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EXHIBIT 10.19
FORM OF
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, effective as of ____________, 1999,
between WITNESS SYSTEMS, INC., a Delaware corporation (the "Corporation") and
_____________ ("Indemnitee").
W I T N E S S E T H:
WHEREAS, Indemnitee, a member of the Board of Directors and/or an
officer of the Corporation, performs a valuable service in such capacity for the
Corporation; and
WHEREAS, in order to induce Indemnitee to continue to serve as a
Director and/or an officer of the Corporation, the Corporation has determined
and agreed to enter into this Agreement with Indemnitee.
NOW, THEREFORE, in consideration of Indemnitee's continued service as a
Director/and or an officer after the date hereof, the parties hereto agree as
follows:
1. SERVICES TO THE CORPORATION. Indemnitee will serve, at the
will of the Corporation under separate contract, if any such contract exists, as
an officer and/or Director of the Corporation, or as a director, officer or
other fiduciary of an affiliate of the Corporation (including any employee
benefit plan of the Corporation) faithfully and to the best of his ability so
long as he is duly elected and qualified in accordance with the Certificate of
Incorporation and the Bylaws, as amended or amended and restated from time to
time, of the Corporation or of such affiliate (the "Organizational Documents");
provided, however, that Indemnitee may at any time and for any reason resign
from such position or any other position (subject to any contractual obligation
that Indemnitee may have assumed apart from this Agreement) and that the
Corporation or any affiliate shall have no obligation under this Agreement to
continue Indemnitee in such position or any other position.
2. INDEMNITY OF INDEMNITEE. The Corporation hereby agrees to hold
harmless and indemnify Indemnitee to the fullest extent authorized or permitted
by the Organizational Documents and the Delaware General Corporation Law, as
amended (the "Code"), as the same may be amended from time to time (but only to
the extent that any such amendment permits the Corporation to provide broader
indemnification rights than the Organizational Documents or the Code permitted
prior to adoption of such amendment).
3. ADDITIONAL INDEMNITY. In addition to and not in limitation of
the indemnification otherwise provided for herein, and subject only to the
Organizational Documents, the Code, any other applicable law and the exclusions
set forth in Section 4 hereof, the Corporation hereby further agrees to hold
harmless and indemnify Indemnitee against any and all reasonable 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
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connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, arbitral, administrative or investigative (including an
action by or in the right of the Corporation), to which Indemnitee is, was or at
any time becomes a party, or is threatened to be made a party, by the reason of
the fact that Indemnitee is, was or at any time becomes a director, officer,
employee or other agent of the Corporation or is or was serving or at any time
serves at the written request of the Corporation as a director, officer,
employee or other agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise.
4. LIMITATIONS ON INDEMNITY. No indemnity pursuant to this
Agreement shall be paid by the Corporation:
(a) on account of any claim against Indemnitee for an
accounting of profits made from the purchase or sale by Indemnitee of securities
of the Corporation, pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or similar provisions of
any federal, state or local statutory law; or
(b) for which payment has actually been made to
Indemnitee under a valid and collectible insurance policy or under a valid and
enforceable indemnity clause, bylaw or agreement, except in respect of any
excess beyond payment under such insurance, clause, bylaw or agreement; or
(c) in connection with any proceeding (or part thereof)
brought or made by Indemnitee against the Corporation, unless such
indemnification is expressly required to be made by law; or
(d) if indemnity is finally determined to be unlawful
under the Code.
5. NOTIFICATION AND DEFENSE OF CLAIM.
(a) Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee will, if a claim in
respect thereto is to be made against the Corporation under this Agreement,
notify the Corporation of the commencement thereof, but the failure to so notify
the Corporation will not relieve it from any liability which it may have to
Indemnitee otherwise under this Agreement. With respect to any such action, suit
or proceeding as to which Indemnitee so notifies the Corporation:
(i) the Corporation will be entitled to
participate therein at its own expense; and
(ii) except as otherwise provided below, to the
extent that it may desire, the Corporation
may assume the defense thereof.
(b) After notice from the Corporation to Indemnitee of
its election to assume the defense thereof, the Corporation will not be liable
to Indemnitee under this Agreement for any legal or other expenses subsequently
incurred by Indemnitee in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. Indemnitee
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shall have the right to employ counsel of his choosing in such action, suit or
proceeding but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof shall be at the expense
of Indemnitee unless (i) the employment of counsel by Indemnitee has been
authorized in writing by the Corporation, (ii) the Corporation and Indemnitee
shall reasonably conclude that there may be a conflict of interest between the
Corporation and Indemnitee in the conduct of the defense of such action, or
(iii) the Corporation shall not in fact have employed counsel to assume the
defense of such action, in each of which case the reasonable fees and expenses
of Indemnitee's counsel shall be paid by the Corporation.
(c) The Corporation shall not be liable to Indemnitee
under this Agreement for any amounts paid in settlement of any threatened or
pending action, suit or proceeding without its prior written consent. The
Corporation shall not settle any such action, suit or proceeding in any manner
which would impose any penalty or limitation on Indemnitee without Indemnitee's
prior written consent. Neither the Corporation nor Indemnitee will unreasonably
withhold or delay its or his consent to any proposed settlement.
6. PREPAYMENT OF EXPENSES. Unless Indemnitee otherwise elects,
expenses incurred in defending any civil or criminal action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt by the Corporation of a written
affirmation of Indemnitee's good faith belief that his conduct meets the
standards required for indemnification under the Code and the Organizational
Documents, and Indemnitee furnishes the Corporation a written undertaking,
executed personally or on his behalf, to repay any advances if it is ultimately
determined that he is not entitled to be indemnified by the Corporation under
this Agreement.
7. CONTINUATION OF INDEMNITY. All agreements and obligations of
the Corporation contained in this Agreement shall continue during the period in
which Indemnitee is a member of the Board of Directors and/or an officer of the
Corporation and shall continue thereafter so long as Indemnitee shall be subject
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, and whether formal or
informal, by reason of the fact that Indemnitee was a director and/or an officer
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, agent or consultant of another corporation,
partnership, joint venture, trust or other enterprise.
8. RELIANCE. the Corporation has entered into this Agreement in
order to induce Indemnitee to continue as a member of the Board of Directors
and/or an officer of the Corporation, as the case may be, and acknowledges that
Indemnitee is relying upon this Agreement in continuing in such capacity.
9. SEVERABILITY. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof.
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10. GENERAL.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to its
principles of conflicts of law.
(b) Neither this Agreement nor any rights or obligations
hereunder shall be assigned or transferred by Indemnitee.
(c) This Agreement shall be binding upon Indemnitee and
upon the Corporation, its successors and assigns, including successors by merger
or consolidation, and shall inure to the benefit of Indemnitee, his heirs,
personal representatives and permitted assigns and to the benefit of the
Corporation, its successors and assigns.
(d) No amendment, modification or termination of this
Agreement shall be effective unless in writing signed by both parties hereof.
[Signatures contained on following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
INDEMNITEE: WITNESS SYSTEMS, INC.
By:
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Chief Executive Officer
Name:
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Title: Date:
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Date:
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