INDEMNIFICATION AGREEMENT
EXHIBIT
10.18
This
Agreement is made as of the _____ day of _______ 2009, by and between SkillSoft
Corporation, a Delaware corporation (the “Corporation), and _______________ (the
“Indemnitee”), a director or officer of the Corporation.
WHEREAS,
it is essential to the Corporation to retain and attract as directors and
officers the most capable persons available, and
WHEREAS,
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,
and
WHEREAS,
it is now and has always been the express policy of the Corporation to indemnify
its directors and officers, and
WHEREAS,
the Indemnitee does not regard the protection available under the Corporation’s
Certificate of Incorporation and insurance as adequate in the present
circumstances, and may not be willing to serve or continue to serve as a
director or officer without adequate protection, and
WHEREAS,
the Corporation desires the Indemnitee to serve, or continue to serve, as a
director or officer 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 or officer 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 or officer 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,
(d) 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.
(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 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, 7 and 9, 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 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
(c) 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 10, 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. 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. 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 7. 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
8. 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 9, in the
event that the Corporation does not assume the defense pursuant to
Section 7 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 8 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 60 days after receipt by the
Corporation of the written request of the Indemnitee, unless the Corporation
determines within such 60-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
(b) (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.
(c) 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.
(d) 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 9. 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 until and terminate
upon the later of (a) six years after the date that the Indemnitee shall have
ceased to serve as a director or officer of the Corporation or, at the request
of the Corporation, as a director, officer, partner, trustee, member, employee
or agent of another corporation, partnership, joint venture, trust, limited
liability company or other enterprise or (b) the final termination of all
Proceedings pending on the date 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 10 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 an officer or 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 both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other 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:[ ]
(b) if to the
Corporation, to:
SkillSoft
Corporation
000
Xxxxxxxxxxxx Xxxx.
Xxxxxx,
XX 00000
Telecopier:
(000) 000-0000
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 and officers, 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 an officer
or 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
26. 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.
27. 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.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
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SKILLSOFT
CORPORATION
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By: ________________________
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Name: ________________________
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Title: ________________________
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INDEMNITEE:
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______________________________
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