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EXHIBIT 10.1
Each of the following Indemnification Agreements has been omitted from
Exhibit 10.1 pursuant to Instruction 2 to Item 601 of Regulation S-K.
Indemnification Agreement, dated March 5, 1998, by and between webMethods,
Inc. and Xxxxxxx Xxxxx.
Indemnification Agreement, dated March 5, 1998, by and between webMethods,
Inc. and Xxxx Xxxxxxxx.
Indemnification Agreement, dated March 5, 1998, by and between webMethods,
Inc. and Xxxx X. Xxxxx.
Indemnification Agreement, dated March 5, 1998, by and between webMethods,
Inc. and Xxxxxx X. Xxxx.
Indemnification Agreement, dated April 17, 1998, by and between webMethods,
Inc. and Xxxxx Xxxxxx.
Indemnification Agreement, dated September 1998, by and between webMethods,
Inc. and Xxxxxxx X. Xxxxxxxxx.
Indemnification Agreement, dated September 1998, by and between webMethods,
Inc. and Xxxxxx X. Xxxxx.
Indemnification Agreement, dated November 1999, by and between webMethods,
Inc. and Xxxxxx Xxxxx.
None of the Indemnification Agreements listed above differ from the filed
Indemnification Agreement as to any material term other than as to the
Indemnitee and the date of the agreement. The Registrant agrees to file copies
of the agreements listed above if requested to do so by the Commission.
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INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made as of the 5th
day of March, 1998, by and between WEBMETHODS, INC., a Delaware corporation (the
"Corporation"), and Xxxxxxx Xxxxxxx ("Indemnitee"), a director and/or officer of
the Corporation.
RECITALS
A. It is essential to the Corporation to retain and attract as
directors and officers of the Corporation the most
B. The substantial increase in corporate litigation subjects
directors and officers to expensive litigation risks at the same time that the
availability of directors' and officers' liability insurance has been severely
limited.
C. It is the express policy of the Corporation to indemnify directors
and executive officers of the Corporation so as to provide them with the maximum
possible protection permitted by law.
D. Indemnitee does not regard the protection available under the
Delaware General Corporation Law or the Bylaws of the Corporation as adequate in
the present circumstances, and may not be willing to serve as a director or
officer without adequate protection, and the Corporation desires Indemnitee to
continue to serve in such capacity.
AGREEMENTS
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 and/or 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, investigation or proceeding, and any appeal thereof;
whether brought by or in the right of the Corporation or otherwise and whether
civil, criminal, administrative or investigative, and/or any inquiry or
investigation, in which Indemnitee may be or may have been involved as a party
or otherwise, or that Indemnitee in good faith believes might lead to the
institution of any such proceeding, by reason of the fact that Indemnitee is or
was a director or officer of the Corporation, by reason of any action taken by
him or of any inaction on his part while acting as such a director or officer,
or by reason of the fact that he is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise; in each case whether or
not he is acting or serving in any such capacity at the
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time any liability or expense is incurred for which indemnification or
reimbursement can be provided under this Agreement.
(b) The term "Expenses" shall include, without limitation,
expenses, costs and obligations, paid or incurred, of investigations, judicial
or administrative proceedings or appeals, amounts paid in settlement by or on
behalf of Indemnitee, attorneys' fees and disbursements and any expenses
reasonably and actually incurred in establishing a right to indemnification
under Section 8 of this Agreement [including, without limitation, those incurred
in investigating, defending, being a witness in or participating in (including
on appeal), or preparing to defend with respect to any claim, issue or matter
relating thereto or in connection therewith], but shall not include the amount o
f judgments, fines or penalties against Indemnitee.
(c) A "Change in Control" shall be deemed to have occurred if,
after the date hereof, there is any transaction or series of transactions within
any twelve (12)-month period, including, without limitation, a merger,
consolidation or exchange of securities, in which the holders of all of the
Corporation's outstanding voting securities immediately prior to the
consummation of such transaction or the first transaction of such series of
transactions do not own, directly or indirectly, a majority of the combined
voting power of the Corporation's outstanding securities upon consummation of
such transaction or series of such transactions.
