Exhibit 10.7
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT, dated as of January __, 2000 between Centra
Software, Inc. (the "Corporation") and - (the "Officer").
WITNESSETH:
Whereas Officer is an officer of the Corporation and in such capacity
is performing a valuable service for the Corporation; and
Whereas Officer is willing to serve, continue to serve, and take on
additional service for or on behalf of the Corporation on the condition that he
be indemnified as herein provided; and
Whereas it is intended that Officer shall be paid promptly by the
Corporation all amounts necessary to effectuate in full the indemnity provided
herein.
NOW, THEREFORE, in consideration of the premises and the covenants in
this Agreement, and intending to be legally bound hereby, the parties hereto
agree as follows:
Except as otherwise indicated, capitalized terms shall have the
definitions set out in Section 19 below.
1. SERVICES BY OFFICER.
Officer agrees to serve as a Officer of the Corporation so long as he
is duly appointed in accordance with the applicable provisions of the Amended
and Restated Certificate of Incorporation and Amended and Restated By-Laws of
the Corporation until such time as he resigns or is removed from his position.
Officer may at any time and for any reason resign or be removed from such
position (subject to any other contractual obligation or other obligation
imposed by operation of law), in which event Officer shall have no obligation
under this Agreement to continue to serve as a Officer.
2. INDEMNIFICATION.
(a) The Corporation shall indemnify Officer against Expenses and
Liabilities in connection with any Proceeding arising out of acts or
omissions of Officer in his capacity as an Officer of the Corporation
occurring subsequent to the effective date hereof to the fullest extent
permitted by applicable law or the Amended and Restated Certificate of
Incorporation of the Corporation in effect on the effective date hereof or as
such law or Amended and Restated Certificate of Incorporation may from time
to time be amended (but, in the case of any such amendment, only to the
extent such amendment permits the Corporation to provide broader
indemnification rights than the law or Amended and Restated Certificate of
Incorporation permitted the Corporation to provide before such amendment).
The right to indemnification provided in the Amended and Restated Certificate
of Incorporation shall be presumed to have been relied upon by Officer in
serving or continuing to serve the Corporation and shall be
enforceable as a contract right. Without diminishing the scope of the
indemnification provided by this Section 2, the Corporation shall indemnify
Officer whenever he is or was a party or is threatened to be made a party to
any Proceeding, including without limitation any such Proceeding brought by
or in the right of the Corporation, because he is or was a Officer of the
Corporation or because of anything done or not done by him in such capacity,
against Expenses and Liabilities actually and reasonably incurred by Officer
or on his behalf in connection with such Proceeding, including the costs of
any investigation, defense, settlement or appeal, except that no
indemnification shall be made with respect to any claim, issue or matter if
Officer was finally adjudged to be liable to the Corporation by a court of
competent jurisdiction due to his gross negligence or willful misconduct
unless and to the extent that a Delaware Court of Chancery or the court in
which such action was heard determines that Officer is entitled to
indemnification for such amounts as the court deems proper. In addition to,
and not as a limitation of the foregoing, the rights of indemnification of
Officer provided under this Agreement shall include those rights set forth in
Xxxxxxxx 0, 0, 0 xxx 00 xxxxx.
(x) Officer shall be paid promptly by the Corporation all amounts
necessary to effectuate the foregoing indemnity.
3. ADVANCEMENT OF EXPENSES.
All reasonable Expenses incurred by or on behalf of Officer with
respect to a Proceeding shall be advanced from time to time by the Corporation
to him within thirty (30) days after the Corporation's receipt of a written
request for an advance of Expenses, whether prior to or after final disposition
of a Proceeding (except to the extent that there has been a Final Adverse
Determination that Officer is not entitled to be indemnified for such Expenses),
including without limitation any Proceeding brought by or in the right of the
Corporation. The written request for an advancement of any and all Expenses
under this paragraph shall contain reasonable detail of the Expenses incurred by
Officer. If required by law at the time of such advance, Officer hereby agrees
to repay the amounts advanced if it is ultimately determined that Officer is not
entitled to be indemnified pursuant to the terms of this Agreement.
