14-
