INDEMNIFICATION AGREEMENT
EXHIBIT 10.12
This Agreement is made as of the 23rd day of July 2008, by and between LogMeIn, Inc., a
Delaware corporation (the “Corporation), and Xxxxx Xxxxx (the “Indemnitee”), a director of the
Corporation.
WHEREAS, it is essential to the Corporation to retain and attract as directors the most
capable persons available, and
WHEREAS, the increase in corporate litigation subjects directors to expensive litigation
risks, and
WHEREAS, it is now and has always been the express policy of the Corporation to indemnify its
directors, and
WHEREAS, the Corporation desires the Indemnitee to serve, or continue to serve, as a director
of the Corporation.
NOW THEREFORE, the Corporation and the Indemnitee do hereby agree as follows:
1. Agreement to Serve. The Indemnitee agrees to serve or continue to serve as a
director of the Corporation for so long as the Indemnitee is duly elected or appointed or until
such time as the Indemnitee tenders a resignation in writing.
2. Definitions. As used in this Agreement:
(a) The term “Proceeding” shall include any threatened, pending or completed action,
suit, arbitration, alternative dispute resolution proceeding, administrative hearing or other
proceeding, whether brought by or in the right of the Corporation or otherwise and whether of
a civil, criminal, administrative or investigative nature, and any appeal therefrom.
(b) The term “Corporate Status” shall mean the status of a person who is or was, or has
agreed to become, a director of the Corporation, or is or was serving, or has agreed to
serve, at the request of the Corporation, as a director, officer, fiduciary, partner,
trustee, member, employee or agent of, or in a similar capacity with, another corporation,
partnership, joint venture, trust, limited liability company or other enterprise.
(c) The term “Expenses” shall include, without limitation, attorneys’ fees, retainers,
court costs, transcript costs, fees and expenses of experts, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service fees and
other disbursements or expenses of the types customarily incurred in connection with
investigations, judicial or administrative proceedings or appeals, but shall not include the
amount of judgments, fines or penalties against Indemnitee or amounts paid in settlement in
connection with such matters.
(d) References to “other enterprise” shall include employee benefit plans; references to
“fines” shall include any excise tax assessed with respect to any employee benefit plan;
references to “serving at the request of the Corporation” shall include any service as a
director, officer, employee or agent of the Corporation which imposes duties on, or involves
services by, such director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good faith and in a
manner such person
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 of Indemnitee. Subject to Sections 6, 8 and 10, the Corporation shall
indemnify the Indemnitee in connection with any Proceeding as to which the Indemnitee is, was or is
threatened to be made a party (or is otherwise involved) by reason of the Indemnitee’s Corporate
Status, to the fullest extent permitted by law (as such may be amended from time to time). In
furtherance of the foregoing and without limiting the generality thereof:
(a) Indemnification in Third-Party Proceedings. The Corporation shall indemnify
the Indemnitee in accordance with the provisions of this Section 3(a) if the Indemnitee was
or is a party to or threatened to be made a party to or otherwise involved in any Proceeding
(other than a Proceeding by or in the right of the Corporation to procure a judgment in its
favor or a Proceeding referred to in Section 6 below) by reason of the Indemnitee’s Corporate
Status or by reason of any action alleged to have been taken or omitted in connection
therewith, against all Expenses, judgments, fines, penalties and amounts paid in settlement
actually and reasonably incurred by or on behalf of the Indemnitee in connection with such
Proceeding, if the Indemnitee acted in good faith and in a manner which the Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the Corporation (which
may include negligent acts) and, with respect to any criminal Proceeding, had no reasonable
cause to believe that his or her conduct was unlawful.
(b) Indemnification in Proceedings by or in the Right of the Corporation. The
Corporation shall indemnify the Indemnitee in accordance with the provisions of this Section
3(b) if the Indemnitee was or is a party to or threatened to be made a party to or otherwise
involved in any Proceeding by or in the right of the Corporation to procure a judgment in its
favor by reason of the Indemnitee’s Corporate Status or by reason of any action alleged to
have been taken or omitted in connection therewith, against all Expenses and, to the extent
permitted by law, amounts paid in settlement actually and reasonably incurred by or on behalf
of the Indemnitee in connection with such Proceeding, if the Indemnitee acted in good faith
and in a manner which the Indemnitee reasonably believed to be in, or not opposed to, the
best interests of the Corporation, except that, if applicable law so provides, no
indemnification shall be made under this Section 3(b) in respect of any claim, issue, or
matter as to which the Indemnitee shall have been adjudged to be liable to the Corporation,
unless, and only to the extent, that the Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite the
adjudication of such liability but in view of all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnity for such Expenses as the Court of
Chancery or such other court shall deem proper.