4. LIMITATIONS.
The foregoing indemnity and advancement of Expenses shall apply only to
the extent that Officer has not been indemnified and reimbursed pursuant to such
insurance as the Corporation may maintain for Officer's benefit, or otherwise;
provided, however, that notwithstanding the availability of such other
indemnification and reimbursement, Officer may claim indemnification and
advancement of Expenses pursuant to this Agreement by assigning to the
Corporation, at its request, Officer's claims under such insurance to the extent
Officer has been paid by the Corporation.
5. INSURANCE AND FUNDING.
The Corporation may purchase and maintain insurance to protect itself
and/or Officer against any Expenses and Liabilities in connection with any
Proceeding to the fullest extent
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permitted by applicable securities laws. The Corporation may create a trust
fund, grant an interest or use other means (including, without limitation, a
letter of credit) to ensure the payment of such amounts as may be necessary to
effect indemnification or advancement of Expenses as provided in this Agreement.
6. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) Whenever Officer believes that he is entitled to indemnification
pursuant to this Agreement, Officer shall submit a written request for
indemnification to the Corporation. Any request for indemnification shall
include sufficient documentation or information reasonably available to Officer
to support his claim for indemnification. Officer shall submit his claim for
indemnification within a reasonable time not to exceed five years after any
judgment, order, settlement, dismissal, arbitration award, conviction,
acceptance of a plea of nolo contendere or its equivalent, final termination or
other disposition or partial disposition of any Proceeding, whichever is the
later date for which Officer requests indemnification. The Chief Executive
Officer or the President or other appropriate officer shall, promptly upon
receipt of Officer's request for indemnification, advise the Board of Directors
in writing that Officer has made such request. Determination of Officer's
entitlement to indemnification shall be made not later than ninety (90) days
after the Corporation's receipt of his written request for such indemnification.
(b) The Officer shall be entitled to select the forum in which
Officer's entitlement to indemnification will be heard, which selection shall be
included in the written request for indemnification required in Section 6(a).
The forum shall be any one of the following:
(i) A quorum of the Board of Directors of the Corporation
consisting of disinterested directors;
(ii) Independent Legal Counsel, who shall make the determination
in a written opinion; or
(iii) A panel of three arbitrators, one selected by the
Corporation, another by Officer and the third by the first two arbitrators
selected. If for any reason three arbitrators are not selected within thirty
(30) days after the appointment of the first arbitrator, then selection of
additional arbitrators shall be made by the American Arbitration Association. If
any arbitrator resigns or is unable to serve in such capacity for any reason,
the American Arbitration Association shall select his replacement. The
arbitration shall be conducted pursuant to the commercial arbitration rules of
the American Arbitration Association now in effect.
If Officer fails to make such designation, his claim shall be
determined by an appropriate court of the State of Delaware.
7. FEES AND EXPENSES OF INDEPENDENT LEGAL COUNSEL.
The Corporation agrees to pay the reasonable fees and expenses of
Independent Legal Counsel or a panel of three arbitrators should such counsel or
such panel of arbitrators be
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retained to make a determination of Officer's entitlement to indemnification
pursuant to Section 6 of this Agreement, and to fully indemnify such counsel
or arbitrators against any and all expenses and losses incurred by any of
them arising out of or relating to this Agreement or their engagement
pursuant hereto.
8. REMEDIES OF OFFICER.
(a) In the event that (1) a determination pursuant to Section 6 hereof
is made that Officer is not entitled to indemnification, (2) advances of
Expenses are not made pursuant to this Agreement, (3) payment has not been
timely made following a determination of entitlement to indemnification pursuant
to this Agreement, or (4) Officer otherwise seeks enforcement of this Agreement,
Officer shall be entitled to a final adjudication in an appropriate court of the
State of Delaware of his rights. Alternatively, Officer at his 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 now in
effect, which award is to be made within ninety (90) days following the filing
of the demand for arbitration. The Corporation shall not oppose Officer's right
to seek any such adjudication or arbitration award.