(d) The term "Independent Legal Counsel" shall include any
attorney or firm of attorneys, selected in accordance with Section 5 hereof, who
shall not have otherwise performed services for the Corporation or the
Indemnitee within the five years prior to the date of selection (other than with
respect to matters concerning the rights of Indemnitee under this Agreement, or
of other Indemnitees under similar indemnification agreements).
(e) 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. Indemnity in Third-Party Proceedings. The Corporation shall
indemnify Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee is a party to or threatened to be made a party to any Proceeding
(other than a Proceeding by or in the right of the Corporation to procure a
judgment in its favor) by reason of the fact that Indenmnitee is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise, against all
Expenses,
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judgments, fines and penalties actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of such Proceeding, but only if he
acted in good faith and in a manner which he reasonably believed to be (in the
case of conduct in his official capacity) in the best interests of the
Corporation or (in all other cases) not opposed to the best interests of the
Corporation, and, in the case of a criminal action or proceeding, in addition,
had no reasonable cause to believe that his conduct was unlawful. The
termination of any such Proceeding by judgment, order of court, settlement,
conviction, or upon a plea of nob contendere, or its equivalent, shall not, of
itself, create a presumption that Indeninitee did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation (or that Indemnitee did not meet any other
particular standard of conduct or have any other particular belief or that a
court has determined that indemnification is not permitted by applicable law),
and with respect to any criminal proceeding, that such person had reasonable
cause to believe that his conduct was unlawful.
4. Indemnitee in Proceedings by or in the Right of the Corporation.
The Corporation shall indemnify Indemnitee in accordance with the provisions of
this Section 4 if Indemnitee is a party to or threatened to be made a party to
any Proceeding by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that Indemnitee is or was a director or officer
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise, against all Expenses actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of such
Proceeding, but only if he acted in good faith and in a manner which he
reasonably believed to be (in the case of conduct in his official capacity) in
the best interests of the Corporation or (in all other cases) not opposed to the
best interests of the Corporation, except that no indemnification for Expenses
shall be made under this Section 4, in respect of any Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Corporation, unless and
only to the extent that any court in which such 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 indemnity for such expenses as such court shall deem proper.
Notwithstanding the foregoing, Indemnitee shall have no right to indemnification
for Expenses and the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended.
5. Change in Control. The Corporation agrees that in the event of a
Change in Control, and with respect to all matters thereafter arising concerning
the rights of Indemnitee to indemnification and payment of Expenses under this
Agreement or any other agreement to which the Corporation and Indemnitee are
parties or the Bylaws of the Corporation as hereafter in effect relating to
indemnification of directors and/or officers of the Corporation, the Corporation
shall seek legal advice only from the Independent Legal Counsel selected by
Indemnitee and approved by the Corporation (which approval shall not be
unreasonably withheld). Such counsel, among other things, shall render its
written opinion to the Corporation and Indemnitee as to whether and to what
extent the Indemnitee would be permitted to be indemnified under applicable law.
The Corporation
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agrees to pay the reasonable fees of the Independent Legal Counsel referred to
above and to indemnify fully such counsel against any and all expenses
(including attorney's fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
6. Indemnification Prohibited. Notwithstanding the provisions of
Sections 3 and 4, no indemnification shall be made in connection with any
Proceeding charging improper personal benefit to the Indemnitee, whether or not
involving action in his official capacity, in which he was adjudged liable on
the basis that personal benefit was improperly received by him.
7. Indemnification of Expenses of Successful Party. Notwithstanding
any other provision of this Agreement whatsoever, to the extent that Indemnitee
has been successful on the merits or otherwise (including a settlement) in
defense of any Proceeding or in defense of any claim, issue or matter therein,
including dismissal without prejudice, Indemnitee shall be indemnified against
all Expenses reasonably and actually incurred in connection therewith.
8. Advances of Expenses. Expenses incurred by the Indemnitee pursuant
to Sections 3 and 4 in any Proceeding shall be paid by the Corporation in
advance as soon as practicable but not later than three business days after
receipt of the written request of the Indemnitee provided that Indemnitee shall
(i) affirm in such written request that he acted in good faith and in a manner
which he reasonably believed to be (in the case of conduct in his official
capacity) in the best interests of the Corporation or (in all other cases) not
opposed to the best interests of the Corporation and (ii) undertake to repay
such amount to the extent that it is ultimately determined that Indemnitee is
not entitled to indemnification, and further provided that a determination has
been made that the facts then known would not preclude indemnification pursuant
to the terms of this Agreement.