4. Indemnification of Expenses of Successful Party. Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee has been successful, on the merits
or otherwise, in defense of any Proceeding or in defense of any claim, issue or matter therein
(other than a Proceeding referred to in Section 6), the Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by or on behalf of the Indemnitee in connection
therewith. Without limiting the foregoing, if any Proceeding or any claim, issue or matter therein
is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i)
the disposition being adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was
liable to the Corporation, (iii) a plea of guilty or nolo
contendere by the Indemnitee, (iv) an
adjudication that the Indemnitee did not act in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of the Corporation, and (v) with
respect to any criminal proceeding, an adjudication that the Indemnitee had reasonable cause to
believe his or her conduct was unlawful, the Indemnitee shall be considered for the purposes
hereof to have been wholly successful with respect thereto.
5. Indemnification for Expenses of a Witness. To the extent that the Indemnitee is,
by reason of the Indemnitee’s Corporate Status, a witness in any Proceeding to which the Indemnitee
is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by or on behalf of the Indemnitee in connection therewith.
6. Exceptions to Right of Indemnification. Notwithstanding anything to the contrary
in this Agreement, except as set forth in Section 11, the Corporation shall not indemnify the
Indemnitee in connection with a Proceeding (or part thereof) initiated by the Indemnitee unless the
initiation thereof was approved by the Board of Directors of the Corporation. Notwithstanding
anything to the contrary in this Agreement, the Corporation shall not indemnify the Indemnitee to
the extent the Indemnitee is reimbursed from the proceeds of insurance, and in the event the
Corporation makes any indemnification payments to the Indemnitee and the Indemnitee is subsequently
reimbursed from the proceeds of insurance, the Indemnitee shall promptly refund such
indemnification payments to the Corporation to the extent of such insurance reimbursement.
7. Contribution in the Event of Joint Liability. If the indemnification provided for
in this Agreement for any reason other than the statutory limitations of applicable law or as
provided for in this Agreement, is held by a court of competent jurisdiction to be unavailable to
an Indemnitee in respect of any losses, claims, damages, expenses or liabilities in which the
Corporation is jointly liable with such Indemnitee, as the case may be (or would be jointly liable
if joined), then the Corporation, in lieu of indemnifying the Indemnitee thereunder, shall
contribute to the amount actually and reasonably incurred and paid or payable by the Indemnitee as
a result of such losses, claims, damages, expenses or liabilities in such proportion as is
appropriate to reflect (a) the relative benefits received by the Corporation and the Indemnitee,
and (b) the relative fault of the Corporation and such Indemnitee in connection with the action or
inaction that resulted in such losses, claims, damages, expenses or liabilities, as well as any
other relevant equitable considerations. The relative fault of the Corporation and the Indemnitee
shall be determined by reference to, among other things, (i) whether an untrue or alleged untrue
statement of a material fact or an omission or alleged omission to state a material fact relates to
information supplied by the Corporation or the Indemnitee, (ii) the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent the circumstances resulting
in such losses, claims, damages, expenses or liabilities, (iii) the degree to which the parties’
actions were motivated by intent to gain personal profit or advantage, (iv) the degree to which the
parties’ liability is primary or secondary, and (v) the degree to which the parties’ conduct is
active or passive. The Corporation and the Indemnitee agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata or per capita
allocation or by any other method of allocation which does not take account of the equitable
considerations referred to in this paragraph. No person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933, as amended)
shall be entitled to contribution from any person who was not found guilty of such fraudulent
misrepresentation.
8. Notification and Defense of Claim. As a condition precedent to the Indemnitee’s
right to be indemnified, the Indemnitee must notify the Corporation in writing as soon as
practicable of any Proceeding for which indemnity will or could be sought; provided that failure or
delay to provide such notice shall not limit the Indemnitee’s right to indemnification hereunder
except to the extent the Corporation is prejudiced by such failure or delay. With respect to any
Proceeding of which the Corporation is so notified, the Corporation will be entitled to participate
therein at its own expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to the Indemnitee. After notice from the Corporation to the
Indemnitee of its election so to assume such defense, the Corporation shall not be liable to the
Indemnitee for any legal or other expenses subsequently
incurred by the Indemnitee in connection with such Proceeding, other than as provided below in
this Section 8. The Indemnitee shall have the right to employ his or her own counsel in connection
with such 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 the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by the Corporation, (ii)
counsel to the Indemnitee shall have reasonably concluded that there may be a conflict of interest
or position on any significant issue between the Corporation and the Indemnitee in the conduct of
the defense of such Proceeding or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such Proceeding, in each of which cases the fees and expenses of counsel for
the Indemnitee shall be at the expense of the Corporation, except as otherwise expressly provided
by this Agreement, and provided that Indemnitee’s counsel shall cooperate reasonably with the
Corporation’s counsel to minimize the cost of defending claims against the Corporation and the
Indemnitee. The Corporation shall not be entitled, without the consent of the Indemnitee, to
assume the defense of any claim brought by or in the right of the Corporation or as to which
counsel for the Indemnitee shall have reasonably made the conclusion provided for in clause (ii)
above. The Corporation shall not be required to indemnify the Indemnitee under this Agreement for
any amounts paid in settlement of any Proceeding effected without its written consent. The
Corporation shall not settle any Proceeding in any manner that would impose any penalty or
limitation on the Indemnitee without the Indemnitee’s written consent. Neither the Corporation nor
the Indemnitee will unreasonably withhold or delay their consent to any proposed settlement.