(b) In the event that a determination that Officer is not entitled to
indemnification, in whole or in part, has been made pursuant to Section 6
hereof, the decision in the judicial Proceeding or arbitration provided in
paragraph (a) of this Section 8 shall be made de novo and Officer shall not be
prejudiced by reason of a determination that he is not entitled to
indemnification.
(c) If a determination that Officer is entitled to indemnification has
been made pursuant to Section 6 hereof or otherwise pursuant to the terms of
this Agreement, the Corporation shall be bound by such determination in the
absence of (1) a misrepresentation of a material fact by Officer or (2) a
specific finding (which has become final) by an appropriate court of the State
of Delaware that all or any part of such indemnification is expressly prohibited
by law.
(d) In any court Proceeding pursuant to this Section 8, the Corporation
shall be precluded from asserting that the procedures and presumptions of this
Agreement are not valid, binding and enforceable. The Corporation shall
stipulate in any such court or before any such arbitrator that the Corporation
is bound by all the provisions of this Agreement and is precluded from making
any assertion to the contrary.
(e) Expenses reasonably incurred by Officer in connection with his
request for indemnification under, seeking enforcement of or to recover damages
for breach of this Agreement shall be borne by the Corporation.
9. MODIFICATION, WAIVER, TERMINATION AND CANCELLATION.
No supplement, modification, termination, cancellation or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the
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provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver.
10. NOTICE BY OFFICER AND DEFENSE OF CLAIM.
Officer shall promptly notify the Corporation in writing upon being
served with any summons, citation, subpoena, complaint, indictment, information
or other document relating to any matter, whether civil, criminal,
administrative or investigative, but the omission so to notify the Corporation
will not relieve it from any liability which it may have to Officer if such
omission does not prejudice the Corporation's rights, the Corporation will be
relieved from liability only to the extent of such prejudice; nor will such
omission relieve the Corporation from any liability which it may have to Officer
otherwise than under this Agreement. With respect to any Proceeding as to which
Officer notifies the Corporation of the commencement thereof:
(a) The Corporation will be entitled to participate therein at its own
expenses; and
(b) The Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel reasonably
satisfactory to Officer;
provided, however, that the Corporation shall not be entitled to assume the
defense of any Proceeding if Officer shall have reasonably concluded that there
may be a conflict of interest between the Corporation and Officer with respect
to such Proceeding. After notice from the Corporation to Officer of its election
to assume the defense thereof, the Corporation will not be liable to Officer
under this Agreement for any Expenses subsequently incurred by Officer in
connection with the defense thereof, other than reasonable costs of
investigation or as otherwise provided below. Officer shall have the right to
employ its own counsel in 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 Officer unless:
(i) The employment of counsel by Officer has been authorized by
the Corporation;
(ii) Officer shall have reasonably concluded that counsel engaged
by the Corporation may not adequately represent Officer;
(iii) The Corporation shall not in fact have employed counsel to
assume the defense in such Proceeding or shall not in fact have assumed such
defense and be acting in connection therewith with reasonable diligence; in each
of which cases the fees and Expenses of such counsel shall be at the expense of
the Corporation.
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(c) The Corporation shall not settle any Proceeding in any manner which
would impose any penalty or limitation on Officer without Officer's written
consent; provided, however, that Officer will not unreasonably withhold his
consent to any proposed settlement.
11. NOTICES.
All notices, requests, demands and other communication hereunder shall
be in writing and shall be deemed to have been duly given if (i) delivered by
hand and receipted for by the party to whom said notice or other communication
shall have been directed, or (ii) mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:
(a) If to Officer, to:
[Address]
(b) If to the Corporation, to:
Centra Software, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
or to such other address as may have been furnished to Officer by the
Corporation or to the Corporation by Officer, as the case may be.
12. NONEXCLUSIVITY.
The rights of Officer hereunder shall not be deemed exclusive of any
other rights to which Officer may now or in the future be entitled under the
Delaware General Corporation Law, the Corporation's Amended and Restated
Certificate of Incorporation or Amended and Restated By-laws, or any agreements,
vote of stockholders, resolutions of the Board of Directors or otherwise.