9. Right of Indemnitee to Indemnification Upon Application; Procedure
Upon Application.
(a) Any indemnification under Sections 3 and 4 shall be made as
soon as practicable but in any event no later than 30 days after receipt by the
Corporation of the written request of Indemnitee.
(b) The right to indemnification or advances as provided by
this Agreement shall be enforceable by Indemnitee in any court of competent
jurisdiction. The burden of proving that indemnification or advances are not
appropriate shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or stockholders)
to have made a determination prior to the commencement of such action that
indemnification or advances are proper in the circumstances because Indemnitee
has met the applicable standard of conduct, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or
stockholders) that Indemnitee has not met such applicable standard 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 reasonably
incurred in
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connection with successfully establishing Indemnitee's right to indemnification
or advances, in whole or in part, in any such Proceeding shall also be
indemnified by the Corporation.
(c) The Corporation shall not be liable under this Agreement to
make any payment in connection with any claim made against Indemnitee to the
extent Indemnitee has otherwise actually received payment (under any insurance
policy, Bylaw or otherwise) of the amounts otherwise indemnifiable.
10. Indemnification Hereunder Not Exclusive.
(a) Notwithstanding any other provision of this Agreement, the
Corporation hereby agrees to indemnify the Indemnitee to the full extent
permitted by law, whether or not such indemnification is specifically authorized
by the other provisions of this Agreement, the Corporation's Certificate of
Incorporation, the Bylaws, or by statute. In the event of any changes, after the
date of this Agreement, in any applicable law, statute, or rule which expand the
right of a Delaware corporation to indemnify a member of its board of directors
or any officer, such changes shall be, ipso facto, within the purview of
Indemnitee's rights, and Corporation's obligations, under this Agreement. In the
event of any changes in any applicable law, statute, or rule which narrow the
right of a Delaware corporation to indemnify a member of its board of directors
or any officer, such changes, to the extent not otherwise required by such law,
statute or rule to be applied to this Agreement, shall have no effect on this
Agreement or the parties' rights and obligations hereunder.
(b) The indemnification provided by this Agreement shall not be
deemed exclusive of any other rights to which Indemnitee may be entitled under
the Certificate of Incorporation, the Bylaws, any agreement, any vote of
shareholders or disinterested directors, the laws of the State of Delaware, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
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 or penalties actually and reasonably
incurred by him in the investigation, defense, appeal or settlement of any
Proceeding but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such Expenses, judgments,
fines or penalties to which Indemnitee is entitled. Moreover, notwithstanding
any other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any or all claims, issues or
matters relating in whole or in part to an indemnifiable event, occurrence or
matter hereunder, including dismissal without prejudice, Indemnitee shall be
indemnified against all Expenses incurred in connection with such defenses.
12. Effect of Federal Law. Both the Company and the indemnitee
acknowledge that in certain instances, federal law will override Delaware law
and prohibit the Corporation from indemnifying its offices and directors. For
example, the Corporation and Indemnitee acknowledge that the Securities and
Exchange Commission has taken the position that indemnification is not
permissible for liabilities arising under
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certain federal securities law, and federal law prohibits indemnification for
certain violations of the Employee Retirement Income Security Act.
13. Liability Insurance.
(a) The Corporation shall from time to time make the good faith
determination whether or not it is practicable for the Corporation to obtain and
maintain a policy or policies of insurance with reputable insurance companies
providing the officers and directors with coverage for losses from wrongful
acts, or to ensure the Corporation's performance of its indemnification
obligations under this Agreement. Among other considerations, the Corporation
will weigh the costs of obtaining such insurance against the protection afforded
by such coverage.