9. Advancement of Expenses. Subject to the provisions of Section 10, in the event
that the Corporation does not assume the defense pursuant to Section 8 of any Proceeding of which
the Corporation receives notice under this Agreement, any Expenses actually and reasonably incurred
by or on behalf of the Indemnitee in defending such Proceeding shall be paid by the Corporation in
advance of the final disposition of such Proceeding; provided, however, that the payment of
such Expenses incurred by or on behalf of the Indemnitee in advance of the final disposition of
such Proceeding shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee
to repay all amounts so advanced in the event that it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Corporation as authorized in this Agreement.
Such undertaking shall be accepted without reference to the financial ability of the Indemnitee to
make repayment. Any advances and undertakings to repay pursuant to this Section 9 shall be
unsecured and interest-free.
10. Procedures.
(a) In order to obtain indemnification or advancement of Expenses pursuant to this
Agreement, the Indemnitee shall submit to the Corporation a written request, including in
such request such documentation and information as is reasonably available to the Indemnitee
and is reasonably necessary to determine whether and to what extent the Indemnitee is
entitled to indemnification or advancement of Expenses. Any such indemnification or
advancement of Expenses shall be made promptly, and in any event within 20 days after receipt
by the Corporation of the written request of the Indemnitee, unless the Corporation
determines within such 20-day period that the Indemnitee did not meet the applicable standard
of conduct. Such determination, and any determination that advanced Expenses must be repaid
to the Corporation, shall be made in each instance (a) by a majority vote of the directors of
the Corporation consisting of persons who are not at that time parties to the Proceeding
(“disinterested directors”), whether or not a quorum, (b) by a committee of disinterested
directors designated by a majority vote of disinterested directors, whether or not a quorum,
(c) if there are no disinterested directors, or if the disinterested directors so direct, by
independent legal counsel (who may, to the extent permitted by applicable law, be regular
legal counsel to the Corporation) in a written opinion, or (d) by the stockholders of the
Corporation.
(b) The termination of any Proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that
the Indemnitee did not act in good faith and in a manner that the Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation, and, with
respect to any criminal Proceeding, had reasonable cause to believe that his or her conduct
was unlawful.
(c) The Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to the 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 the Indemnitee and reasonably necessary to such determination. Any
Expenses actually and reasonably incurred by the Indemnitee in so cooperating shall be borne
by the Corporation (irrespective of the determination as to the Indemnitee’s entitlement to
indemnification) and the Corporation hereby indemnifies the Indemnitee therefrom.
11. Remedies. The right to indemnification or advancement of Expenses as provided by
this Agreement shall be enforceable by the Indemnitee in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part, or if no disposition thereof is made within
the applicable period referred to in Section 10. Unless otherwise required by law, the burden of
proving that indemnification or advancement of Expenses is not appropriate shall be on the
Corporation. Neither the failure of the Corporation to have made a determination prior to the
commencement of such action that indemnification is proper in the circumstances because the
Indemnitee has met the applicable standard of conduct, nor an actual determination by the
Corporation that the Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that the Indemnitee has not met the applicable standard of
conduct. The Indemnitee’s Expenses actually and reasonably incurred in connection with
successfully establishing the Indemnitee’s right to indemnification, in whole or in part, in any
such Proceeding shall also be indemnified by the Corporation.
12. Partial Indemnification. If the Indemnitee is entitled under any provision of
this Agreement to indemnification by the Corporation for some or a portion of the Expenses,
judgments, fines, penalties or amounts paid in settlement actually and reasonably incurred by or on
behalf of the Indemnitee in connection with any Proceeding but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify the Indemnitee for the portion of such
Expenses, judgments, fines, penalties or amounts paid in settlement to which the Indemnitee is
entitled.
13. Subrogation. In the event of any payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of recovery of the
Indemnitee, who shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the Corporation to bring
suit to enforce such rights.
14. Term of Agreement. This Agreement shall continue so long as (a) Indemnitee could
be subject to any possible Proceeding subject to indemnification by reason of Indemnitee’s
Corporate Status and shall be applicable to Proceedings commenced or continued after execution of
this Agreement, whether arising from acts or omissions occurring before or after such execution or
(b) the final termination of all Proceedings pending during the period set forth in clause (a) in
respect of which the Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by the Indemnitee pursuant to Section 11 of this
Agreement relating thereto.