13. BINDING EFFECT DURATION AND SCOPE OF AGREEMENT.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and assigns
(including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business or assets of the
Corporation), spouses, heirs and personal and legal representatives. This
Agreement shall continue in effect during the Indemnification Period, regardless
of whether Officer continues to serve as an officer or Officer.
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14. SEVERABILITY.
If any provision or provisions of this Agreement (or any portion
thereof) 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 shall not in any way be affected or impaired
thereby; and
(b) To the fullest extent legally possible, the provisions of this
Agreement shall be construed so as to give effect to the intent of any provision
held invalid, illegal or unenforceable.
15. GOVERNING LAW AND INTERPRETATION OF AGREEMENT.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware. If the laws of the State of
Delaware are hereafter amended to permit the Corporation to provide
indemnification rights that said laws permitted to Corporation to provide prior
to such amendment, the rights of indemnification and advancement of Expenses
conferred by this Agreement shall automatically be broadened to the fullest
extent permitted by the laws of the State of Delaware, as so amended.
16. CONSENT TO JURISDICTION.
The Corporation and Officer each irrevocably consent to the
jurisdiction of the courts of the State of Delaware for all purposes in
connection with any action or Proceeding which arises out of or relates to this
Agreement and agree that any action instituted under this Agreement shall be
brought only in the state courts of the State of Delaware.
17. ENTIRE AGREEMENT.
This Agreement represents the entire agreement between the parties
hereto, and there are no other agreements, contracts or understandings between
the parties hereto with respect to the subject matter of this Agreement, except
as specifically referred to herein or as provided in Section 12 hereof.
18. 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.
19. CERTAIN DEFINITIONS.
(a) "Disinterested Officer" shall mean a Officer of the Corporation who
is not or was not a party to the Proceeding in respect of which indemnification
is being sought by Officer.
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(b) "Expenses" shall include all direct and indirect costs (including,
without limitation, attorneys' fees, retainers, court costs, printing and
binding costs, telephone charges, postage, delivery service fees, all other
disbursements or out-of-pocket expenses and reasonable compensation for time
spent by Officer for which he is otherwise not compensated by the Corporation)
actually and reasonably incurred in connection with a Proceeding or establishing
or enforcing a right to indemnification under this Agreement, applicable law or
otherwise; provided, however, that "Expenses" shall not include any Liabilities.
(c) "Final Adverse Determination" shall mean that a determination that
Officer is not entitled to indemnification shall have been made pursuant to
Section 6 hereof and either (1) a final adjudication in a Delaware court or
decision of an arbitrator pursuant to Section 8(a) hereof shall have denied
Officer's right to indemnification hereunder, or (2) Officer shall have failed
to file a complaint in a Delaware court or seek an arbitrator's award pursuant
to Section 8(a) for a period of one hundred twenty (120) days after the
determination made pursuant to Section 6 hereof.
(d) "Indemnification Period" shall mean the period of time during which
Officer shall continue to serve as a Officer of the Corporation, and thereafter
so long as Officer shall be subject to any possible Proceeding arising out of
acts or omissions of Officer as a Officer of the Corporation.
(e) "Independent Legal Counsel" shall mean a law firm or a member of a
law firm selected by the Corporation and approved by Officer (which approval
shall not be unreasonably withheld) and that neither is presently nor in the
past five years has been retained to represent: (1) the Corporation, in any
material matter, or (2) any other party to the Proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the term
"Independent Legal 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 Corporation or Officer in an
action to determine Officer's right to indemnification under this Agreement.
(f) "Liabilities" shall mean liabilities of any type whatsoever
including, but not limited to, any judgments, fines, ERISA excise taxes and
penalties, penalties and amounts paid in settlement (including all interest
assessments and other charges paid or payable in connection with or in respect
of such judgments, fines, penalties or amounts paid in settlement) of any
Proceeding.
(g) "Proceeding" shall mean any threatened, pending or completed
action, claim, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other Proceeding whether civil,
criminal, administrative or investigative, including any appeal therefrom.
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CENTRA SOFTWARE, INC.
By:
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Title:
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Officer
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