(b) Indemnitee hereby releases the Corporation and its
respective authorized representatives from any claims for indemnification
hereunder if and to the extent that Indemnitee receives proceeds from any
liability insurance policy or other third-party source in payment or
reimbursement for such claims. Indemnitee hereby agrees to assign all proceeds
Indemnitee receives under any such insurance policy or third-party agreement to
the extent of the amount of indemnification made to Indemnitee under the terms
of this Agreement. Finally, Indemnitee shall cause each insurance policy or
other third-party agreement by which the Indemnitee may be entitled to payment
or reimbursement to provide that the insurance company or the third-party
agreement by which the Indemnitee may be entitled to payment or reimbursement to
provide that the insurance company or the third party waives all right of
recovery by way of subrogation against the Corporation in connection with any
claim for indemnification under this Agreement. If such waiver of subrogation
cannot be obtained except with the payment of additional sums in premiums or
otherwise, the Indemnitee shall notify the Corporation of this fact. The
Corporation shall then have ten (10) days after receiving such notice to agree
to pay such additional sums. If a waiver of subrogation rights is not obtainable
at any price or if the Corporation shall fail to agree to pay such additional
sums, Indemnitee shall be relieved of the obligation to obtain the waiver of
subrogation rights with respect to any particular insurance policy or
third-party agreement.
14. Saving Clause. Nothing in this Agreement is intended to require or
shall be construed as requiring the Corporation to do or fail to do any act in
violation of applicable law. The provisions of this Agreement (including any
provision within a single section, paragraph or sentence) shall be severable in
accordance with this Section 14. If this Agreement or any portion thereof shall
be invalidated on any ground by any court of competent jurisdiction, the
Corporation shall nevertheless indemnify Indemnitee as to Expenses, judgments,
fines and penalties with respect to any Proceeding to the full extent permitted
by any applicable portion of this agreement that shall not have been invalidated
or by any other applicable law, and this Agreement shall remain enforceable to
the fullest extent permitted by law.
15. Notice. Indemnitee shall, as a condition precedent to his right to
be indemnified under this Agreement, give to the Corporation notice in writing
as soon as practicable of any claim made against him for which indemnity will or
could be sought under this Agreement. Notice to the Corporation shall be
directed to the President of the
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Corporation at its principal executive offices. All notices, requests, demands
and other communications shall be deemed received three days after the date
postmarked if (i) delivered by hand and receipted for by the party to whom such
notice or other communication shall have been directed, or (ii) sent by prepaid
mail, properly addressed. In addition, Indemnitee shall give the Corporation
such information and cooperation as it may reasonably require and shall be
within Indemnitee's power.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
17. Applicable Law. This Agreement shall be governed by and construed
in accordance with the substantive laws of the State of Delaware without giving
effect to its rules of conflicts of laws.
18. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns (including any direct or indirect successors by purchase,
merger, consolidation or otherwise to all or substantially all of the business
and/or assets of the Corporation), spouses, heirs, and personal and legal
representatives. The Corporation shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all or a substantial part, of the business and/or assets of the
Corporation, by written agreement in form and substance satisfactory to the
Indemnitee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Corporation would be required to perform
if no such succession had taken place. This Agreement shall continue in effect
regardless of whether Indemnitee continues to serve as a director and/or officer
of the Corporation or of any other enterprise.
19. Attorneys' Fees. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms hereof,
Indemnitee shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees and disbursements, incurred by Indemnitee with
respect to such action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by Indeninitee
as a basis for such action were not made in good faith or were frivolous. In the
event of an action instituted by or in the name of the Corporation under this
Agreement or to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and expenses, including
attorneys' fees and disbursements, incurred by Indemnitee in defense of such
action (including with respect to Indemnitee's counterclaims and crossclaims
made in such action), unless as a part of such action the court determines that
each of Indemnitee's material defenses to such action were made in bad faith or
were frivolous.
20. Subsequent Instruments and Acts. The parties hereto agree that
they will execute any further instrument and perform any acts that may become
necessary from time to time to carry out the terms of this Agreement.
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21. Limitations Period. No legal action shall be brought and no cause
of action shall be asserted by or in the right of the Corporation or any
affiliate of the Corporation against Indemnitee, Indemnitee's spouse, heirs,
executors or personal or legal representatives after the expiration of two years
from the date of accrual of such cause of action, and any claim or cause of
action of the Corporation or its affiliates shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action such shorter period shall
govern.
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
duly executed and signed as of the day and year first above written.
WEBMETHODS, INC.
a Delaware corporation
By:
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INDEMNITEE:
/s/ Xxxxxxx Xxxxxxx
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