15. Indemnification Hereunder Not Exclusive. The indemnification and advancement of
Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which the
Indemnitee may be entitled under the Certification of Incorporation, the By-Laws, any other
agreement, any vote of stockholders or disinterested directors, the General Corporation Law of
Delaware, any other law (common or statutory), or otherwise, both as to action in the Indemnitee’s
official capacity and as to action in another capacity while holding office for the Corporation.
Nothing contained in this Agreement shall be deemed to prohibit the Corporation from purchasing and
maintaining insurance, at its expense, to protect itself or the Indemnitee against any expense,
liability or loss incurred by it or the Indemnitee in any such capacity, or arising out of the
Indemnitee’s status as such, whether or not the Indemnitee would be indemnified against such
expense, liability or loss under this Agreement; provided that the Corporation shall not be liable
under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the
extent that the Indemnitee has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.
16. No Special Rights. Nothing herein shall confer upon the Indemnitee any right to
continue to serve as a director of the Corporation for any period of time or at any particular rate
of compensation.
17. Savings Clause. If this Agreement or any portion thereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify the Indemnitee as to Expenses, judgments, fines, penalties and amounts paid in settlement
with respect to any Proceeding to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated and to the fullest extent permitted by applicable
law.
18. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall constitute the original.
19. Successors and Assigns. This Agreement shall be binding upon the Corporation and
its successors and assigns and shall inure to the benefit of the estate, heirs, executors,
administrators and personal representatives of the Indemnitee.
20. 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.
21. Modification and Waiver. This Agreement may be amended from time to time to
reflect changes in Delaware law or for other reasons. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the parties hereto. No waiver of any
of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof nor shall any such waiver constitute a continuing waiver.
22. Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been given (i) when delivered by hand or (ii) if mailed
by certified or registered mail with postage prepaid, on the third day after the date on which it
is so mailed:
(a)
|
if to the Indemnitee, to: | 00000 Xxxxxxxxx Xxxx Xxx Xxxxx Xxxxx, XX 00000 |
||
(b)
|
if to the Corporation, to: | LogMeIn, Inc. 000 Xxxxxxx Xxxx Xxxxx Xxxxxx, XX 00000 |
| Fax: (000) 000-0000 Attn: General Counsel |
or to such other address as may have been furnished to the Indemnitee by the Corporation or to the
Corporation by the Indemnitee, as the case may be.
23. Applicable Law. This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Delaware. The Indemnitee may elect to have the right
to indemnification or reimbursement or advancement of Expenses interpreted on the basis of the
applicable law in effect at the time of the occurrence of the event or events giving rise to the
applicable Proceeding, to the extent permitted by law, or on the basis of the applicable law in
effect at the time such indemnification or reimbursement or advancement of Expenses is sought.
Such election shall be made, by a notice in writing to the Corporation, at the time indemnification
or reimbursement or advancement of Expenses is sought; provided, however, that if
no such notice is given, and if the General Corporation Law of Delaware is amended, or other
Delaware law is enacted, to permit further indemnification of the directors, then the Indemnitee
shall be indemnified to the fullest extent permitted under the General Corporation Law, as so
amended, or by such other Delaware law, as so enacted.
24. Enforcement. The Corporation expressly confirms and agrees that it has entered
into this Agreement in order to induce the Indemnitee to continue to serve as a director of the
Corporation, and acknowledges that the Indemnitee is relying upon this Agreement in continuing in
such capacity.
25. Entire Agreement. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supercedes all prior agreements,
whether oral or written, by any officer, employee or representative of any party hereto in respect
of the subject matter contained herein; and any prior agreement of the parties hereto in respect of
the subject matter contained herein is hereby terminated and cancelled. For avoidance of doubt,
the parties confirm that the foregoing does not apply to or limit the Indemnitee’s rights under
Delaware law or the Corporation’s Certificate of Incorporation or By-Laws.
26. Consent to Suit. In the case of any dispute under or in connection with this
Agreement, the Indemnitee may only bring suit against the Corporation in the Court of Chancery of
the State of Delaware. The Indemnitee hereby consents to the exclusive jurisdiction and venue of
the courts of the State of Delaware, and the Indemnitee hereby waives any claim the Indemnitee may
have at any time as to forum non conveniens with respect to such venue. The Corporation shall have
the right to institute any legal action arising out of or relating to this Agreement in any court
of competent jurisdiction. Any judgment entered against either of the parties in any proceeding
hereunder may be entered and enforced by any court of competent jurisdiction.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
| CORPORATION: |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | CEO | |||
| INDEMNITEE: |
||||
| /s/ Xxxxx Xxxxx | ||||
| Xxxxx Xxxxx | ||||
